Citation Nr: 1328791	
Decision Date: 09/09/13    Archive Date: 09/17/13

DOCKET NO.  08-30 742	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss prior June 17, 2013.

2.  Entitlement to a disability rating in excess of 40 percent for bilateral hearing loss from June 17, 2013 to the present.

3.  Entitlement to a disability rating in excess of 20 percent for a low back disability prior to June 17, 2013.

4.  Entitlement to a disability rating in excess of 40 percent for a low back disability from June 17, 2013 to the present.

5.  Entitlement to a disability rating in excess of 20 percent for radiculopathy of the left lower extremity.

6.  Entitlement to a disability rating in excess of 20 percent for radiculopathy of the right lower extremity.

7.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

M. Moore, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1962 to September 1966 and February 1985 to August 1996.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which continued a 20 percent evaluation for residuals of a lumbar spine injury with degenerative joint disease and a 10 percent evaluation for hearing loss.

In June 2009, the Veteran presented sworn testimony during a video conference hearing in North Little Rock, Arkansas, which was chaired by the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the Veteran's claims file.

In an October 2009 decision, the Board denied entitlement to an increased rating for hearing loss.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In December 2010, the Court issued an order granting a December 2010 joint motion for remand (JMR).  The appeal was returned to the Board for action consistent with the December 2010 JMR and Court Order.

In a May 2011 decision, the Board denied entitlement to an increased rating for the Veteran's low back disability.  The Veteran appealed the Board's decision to the Court.  In June 2012, the Court issued a memorandum decision, vacating and remanding the issue to the Board.  The appeal was returned to the Board for action consistent with the June 2012 memorandum decision.

Subsequent to the December 2010 JMR and Court Order and June 2012 memorandum decision, the Board remanded both issues to the Appeals Management Center (AMC) for further development.

By a rating action dated in September 2012, the AMC increased the Veteran's evaluation for bilateral hearing loss to 40 percent effective February 16, 2012.  Additionally, in a July 2013 rating decision, the AMC increased the Veteran's evaluation for the Veteran's low back disability (recharacterized as intervertebral disc syndrome) to 40 percent effective June 17, 2013 and granted separate 20 percent evaluations for radiculopathy of the left lower extremity and radiculopathy of the right lower extremity, both effective June 17, 2013.  Because the AMC did not assign the maximum disability ratings possible or grant the separate evaluations for the entire appeals period, the appeals for higher evaluations for the entire period on appeal remain before the Board.  See AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal).  The issues on appeal have been recharacterized to reflect this change.  

As the Veteran is challenging the disability rating assigned for his low back disability, and the record raises assertions that he is unemployable because of this service-connected disability, the determination as to whether he is entitled to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is part and parcel of the determination of the increased rating claim.  Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).  While the Board has jurisdiction over this matter, the claim for TDIU is remanded to the RO for further development, as discussed more fully below.

The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC in Washington, DC.  VA will notify the Veteran if further action on his part is required.


FINDINGS OF FACT

1.  Prior to February 16, 2012, the Veteran's right ear hearing loss had a Numeric Designation of II as per Table VI of the VA schedule of ratings; the Veteran's left ear hearing loss had a Numeric Designation of II as per Table VI of the VA schedule of ratings.

2.  As of February 16, 2012, the Veteran's right ear hearing loss has a Numeric Designation of no more than VIII as per Tables VI and VIA of the VA schedule of ratings; the Veteran's left ear hearing loss has a Numeric Designation of no more than VII as per Tables VI and VIA of the VA schedule of ratings.

3.  Even when considering his complaints of pain, pain on motion, and functional impairment, the Veteran's service connected low back disability did not result in forward flexion limited to 30 degrees or less, ankylosis of the entire thoracolumbar spine, or incapacitating episodes of intervertebral disc syndrome for the period prior to June 17, 2013.


4.  Even when considering his complaints of pain, pain on motion, and functional impairment, the Veteran's service connected low back disability did not result in unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes of intervertebral disc syndrome for the period from June 17, 2013.

