Citation Nr: 1325679	
Decision Date: 08/14/13    Archive Date: 08/16/13

DOCKET NO.  09-38 490	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for hearing loss.

2.  Entitlement to service connection for bilateral hearing loss.

3.  Entitlement to a rating for intervertebral disc syndrome and L5-S1 degenerative disc disease (DDD) greater than 10 percent prior to October 22, 2008, and greater than 40 percent thereafter.


ATTORNEY FOR THE BOARD

Andrew Mack, Counsel


INTRODUCTION

The Veteran served on active duty from December 1983 to September 2004. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

In a June 2013 rating decision, the RO granted a rating of 40 percent for intervertebral disc syndrome and L5-S1 DDD effective October 22, 2008.  Because a disability rating of 40 percent does not represent the maximum rating available for the Veteran's disability, and because it does not cover the entire appeal period, the propriety of the ratings remains an issue for appellate review, and the Board has identified this issue as listed on the cover page.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); AB v. Brown, 6 Vet. App. 35 (1993).

Also, in the June 2013 rating decision, the RO granted service connection for left-sided sciatica with an assigned rating of 20 percent, effective November 7, 2008, and informed the Veteran of his rights to appeal the decision in an accompanying June 2013 letter.  

The Veteran has one year in which to appeal such decision before it becomes final, during which time he is permitted to submit additional evidence and argument.  See 38 U.S.C.A. § 7015; 38 C.F.R. § 3.104 (2012).  Therefore, the Board will not address any matter pertaining to the initial rating assigned in the June 2013 rating decision at this time.  If the Veteran wishes to appeal any aspect of the June 2013 decision, he must file a notice of disagreement within one year of the date that such decision was mailed to him.  

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. 


FINDINGS OF FACT

1.  The claim for service connection for hearing loss was previously denied by the RO in decision in April 2005, the Veteran did not appeal that decision, and no new evidence pertinent to that claim was received by VA within one year from the date that the RO mailed notice of the determination to the Veteran.

2.  The additional evidence received since the final rating decision by the RO in April 2005 relates to an unestablished fact necessary to substantiate the claim.

3.  The Veteran's current bilateral hearing loss disability is directly related to service.

4.  During the period pertinent to his June 2008 claim for an increased rating and prior to October 22, 2008, the Veteran's spine disability was primarily manifested by pain, stiffness, flexion limited, at most, to 85 degrees with pain elicited at 80 degrees, minimal restriction of other range of motion, and no incapacitating episodes.

5.  Beginning October 22, 2008, the Veteran's spine disability has been primarily manifested by constant pain and limitation of motion to 30 degrees or less with flare-ups resulting in limited ability to perform normal working movement of his body, but has not approximated unfavorable ankylosis of the entire thoracolumbar spine, and has been productive, at the very most, of at least four weeks but less than six weeks duration of incapacitating episodes over a 12-month period.


CONCLUSIONS OF LAW

1.  The April 2005 rating decision denying service connection for hearing loss is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156(b) (2012).

2.  The additional evidence presented since the April 2005 rating decision is new and material, and the claim for hearing loss is reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).

3.  The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012).

4.  The criteria for a rating for intervertebral disc syndrome and L5-S1 DDD greater than 10 percent prior to October 22, 2008, and greater than 40 percent thereafter, have not been met.  38 U.S.C.A. § 1155, 5107, 5110(g) (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243, Plate V (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

New and Material Evidence

Pertinent procedural regulations provide that "[n]othing in [38 U.S.C.A. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C.A. § 5108]."  38 U.S.C.A. § 5103A (f) (West 2002).  Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim.  38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). 

New evidence means existing evidence not previously submitted to VA.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2012). 

In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim.  In determining whether evidence is new and material, the credibility of the evidence is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).  In Elkins v. West, 12 Vet. App. 209   (1999), the Court of Appeals for Veterans Claims (Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108.  Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled.  See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999).  The Court recently held that the law should be interpreted to enable reopening of a claim, rather than to preclude it.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).

The RO denied service connection for hearing loss in April 2005.  That rating decision was not appealed, and no new evidence pertinent to that claim was received by VA within one year from the date that the RO mailed notice of the determination to the Veteran.  Furthermore, VA has not received or associated with the claims file any relevant official service department records that existed and had not been associated with the claims file at the time of the April 2005 decision.  Therefore, the April 2005 decision is final.  38 U.S.C.A. § 7105 (West 2002), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012).  See also 38 C.F.R. § 3.156(b), (c).  The basis of the prior final denial was the RO's finding that no evidence of the claimed condition was of record.  Thus, in order for the Veteran's claim to be reopened, evidence must have been added to the record since the April 2005 rating decision that addresses this basis. 

Evidence submitted and obtained since the April 2005 rating decision includes Army Health Center and VA medical records beginning in September 2008 indicating that the Veteran has a bilateral hearing loss disability in accordance with VA regulations.  See 38 C.F.R. § 3.385.  Without addressing the merits of this evidence, the Board finds that these records address the issue of whether a current hearing loss disability exists.  Justus, 3 Vet. App. at 512-13.  Thus, this evidence is both "new," as it has not previously been considered by VA, and "material," as it raises the reasonable possibility of substantiating the Veteran's claim. 

The Board thus finds that new and material evidence has been submitted to reopen the issue of entitlement to service connection for hearing loss since the April 2005 rating decision.  On this basis, the issue of entitlement to service connection for hearing loss is reopened.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

In addition, for certain chronic diseases, such as organic diseases of the nervous system, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within a prescribed period following discharge from service; the presumptive period for arthritis is one year.  38 C.F.R. §§ 3.307, 3.309(a).  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases.  38 C.F.R. §§ 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385. 

The provisions of 38 C.F.R. § 3.385 do not require that hearing loss be shown as defined in that regulation at the time of separation from service, if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability.  Hensley v. Brown, 5 Vet. App. 155 (1993).

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  As a general matter, a layperson is not capable of opining on matters requiring medical knowledge.  See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997).  In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462   (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183.

In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). 

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A.  § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 

In this case, the Veteran's service records reflect that he served as a nondestructive inspection craftsman during his service from December 1983 to September 2004.

Service treatment records reflect that, at the time of examination for entry into service in September 1983, on audiological testing, pure tone thresholds in the right ear, in decibels, were 5, 15, 0, 0, and 0 at 500, 1000, 2000, 3000, and 4000 Hertz, respectively; pure tone thresholds in the left ear, in decibels, were 5, 15, 5, 5, and 5 at 500, 1000, 2000, 3000, and 4000 Hertz, respectively.  The Veteran underwent several subsequent hearing conservation tests and audiological evaluations between January 1992 and October 2003; during this period he was noted to have been routinely exposed to very loud noise as a result of his service duties, providing highly probative evidence in support of his claim.

In October 2003, the Veteran was given audiological evaluations three times in four days.  On these three audiological tests, pure tone thresholds in the right ear, in decibels, were 5, 25, 10, 10, and 25; 5, 30, 10, 15, and 35; and 5, 30, 10, 10, and 25 at 500, 1000, 2000, 3000, and 4000 Hertz, respectively.  Pure tone thresholds in the left ear, in decibels, were 5, 25, 15, 10, and 25; 5, 25, 10, 5, and 30; and 5, 25, 15, 10, and 30 at 500, 1000, 2000, 3000, and 4000 Hertz, respectively.  It was noted that the Veteran was routinely noise-exposed and had undergone a permanent standard threshold shift, and the Veteran signed a statement indicating that he was aware of a change in his hearing.  It was further recorded that the Veteran had failed his hearing screen.

A September 2008 Army Health Center treatment record reflects that the Veteran had a very nasty history of flight deck noise exposure and now had increased hearing loss, that previous audiograms had shown deterioration, and that a current audiogram showed a very nasty noise-induced bilateral high frequency hearing loss.  An October 2008 Army Health Center treatment record reflects that the Veteran complained of decreased hearing over the last year or two and reported working as an aviation mechanic for 16 years on active duty.  The diagnosis was bilateral high frequency sensorineural hearing loss, which appeared to be consistent with a noise-induced pattern, "for which the greatly most likely cause" was 21 years of service on the flight line, and it was noted that no other good explanation existed.  

The report of an April 2013 VA audiology examination reflects that, on audiological testing, pure tone thresholds in the right ear, in decibels, were 10, 30, 65, 95, and 110 at 500, 1000, 2000, 3000, and 4000 Hertz, respectively; pure tone thresholds in the left ear, in decibels, were 10, 30, 90, 110, and 110 at 500, 1000, 2000, 3000, and 4000 Hertz, respectively.  Speech discrimination scores using the Maryland CNC list were noted to be 48 percent in the right ear and 40 percent in the left ear.  The diagnosis was sensorineural hearing loss of both ears.  