5.  As of June 17, 2013, the Veteran's service-connected radiculopathy of the left lower extremity is manifested by no more than moderate incomplete paralysis of the sciatic nerve, with no evidence of muscle atrophy or complete paralysis of the sciatic nerve.

6.  As of June 17, 2013, the Veteran's service-connected radiculopathy of the right lower extremity is manifested by no more than moderate incomplete paralysis of the sciatic nerve, with no evidence of muscle atrophy or complete paralysis of the sciatic nerve.


CONCLUSIONS OF LAW

1.  Prior to February 16, 2012, the criteria for a disability rating in excess of 10 percent for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1-4.16, 4.85, Diagnostic Code 6100 (2012).

2.  From February 16, 2012 to the present, the criteria for a disability rating in excess of 40 percent for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1-4.16, 4.85, Diagnostic Code 6100 (2012).

3.  Prior to June 17, 2013, the criteria for a disability rating in excess of 20 percent for a low back disability have not been met.  38 U.S.C.A. § 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.71a, Diagnostic Code 5243 (2012).

4.  From June 17, 2013 to the present, the criteria for a disability rating in excess of 40 percent for a low back disability have not been met.  38 U.S.C.A. § 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.71a, Diagnostic Code 5243 (2012).

5.  From June 17, 2013 to the present, the criteria for a disability rating in excess of 20 percent for radiculopathy of the left lower extremity have not been met.  38 U.S.C.A. § 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.124a, Diagnostic Code 8720 (2012).

6.  From June 17, 2013 to the present, the criteria for a disability rating in excess of 20 percent for radiculopathy of the right lower extremity have not been met.  38 U.S.C.A. § 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.124a, Diagnostic Code 8720 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, the Board 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 a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

I. Duties to Notify and Assist

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  None is found by the Board.  Indeed, VA's duty to notify has been more than satisfied.  The Veteran was notified via letter dated in July 2007 of the criteria for establishing an increased rating for his service-connected hearing loss and low back disabilities, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  He also was notified of how VA determines disability ratings and effective dates if service connection is awarded.  This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in July 2007.  Nothing more was required.

VA's duty to assist has also been satisfied.  The Veteran's service treatment records, VA treatment records, and VA examination reports are in the file.  No outstanding evidence has been identified that has not otherwise been obtained.

The RO provided the Veteran with VA examinations for his hearing loss and low back most recently in June 2013.  The examiners both obtained thorough histories, including reviewing the claims file and medical records, and provided detailed physical examinations, including performing the appropriate audiometric/range of motion testing.  The opinions provided consideration of hi lay complaints and history as well.  Thus, the Board finds that the June 2013 audiological and spine examinations are adequate for determining the disability rating for the Veteran's service-connected bilateral hearing loss and low back disability.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).  Additionally, the audiological examiner addressed the functional effects of the Veteran's hearing loss disability in compliance with Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).

There is no evidence indicating that there has been a material change in the severity of the Veteran's service-connected bilateral hearing loss or low back disability since he was last examined.  38 C.F.R. § 3.327(a) (2012).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted.  See VAOPGCPREC 11-95.  Thus, the Board finds that a new VA examination is not necessary for either disability at this time.

Some discussion of the Veteran's June 2009 personal hearing is also necessary.  The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2).  See Bryant v. Shinseki, 23 Vet. App. 488 (2010).  These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked.  They were met here.  The issues on appeal were identified.  Information was also elicited from the Veteran concerning his contentions regarding his hearing loss and low back symptoms.  Notably, the Veteran's testimony, in part, triggered the Board's decision to remand the matter to obtain an updated VA audiological examination.

Finally, as noted above, the Board remanded the Veteran's claims in March 2013 further evidentiary development, including obtaining a new VA examination or addendum opinion for his hearing loss disability and obtaining a new VA examination for his low back disability.  The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance.  See Stegall v. West, 11 Vet. App. 268 (1998).

A review of the record reflects that the AMC provided the Veteran with new VA audiological and spine examinations June 2013.  Accordingly, all remand instructions issued by the Board have been substantially complied with and these matters are once again before the Board.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II. Merits of the Claims

Disability evaluations 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.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012).  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3 (2012).