The VA examiner opined that the Veteran's current hearing loss was likely not related to his period of service, as the October 2003 in-service evaluation indicated a mild loss, while audiological tests in 2008 indicated a very significant bilateral asymmetrical hearing loss that was not present when the Veteran's left service.  The examiner explained that the current evaluation indicated further progression of the Veteran's hearing loss, even though he was no longer exposed to noise, with his word recognition continuing to deteriorate from 2008 to 2013, suggesting an etiology other than noise exposure. 

Considering the pertinent evidence in light of the governing legal authority, the Board finds that the Veteran's service-connection claim must be granted. 

As reflected in testing results on April 2013 audiological examination, the Veteran clearly has a hearing loss disability for VA purposes.  The Board notes the opinion of the April 2013 VA examiner that, given the Veteran's very significant bilateral asymmetrical hearing loss, compared to his mild hearing loss noted in service, and the fact that his hearing loss continued to deteriorate between 2008 and 2013, the Veteran's current hearing loss was unlikely to be related to in-service noise exposure.  However, the Veteran had documented noise exposure and decrease in hearing acuity during his period of service from December 1983 to September 2004 to the point that he failed his hearing screen in October 2003 and it was acknowledged that he had undergone a permanent standard threshold shift.  Also, the September and October 2008 Army Health Center treatment records reflect assessments of noise-induced hearing loss, and the opinions that the most likely cause by far was 21 years of service on the flight line and no other good explanation existed.  Considering this, the Board finds that the evidence as a whole regarding whether the Veteran's current hearing loss disability is related to service is at least in relative equipoise, at least.

Resolving reasonable doubt in the Veteran's favor, the Board finds that his current hearing loss is directly related to service.  Accordingly, service connection for bilateral hearing loss must be granted.  See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56.

Increased Rating

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  See 38 C.F.R. § 4.3.

A disability rating may require re-evaluation in accordance with changes in a veteran's condition.  Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment.  See 38 C.F.R. § 4.1.  See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Nevertheless, where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart, 21 Vet. App. 505.

The Veteran's intervertebral disc syndrome and DDD is currently rated under Diagnostic Code (DC) 5243, and is thus rated under the criteria for intervertebral disc syndrome.  His disability is therefore rated according to either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  See 38 C.F.R. § 4.71a, DC 5243.

Under the General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes), effective from September 26, 2003, the following evaluations are assignable with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: 

* 10 percent for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height; 
* 20 percent for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; 
* 40 percent for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; 
* 50 percent for unfavorable ankylosis of the entire thoracolumbar spine; and 
* 100 percent for unfavorable ankylosis of the entire spine.  

Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code.  38 C.F.R. § 4.71a.

Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  Plate V, 38 C.F.R. § 4.71a.

For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis.  See C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 5.

An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest and treatment prescribed by a physician.  The following evaluations are assignable for intervertebral disc syndrome based on incapacitating episodes: 10 percent where incapacitating episodes have a total duration of at least one week but less than 2 weeks during the past 12 months; 20 percent where incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months; 40 percent where incapacitating episodes have a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and 60 percent where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a, DC 5243.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  See 38 C.F.R. §§ 4.40, 4.45, and 4.59 (2012).  See also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

The Veteran was afforded an examination of his spine disability in June 2008 by a physician.  At that time, the Veteran reported having constant, crushing, aching and sharp pain and stiffness in his mid lower back with no bowel, bladder, or erectile problems, and exacerbations once or twice a day lasting two to five hours.  He denied weakness of the low back and lower extremities.  Pain was precipitated by physical activity, prolonged driving, and prolonged periods of sitting.  He stated that he could function with medication and did not claim that any physician had defined him as being incapacitated over the past 12 months due to any low back pain.  He stated that the functional impairment that had resulted from his low back condition was the prompt exacerbation of low back pain if he was required to perform repetitive movements, and the worsening of his pain if required to make lateral movements for extended periods of time.  

On examination, posture and gait were normal, there was tenderness noted at the area of L4-L5-S1, and there was no radiation of pain on movement or muscle spasm.  Straight leg raising test was negative on the right and left, and the lumbosacral spine did not manifest any evidence of ankylosis.  On range of motion testing, flexion was to 85 degrees with pain elicited at 80 degrees, extension and right lateral flexion were to 30 degrees with pain elicited at 30 degrees, left lateral flexion was to 30 degrees with no pain, right rotation was to 20 degrees with pain elicited at 20 degrees, and left rotation was to 20 degrees with no pain.  Range of motion of the lumbosacral spine was additionally limited by pain after repetitive use, but not by fatigue, weakness, lack of endurance or incoordination after repetitive use, and it did not manifest any additional limitation in degrees above the range of motion noted.  Position of the head was normal, the spine was symmetrical in appearance and motion with no curvatures, and there was no evidence of intervertebral disc syndrome with nerve root involvement.  There was no evidence of sensory deficits or motor weakness of the lumbosacral dermatomes.  Neurological examination, motor function, and sensory function were normal.  It was noted that the Veteran made no statement as to his usual occupation and daily activities.  

A private treatment record dated September 25, 2008, reflects that the Veteran was present for a new patient evaluation and complained of back and buttock pain.  He reported sharp on and off pain and denied numbness, tingling, weakness, or bowel or bladder problems.  He reported associated stiffness and that the pain was mechanical, primarily with bending, twisting, turning, and side bending.  On physical examination, there was tenderness over the lumbosacral junction that increased with flexion, extension, side bending, and rotation.  He was neurologically intact in the lower extremities with full strength and sensation intact and equal.  The Veteran had full range of motion of the lumbar spine with flexion, extension, side bending, and rotation without reproduction of pain.  Straight leg raise was negative in the seated and supine position, paraspinal muscles were without spasm, and no tenderness was elicited over the sacroiliac joints.  The Veteran could stand, heel walk, and toe walk without evidence of weakness, instability, or abnormality of gait. 

An October 22, 2008, private physical therapy note reflects that the Veteran's current flexion was to 20 degrees, extension was to 20 degrees, right side bending was to 20 degrees, and left side bending was to 20 degrees, with range of motion limited by complaints of increased left-sided low back pain.  

A January 2009 private treatment record reflects that the Veteran was continuing physical therapy and was doing well overall with the exercises.  On physical examination, his range of motion included lumbar flexion to 30 degrees and extension and right and left side bending to 20 degrees.  He was neurologically intact in the lower extremities.  The assessment was severe DDD and facet joint atrophy at L5-S1 with grade 1 retrolisthesis.  

In statements submitted in June 2009, the Veteran asserted that he had constant pain in his lower back with flare-ups that left him bed ridden several times a month.  He also asserted that his back problems had became more severe, and that at least four times a month his back was totally incapacitated and he was unable to do anything.  

The Veteran submitted statements dated in June 2009 from his service comrades C.K., and R.N., which indicate that each witnessed the Veteran's back pain first hand, that at times he was unable to move or perform even small tasks due to his back pain, that his back acted up at least four times a year, and that he had difficulty getting out of a chair and could probably not lift more than 20 pounds.  The Veteran also submitted a statement from his wife, also dated in June 2009, indicating that the Veteran had severe back issues and could not perform even minimal tasks such as weeding the yard, vacuuming the carpet, washing dishes, or peeling shrimp, and that the repetitive motion and stress on his back caused unbearable pain for him.  She further stated that he would be out of commission for one to two days, which sometimes occurred as often as two to three times per month.  

The report of an April 2013 VA examination reflects that intervertebral disc syndrome and DDD of the lumbosacral spine, as well as left-sided sciatica, were diagnosed.  The Veteran reported current low back pain that was getting worse and often caused incapacitation.  He stated that the pain in his lower back often traveled into his left buttock and down to his left leg, that he had required multiple epidural steroid injections over the past 18 months, and that his orthopedic specialist had informed him that he likely would require steroid injections three to four times per year for an indefinite period time.  He reported that flare-ups interfered greatly with the function of his back, and that during flare-ups he was unable to stand, was limited in ability to sit, and had great difficulty tolerating physical activity.  He stated that the flare-ups could impact his physical activity for hours to days.  