The Veteran's entire history is reviewed when making a disability determination.  See 38 C.F.R. § 4.1 (2012).  Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern.  See Francisco v.  Brown, 7 Vet. App. 55 (1994).  However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. § 4.14 (2012).  The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

A. Bilateral Hearing Loss 

The Veteran has been assigned a 10 percent evaluation under Diagnostic Code 6100 for his service-connected bilateral hearing loss prior to June 17, 2013 and a 40 percent evaluation from February 16, 2012 to the present.  He seeks higher evaluations for the entire appeals period.


The VA rating scheme for the evaluation of hearing loss provides ratings from noncompensable to 100 percent based on the results of controlled speech discrimination tests together with the results of puretone audiometry tests which average puretone thresholds at 1000, 2000, 3000 and 4000 Hertz.  38 C.F.R. § 4.85 (2012).  The evaluation of hearing impairment applies a formula which is essentially a mechanical application of the VA Schedule for Rating Disabilities to numeric designations after audiology evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

Using Table VI in 38 C.F.R. § 4.85, the puretone average and speech recognition score are combined to give each ear a numeric designation for use on Table VII to determine the correct disability level.  Alternatively, Table VIA uses only the puretone averages to give each ear a numeric designation.

The regulations have two provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that veterans experience.  See 64 Fed. Reg. 25203 (May 11, 1999).  38 C.F.R. § 4.86(a) provides that if puretone thresholds in the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are each 55 decibels or more, an evaluation can be based either on Table VI or Table VIA, whichever results in a higher evaluation.  This provision corrects the fact that with a 55-decibel threshold level (the level at which speech becomes essentially inaudible) the high level of amplification needed to attempt to conduct a speech discrimination test would be painful to most people, and speech discrimination tests may therefore not be possible or reliable.  See 64 Fed. Reg. 25209 (May 11, 1999).  Additionally, 38 C.F.R. § 4.86(b) provides that if the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, an evaluation can be based on either Table VI or Table VIA, whichever results in a higher numeric designation, and that designation will then be elevated to the next higher Roman numeral.  This provision compensates for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise, and a speech discrimination test conducted in a quiet room with amplification of sound does not always reflect the extent of impairment experienced in the ordinary environment.  

The August 2007 audiometric results do not meet these criteria for either ear under 38 C.F.R. § 4.86(a) or (b).  The puretone thresholds are not 55 decibels or greater for either ear at 1000 Hertz and are not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  The Veteran's bilateral hearing loss at the time of the August 2007 VA examination can only be evaluated under Table VI.  However, the audiometric results from the February 2012 and June 2013 VA examinations meet the criteria of 38 C.F.R. § 4.86(a).  These audiometric results may be considered under both Table VI and Table VIA.

The Board notes that the Veteran has argued that his hearing loss is more severe than is reflected by his 10 and 40 percent evaluations.  He has also submitted lay statements from his friends and wife attesting to his difficulty hearing and understanding conversations.  Although the Veteran is competent to testify as to his observations and lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology, in this case, the Veteran and his friends and wife are not competent to diagnose him with a particular level of hearing impairment.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also 38 C.F.R. § 3.159 (a)(1) (2012) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions).  Specifically, the Veteran and his friends and wife are clearly competent to describe what he experiences and they witness (diminished hearing and difficulty understanding conversation).  They are not, however, able to provide competent evidence as the audiometry or measured level of the Veteran's hearing loss to support a higher disability rating.

The Veteran was first afforded a VA audiological examination for his present claim in August 2007.  Puretone thresholds, in decibels, were as follows:


HERTZ

1000
2000
3000
4000
RIGHT
50
55
65
70
LEFT
45
55
65
75

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 96 percent in the left ear.  Puretone threshold averages were 60 decibels for both ears.  The examiner did not note any functional impairments.  According to 38 C.F.R. § 4.85, the right ear had a designation of II and the left ear had a designation of II, based on Table VI.  The point where II and II intersect on Table VII indicates a disability rating of 0 percent.  As noted above, these results may only be considered under Table VI.

He was next examined for his hearing loss disability in February 2012.  At that time, the puretone thresholds, in decibels, were as follows:


HERTZ

1000
2000
3000
4000
RIGHT
70
80
90
95
LEFT
60
80
90
100

Speech audiometry revealed speech recognition ability of 90 percent in the right ear and of 88 percent in the left ear.  Puretone threshold averages were 84 decibels for the right ear and 83 decibels for the left ear.  The Veteran complained of difficulty hearing and complained that he could not carry on a normal conversation due to his hearing loss.  According to 38 C.F.R. § 4.85, the right ear had a designation of IV and the left ear had a designation of IV, based on Table VI.  The point where IV and IV intersect on Table VII indicates a disability rating of 10 percent.  

As noted above, these results also meet the criteria for the application of Table VIA under 38 C.F.R. § 4.86(a).  The right ear had a designation of VIII and the left ear had a designation of VII, based on Table VIA.  The point where VIII and VII intersect on Table VII indicates a disability rating of 40 percent.  Table VIA, therefore, provides the higher evaluation.




The Veteran was most recently afforded a VA audiological examination in June 2013.  At that time, the puretone thresholds, in decibels, were as follows:


HERTZ

1000
2000
3000
4000
RIGHT
70
80
95
95
LEFT
60
80
90
100

Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 72 percent in the left ear.  Puretone threshold averages were 85 decibels for the right ear and 83 decibels for the left ear.  The Veteran complained that he had to concentrate when not wearing his hearing aids.  According to 38 C.F.R. § 4.85, the right ear had a designation of VII and the left ear had a designation of VII, based on Table VI.  The point where VII and VIII intersect on Table VII indicates a disability rating of 40 percent.  The results of the June 2013 exam also meet the criteria for the application of Table VIA under 38 C.F.R. § 4.86(a).  The right ear had a designation of VIII and the left ear had a designation of VII, based on Table VIA.  The point where VIII and VII intersect on Table VII indicates a disability rating of 40 percent.  Table VI and Table VIA provide the same evaluation.

In addition to the VA examination, the medical evidence includes VA treatment records pertaining to the Veteran's hearing loss disability.  These treatment records note the Veteran's complaints of difficult hearing and that he has been fitted for hearing aids, but do not include any additional audiometric results.  

As the Veteran's hearing loss has been tested with reliable results and the Veteran has not claimed that these results were in any way invalid or that his hearing loss has worsened since his June 2013 VA examination, the Board finds that the Veteran's bilateral hearing loss does not warrant ratings in excess of the 10 percent and 40 percent evaluations already assigned.  Additionally, the Board notes that there is no indication in the medical evidence of record that the Veteran's symptomatology warranted other than the 10 percent and 40 percent evaluations assigned during the appeals period.  The assignment of additional staged ratings is not warranted.  See Hart, supra.

In reaching the above-stated conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim of entitlement to evaluations in excess of 10 percent prior to February 16, 2012 and in excess of 40 percent from February 16, 2012 to the present, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).

B. Low Back Disability 

The Veteran has been assigned a 20 percent evaluation under Diagnostic Code 5293 (currently numbered as Diagnostic Code 5243) for his service-connected low back disability prior to June 17, 2013 and a 40 percent evaluation under Diagnostic Code 5243 from June 17, 2013 to the present.  He has also been assigned 20 percent evaluations under Diagnostic Code 8720 effective June 17, 2013 for his radiculopathy of the right and left lower extremities associated with his low back disability.  He seeks higher ratings for his low back disability and associated radiculopathies for the entire appeals period.

Intervertebral disc syndrome (preoperatively or postoperatively) is evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012).

Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2012).

For VA compensation purposes, normal forward flexion of the lumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees.  38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (2) (2012).  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  Id.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  Id.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  Id.

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent evaluation is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent evaluation is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent evaluation is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent evaluation is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012).

For purposes of evaluations under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  Id. at Note (1).

When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination.

The Veteran was first examined for his low back disability in conjunction with his instant claim in August 2007.  At that time, he complained of chronic low back pain with no radiculopathy or focal neurologic deficit.  He reported experiencing flare ups of pain with prolonged weight bearing and lifting activities that did not result in additional weakness or restricted range of motion, but did require him to stop the offending activity, apply heat, and take ibuprofen.  He indicated that he was functionally limited in light weightlifting and ambulatory activities.  He reported wearing a back brace daily, but denied using a cane or experiencing any incapacitating episodes in the preceding year.  

The examiner observed normal gait, normal alignment of the spinal processes, and spasm and tenderness on palpation.  He recorded range of motion measurements of 80 degrees of forward flexion with pain at 70 degrees, 10 degrees of posterior flexion with pain at 10 degrees, 20 degrees of lateral flexion with pain at 20 degrees bilaterally, and 45 degrees of rotary flexion with pain at 45 degrees bilaterally.  There was no additional weakness, fatigability, discoordination, limitation of motion, or functional impairment with three repeated tests.  The Veteran's motor strength, sensory examination, reflexes, and coordination were normal in the bilateral lower extremities.  X-rays showed spurring and degenerative changes of the lumbosacral spine.  The examiner diagnosed the Veteran with residuals of a lumbar spine injury with degenerative joint disease.

The Veteran was next examined for his low back disability in May 2010.  At that time, he complained of chronic low back pain that he rated as 8 out of 10 and described as localized in the lower back without radiation or focal neurologic deficit and daily stiffness.  He denied any bowel or bladder problems, persistent neurologic deficits, and spasms.  He did complain of subjective loss of range of motion and some loss of endurance during bending activities.  He reported flare ups that occur with prolonged sitting, standing, walking, bending, lifting, and while performing yard work and require him to cease the activity, rest, and take ibuprofen with relief within two hours.  He indicated that his forward flexion was limited to 45 degrees during these flare ups.  He also reported being limited to sitting for 30 minutes, standing for 15 minutes, walking for one block, lifting no more than 20 pounds, and no climbing or squatting.  He denied the use of a cane or incapacitating episodes within the preceding twelve months, but did report wearing a back brace daily.  

The examiner observed normal gait, normal alignment of the spinous process without kyphosis, and spasms and tenderness to palpation.  He recorded range of motion measurements of 50 degrees of forward flexion with pain at 10 degrees, 10 degrees of posterior flexion with pain at 10 degrees, 10 degrees of lateral flexion with pain at 10 degrees bilaterally, and 35 degrees of rotary flexion with pain at 25 degrees bilaterally.  There was no additional weakness, fatigability, discoordination, limitation of motion, or functional impairment with repetitive testing.  Motor strength, sensory examination, reflexes, and coordination were normal for the bilateral lower extremities.  X-rays showed degenerative changes and marked narrowing at L5-S1, consistent with degenerative disc disease.  The examiner diagnosed the Veteran with a lumbar spine injury with degenerative joint disease/degenerative disc disease.

The Veteran's low back disability was most recently evaluated at a June 2013 VA examination.  At that time, he complained of low back pain and stiffness that radiated down his posterior thighs.  He reported experiencing flare ups of stiffness and pain, resulting from sitting, standing, walking, and/or lifting and relieved within two days with rest and denied using any assistive devices, including a brace, wheelchair, cane, crutches, or walker.  The examiner observed guarding or muscle spasm resulting in abnormal spinal contour with no localized tenderness or pain to palpation.  He recorded range of motion measurements of 20 degrees of forward flexion with pain at 20 degrees, 20 degrees of extension with pain at 20 degrees, 5 degrees of right lateral flexion, 10 degrees of left lateral flexion with pain at 10 degrees, and 10 degrees of lateral rotation with pain at 10 degrees bilaterally.  After three repeated tests, the Veteran's range of motion was additionally limited to 15 degrees of forward flexion, 10 degrees of extension, 5 degrees of right lateral flexion, 10 degrees of left lateral flexion, and 10 degrees of lateral rotation bilaterally.  The examiner further noted that additional testing resulted in less movement than normal, excess fatigability, and pain and movement.  Muscle strength, reflexes, and sensory examination were normal with no muscle atrophy.  In addition to his low back pain, the Veteran complained of intermittent, moderate radicular pain in the bilateral lower extremities without any other signs or symptoms of radiculopathy.  

The examiner concluded that the Veteran had intervertebral disc syndrome without any incapacitating episodes in the preceding 12 months and no neurologic abnormalities or findings, other than his complaints of radicular pain.  X-rays showed arthritis and degenerative disc disease with no vertebral fracture.  The examiner diagnosed the Veteran with lumbar sprain, spondylosis, and degenerative disc disease and concluded that his low back disability limited his ability to work because he had practically no motion in his low back and could not bend or twist.  He further noted that, although the Veteran complained of pain, fatigue, weakness, fatigability, and/or incoordination during a flare up, the Veteran could not quantify how much additional limitation he experienced due to pain during a flare up.

In addition to the VA examination reports, the medical evidence of record includes VA treatment records for the low back which are consistent with the VA examination findings.  Notably, a July 2009 VA treatment record indicates that the Veteran's chronic low back pain was managed with a back brace.  An August 2009 VA treatment record noted that the Veteran received a new back brace at that time.

In addition to the medical evidence, the Veteran has submitted lay statements from his friends and his wife, as well as personal statements and hearing testimony.  This lay evidence corroborates the functional limitations noted by the VA examiners, including his chronic complaints of low back pain, limited ability to do chores, and difficulty bending, stooping, standing for long periods of time, and lifting heavy objects.

Prior to June 17, 2013, based on the medical and lay evidence of record, the Board finds that the Veteran does not meet the criteria for a disability rating in excess of 20 percent.  His forward flexion of the thoracolumbar spine is not limited to 30 degrees or less, nor is there any evidence of favorable or unfavorable ankylosis of any part of the spine.  Significantly, the Board notes that the Veteran himself reported that his forward flexion was only limited to 45 degrees during a flare up of pain, not the 30 degrees required for an increased rating of 40 percent.  There is also no medical evidence showing such a limitation prior to the June 2013 VA examination.  As such, a disability rating in excess of 20 percent based on limitation of motion or ankylosis under the General Rating Formula for Diseases and Injuries of the Spine cannot be assigned for the Veteran's low back disability prior to June 17, 2013.

From June 17, 2013 to the present, based on the medical and lay evidence of record, the Board finds that the Veteran does not meet the criteria for a disability rating in excess of 40 percent.  There is no evidence of unfavorable ankylosis of any part of or the entire spine to warrant an increased rating of 50 or 100 percent.  Notably, the June 2013 VA examiner noted that ankylosis was not present on examination.  As such, a disability rating in excess of 40 percent based on limitation of motion or ankylosis under the General Rating Formula for Diseases and Injuries of the Spine cannot be assigned for the Veteran's low back disability from June 17, 2013 to the present.

With respect to the possibility of assigning a higher disability rating according to 38 C.F.R. § 4.40 and 4.45 for the Veteran's low back disability, the Board has considered the Veteran's complaints of pain and limitation of motion, particularly during a flare up.  However, there is no evidence to support a finding of forward flexion limited to less than 30 degrees or ankylosis during a flare up or due to pain.  Although the Veteran complained of pain at 10 degrees of forward flexion during his May 2010 VA examination, there is no indication that this results in motion limited to 10 degrees.  As noted above, the Veteran himself indicated that his forward flexion was only limited to 45 degrees even during a flare up of pain.  The Board emphasizes that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  As such, the Board finds that additional compensation need not be assigned for the Veteran's low back disability under 38 C.F.R. §§ 4.40 or 4.45.  See also DeLuca, supra.

Turning to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the Board notes that there is no indication in the medical evidence of record that the Veteran has experienced any incapacitating episodes as defined in VA regulations.  Although the Veteran reported flare ups of pain to the VA examiners, he denied any incapacitating episodes to each of the examiners.  VA treatment records are negative for any notations of physician-prescribed bed rest to qualify as an incapacitating episode for rating purposes.  38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1) (2012).  Thus, an increased rating cannot be assigned under these criteria for any period during the appeals period.

The Board also notes that, according to Note (1), any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, must be evaluated separately under the appropriate diagnostic code.  There is no evidence of any bowel or bladder impairment or other neurologic abnormalities to warrant separate evaluations, other than the radiculopathies for which the Veteran has received separate evaluations.  