Range of motion testing revealed flexion to 30 degrees with objective evidence of painful motion beginning at 20 degrees, extension to 25 degrees with objective evidence of painful motion at 15 degrees, right and left lateral flexion to 25 degrees with objective evidence of painful motion beginning at 25 degrees, and right and left lateral rotation to 20 degrees with painful motion at 15 degrees.  The Veteran was able to perform repetitive use testing with three repetitions, and after a minimum of three repetitions forward flexion ended at 30 degrees.  The Veteran had addional limitation of range of motion following repetitive use testing and additional functional impairment of the back including less movement, weakened movement, excess fatigability, and pain on movement.

There was localized tenderness to palpation of the thoracolumbar spine, which was described as moderate tenderness.  There was guarding or muscle spasm but not resulting in abnormal gait or spinal contour.  The right lower extremity had normal strength, and there was no muscle atrophy.  Sensory examination was normal, but straight leg raising test was positive on right and left.  The Veteran was noted to have had radiculopathy of the left lower extremity but not the right lower extremity, and it was noted that the right lower extremity was not affected by radiculopathy.  It was noted at the time that the Veteran had intervertebral disc syndrome with at least four weeks, but less than six weeks duration of incapacitating episodes over the past 12 months.  The Veteran used no devices for ambulation.

The examiner stated that the impact of the Veteran's spine condition on his ability to work was that his functional loss due to his back sometimes interfered with his ability to get his job done due to episodic physical incapacitation by his chronic low back condition.  The examiner stated that the Veteran's flare-ups and repetitive use of his spine caused significant limitations in functional ability, that it was not feasible to estimate additional range of motion loss due to flare-ups and repetitive use over time, and that functional loss attributed to the back included less movement than normal, weakened movement, excess fatigability, and pain on movement, all of which caused him episodes of incapacitation.  The examiner also noted that the Veteran's functional loss constantly limited his ability to perform normal working movement of his body with normal exertions, strength, speed, coordination, and endurance.  

Considering the pertinent evidence in light of the governing legal authority, the Board finds that a rating for intervertebral disc syndrome and L5-S1 DDD greater than 10 percent prior to October 22, 2008, and greater than 40 percent thereafter, must be denied. 

The record reflects that, during the period pertinent to his June 2008 claim for an increased rating and prior to October 22, 2008, the Veteran's spine disability was primarily manifested by pain and stiffness, primarily with bending, twisting, and other such motion, and aggravated by prolonged driving or sitting.

However, while the record reflects painful motion of the back, the most to which the Veteran's flexion was noted to have been limited during that period was to 85 degrees, with pain elicited at 80 degrees, and lumbosacral spine motion additionally limited by pain after repetitive use, but not manifesting any additional limitation in degrees above the range of motion noted.  At no point prior to October 22, 2008, was combined range of motion of the thoracolumbar spine noted to be limited to 120 degrees or less.  In fact, on September 25, 2008, private treatment, less than one month before October 22, 2008, it was noted that the Veteran had full range of motion of the lumbar spine with flexion, extension, side bending, and rotation without reproduction of pain.  

Even considering any additional functional loss due to pain, weakness, excess fatigability, incoordination, or other such factors, given the objective medical evidence, the Veteran's spine disability during this period more closely approximated forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, than forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees.  

Also, at no point prior to October 22, 2008, was there muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  On June 2008 examination, position of the head was normal, and the spine was symmetrical in appearance and motion with no curvatures, and in September 2008 the Veteran could stand, heel walk, and toe walk without evidence of weakness, instability, or abnormality of gait.  Furthermore, the record during this period reflects no periods of acute signs and symptoms due to intervertebral disc syndrome that required bed rest and treatment prescribed by a physician, and, on June 2008 examination, it was noted that the Veteran did not claim that any physician had defined him as being incapacitated over the past 12 months due to any low back pain.  

Therefore, in light of the above, prior to October 22, 2008, the Veteran's spine disability more closely approximated the criteria for a 10 percent rating than those for a greater rating under the applicable rating criteria.  

Beginning October 22, 2008, the record reflects that the Veteran's spine disability has been primarily manifested by constant pain with flare-ups during which he is reportedly unable to stand and has great difficulty sitting.  Such disability has caused a great deal of difficulty with lifting, performing household chores, and engaging in other physical activity, and limited his ability to perform normal working movement of his body with normal exertion, strength, speed, coordination, and endurance.  

However, while painful motion of the spine has been consistently noted during this period, with flexion limited to 20 or 30 degrees, no ankylosis of the entire thoracolumbar spine has ever been noted or asserted by the Veteran.  Furthermore, while there has been pain and impairment of function, even considering all of the Veteran's symptomatology, his disability has at no point approximated the severity level of the entire thoracolumbar spine being fixed in flexion or extension and resulting in difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching.  Thus, a rating greater than 40 percent under the General Rating Formula for Diseases and Injuries of the Spine has not been warranted at any time.

The Board has considered the provisions of DC 5243.  The Veteran asserted in June 2009 that his flare-ups left him bed ridden several times a month and that at least four times a month his back was totally incapacitated and he was unable to do anything, and his wife in June 2009 asserted that the Veteran would be out of commission for one to two days, which sometimes occurred as often as two to three times per month.  The Board notes, however, that no records of physician prescribed bedrest and treatment due to any period of acute signs and symptoms of intervertebral disc syndrome are contained in the claims file or have been identified by the Veteran.  However, based on the Veteran's own reports, the April 2013 VA examiner stated that the Veteran's spine symptoms caused episodes of incapacitation, and assessed the Veteran as having intervertebral disc syndrome with at least four weeks but less than six weeks duration of incapacitating episodes over the past 12 months.  Even assuming the validity of the Veteran's reports leading to this assessment, intervertebral disc syndrome with at least four weeks but less than six weeks duration of incapacitating episodes over the past 12 months are explicitly contemplated in the criteria for a 40 percent rating under DC 5243.  Thus, a rating greater than 40 percent under that code has not been warranted at any time.

The Board also notes the lay statements given, in general, regarding the severity of the Veteran's back condition by the Veteran, his wife, C.K., and R.N., all of whom are competent to report matters within their own personal knowledge.  See Layno, 6 Vet. App. at 469.  However, such statements given regarding the Veteran's symptomatology, including his pain, flare-ups, and functional limitations, are consistent with the criteria for no more than a 40 percent rating for his disability, which contemplates forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.  To the extent that any such lay statement purports to describe the Veteran's symptomatology prior to October 22, 2008, as more severe than that warranting a 10 percent rating, the Board finds such evidence to be outweighed by the more probative, objective medical evidence provided by the June 2008 examiner and the Veteran's September 25, 2008, private medical provider.

Regarding neurological manifestations of the Veteran's spine disability, while left leg sciatica has been diagnosed, the Veteran has been specifically noted not to have had radiculopathy of the right lower extremity.  Thus, a separate compensable rating for right leg radiculopathy is not warranted by the evidence.  Also, as discussed in the introduction above, in June 2013, the RO granted service connection for left leg sciatica and assigned a rating of 20 percent, which the Veteran has one year to appeal before such decision becomes final, and the Board is therefore not addressing such disability in this decision.

The Board has also considered the applicability of other diagnostic codes for rating the Veteran's disability, but finds that no other diagnostic code provides a basis for a higher rating.  The rating codes discussed above specifically pertain to the Veteran's spine disability.  The Veteran's disability has not been shown to involve any factors that warrant evaluation under any other provision of VA's rating schedule.  

Also, this case should not be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b).  

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, which involves a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  

The Board recognizes that the Veteran's disability has been productive of functional impairment.  The assigned ratings of 10 and 40 percent reflect that his disability has been productive of impairment in earning capacity.  However, the record does not reflect that the average industrial impairment from his disability would be in excess of that contemplated by either assigned rating during the pertinent period.

During the period pertinent to his June 2008 claim for an increased rating and prior to October 22, 2008, the Veteran's back disability was primarily manifested by pain and stiffness, primarily with bending, twisting, and other such motion, and aggravated by prolonged driving or sitting, with flexion limited to 85 degrees, pain elicited at 80 degrees, no additional limitation in degrees above the range of motion noted on repetition, minimal restriction of other range of motion, and no incapacitating episodes.  Such manifestations are reasonably contemplated by the schedular criteria for a 10 percent rating under the applicable rating criteria, which contemplate spine disability of the nature and severity of disability producing forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height.  The record does not reflect that the Veteran's spine disability caused impairment in earning capacity above what would be average for such disability during that period.  