With regard to the Veteran's separately compensated radiculopathy of the left and right lower extremities, separate 20 percent ratings are assigned for each extremity.  Under Diagnostic Code 8720, a 20 percent evaluation is assigned for neuralgia with moderate incomplete paralysis of the sciatic nerve.  A 40 percent evaluation is assigned for moderately severe incomplete paralysis of the sciatic nerve.  A 60 percent evaluation is assigned for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy.  Finally, an 80 percent evaluation is assigned for complete paralysis of the sciatic nerve with the foot dangling and dropping, no active movement of muscles below the knee possible, and flexion of the knee weakened or (very rarely) lost.  38 C.F.R. § 4.124a, Diagnostic Code 8720 (2012).

The Board finds that the medical and lay evidence does not support an increased rating or earlier effective date for the assignment of the separate 20 percent evaluations.  Prior to the currently assigned June 17, 2013 effective date, there is no evidence of any radiculopathy.  Notably, at his May 2010 VA examination, the Veteran denied radiation and focal neurologic deficit and his neurological examination was normal.  There is no medical evidence of any radiculopathy prior to the June 2013 VA examination.  

With regard to an evaluation in excess of 20 percent from June 17, 2013 to the present, the Board finds that the evidence does not support such an increase.  The June 2013 examiner specifically noted that the Veteran's sciatic nerve radiculopathy was intermittent and moderate.  There is no evidence of more serious symptoms to warrant a finding of moderately severe or severe incomplete paralysis or complete paralysis of the sciatic nerve, such as foot drop or muscle atrophy.  Notably, the only neurologic findings to support the current 20 percent evaluation are the Veteran's subjective reports of intermittent moderate pain.  Increased ratings for his radiculopathy of the left lower extremity and right lower extremity cannot be assigned at any point during the appeals period.

Additionally, the Board notes that there is no indication in the medical evidence of record that the Veteran's symptomatology warranted other than the currently assigned 20 and 40 percent disability ratings throughout the appeal period.  As such, assignment of additional staged ratings is not warranted.  See Hart, supra.

Accordingly, the Board finds that the claims of entitlement to a disability rating in excess of 20 percent prior to June 17, 2013 and in excess of 40 percent from June 17, 2013 to the present for a low back disability and disability ratings in excess of 20 percent for radiculopathy of the right lower extremity and radiculopathy of the left lower extremity must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claims of entitlement to increased ratings, that doctrine is not applicable.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Ortiz, supra.

C. Extraschedular Considerations

The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1) (2012); Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, as a threshold issue, the Board must determine whether the veteran's disability picture is contemplated by the rating schedule.  If so, the rating schedule is adequate and an extraschedular referral is not necessary.  If, however, the veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  These include marked interference with employment and frequent periods of hospitalization.  Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating.

With regard to the Veteran's bilateral hearing loss, the evidence of record does not identify any factors which may be considered to be exceptional or unusual.  There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria.  His audiological testing results fall squarely within Tables VI and VIA of the rating criteria for hearing loss.  The Board acknowledges that the examiner indicated that the Veteran had difficulty understanding speech and that this results in some functional impairment.  However, the Board notes that the rating criteria for hearing loss were last revised, effective June 10, 1999.  See 64 Fed. Reg. 25,200 (May 11, 1999).  In forming these revisions, VA sought the assistance of the Veterans Health Administration (VHA) in developing criteria that contemplated situations in which a veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids.  VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment.  Id.  The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA.  The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting.  See 59 Fed. Reg. 17,295 (April 12, 1994).  Notably, Table VIA was applied for the Veteran's February 2012 and June 2013 audiometric results, resulting in a higher evaluation than would have been assigned under Table VI for the February 2012 results.  Accordingly, the Board finds that any functional impairment due to hearing loss with regard to speech discrimination is a disability picture that is considered in the current schedular rating criteria.  

With regard to the Veteran's service-connected low back disability, the evidence of record does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the rating schedule.  There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria.  The rating criteria for the Veteran's currently assigned 20 and 40 percent disability ratings under Diagnostic Code 5