Beginning October 22, 2008, the Veteran's spine disability has been primarily manifested by constant pain and limitation of motion to 30 degrees or less with flare-ups resulting in difficulty with lifting, performing household chores, and engaging in other physical activity, and limiting his ability to perform normal working movement of his body, but has not approximated unfavorable ankylosis of the entire thoracolumbar spine.  Also, the Veteran's disability has been productive, at the very most, of at least four weeks but less than six weeks duration of incapacitating episodes over a 12-month period.  Such manifestations are reasonably contemplated by the schedular criteria for a 40 percent rating under the applicable criteria, which contemplate spine disability of the nature and severity of disability producing flexion of the thoracolumbar spine limited to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, and incapacitating episodes of such frequency.  The record does not reflect that the Veteran's spine disability has caused impairment in earning capacity above what would be average for such disability.  

Also, while the April 2013 VA examiner stated that the impact of the Veteran's spine condition on his ability to work was that his functional loss due to his back sometimes interfered with his ability to get his job done due to episodic physical incapacitation by his chronic low back condition, neither this nor any other evidence of record reflects that the Veteran's disability has been productive of marked interference with employment, and there is no indication in the record of frequent hospitalizations related to such disability.

In this regard, it is important for the Veteran to understand that without taking into consideration all his statements the current 40 percent evaluation, along with other factors associated with the back that have not been appealed, could not be justified. The Veteran is currently receiving a 60 percent evaluation (20% plus 40%) for the back and the sciatic associated with the back, a highly significant back disability evaluation.  If he were not having problems associated with his back this evaluation could not be justified based on the objective medical evidence.

In sum, the Board has determined that there are no unusual or exceptional factors in this case warranting referral for extraschedular consideration.

Finally, while the April 2013 VA examiner stated that the impact of the Veteran's spine condition on his ability to work was that his functional loss due to his back sometimes interfered with his ability to get his job done due to episodic physical incapacitation by his chronic low back condition, there has been no assertion or evidence that the Veteran is unemployable due to his service-connected disability and a review of the record indicates no such problem.  Therefore, entitlement to a total disability rating based on individual unemployability is not raised by the record and will not be further addressed in this decision.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).

Accordingly, a rating for intervertebral disc syndrome and L5-S1 DDD greater than 10 percent prior to October 22, 2008, and greater than 40 percent thereafter, is not warranted, and there is no basis for any further staged rating of the Veteran's disability pursuant to Hart.  As the preponderance of the evidence is against assignment of any greater rating, the benefit-of-the doubt doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3 (2012); Gilbert, 1 Vet. App. at 53-56

Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  

Regarding the Veteran's claim to reopen and his service connection claim, the Board is granting in full the benefits sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist regarding those issues, such error was harmless and will not be further discussed.

Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  Section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).

In the present case, required notice was provided by letter dated in June 2008, which informed the Veteran of all the elements required by Pelegrini II and Dingess/Hartman.  

As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.   See Bernard v. Brown, 4 Vet. App. 384 (1993). 

The Veteran's service treatment records, VA medical treatment records, identified private treatment records, and written statements from the Veteran, his wife, and service comrades have been obtained.  Also, the Veteran was provided examinations by VA in June 2008 and April 2013.  These examinations and their associated reports were adequate because, along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claim.  The examination reports were based on examination of the Veteran by physicians with appropriate expertise.  38 C.F.R. § 3.159(c)(4) (2012); Barr, 21 Vet. App. 303.  

The Board notes that, in his September 2009 substantive appeal, the Veteran asserted that he disagreed with findings of the June 2008 physician, as the examiner was not a specialist.  However, the Veteran did not provide further details as to how the June 2008 examination was inadequate.  Also, as noted above, the Board finds that the June 2008 examiner, a physician, had appropriate expertise to evaluate the Veteran's spine disability.  Furthermore, as discussed above, a September 2008 record that the Veteran submitted from his own, private medical provider, dated less than a month before the October 22, 2008, effective date for a 40 percent rating for his spine disability, reflects almost exactly the same findings, in pertinent part, as those contained in the June 2008 examination report, if not less favorable findings to the Veteran's claim.  A "specialist" would not necessarily provide better information regarding whether a higher evaluation is warranted.  Thus, the Board finds the Veteran's assertions regarding the June 2008 examination to be unfounded, and that the examination and associated report are adequate.  

Therefore, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.


ORDER

New and material evidence having been submitted, the Veteran's claim for entitlement to service connection for hearing loss is reopened and, to that extent only, the appeal is granted.

Service connection for bilateral hearing loss is granted.

A rating for intervertebral disc syndrome and L5-S1 DDD greater than 10 percent prior to October 22, 2008, and greater than 40 percent thereafter, is denied.


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs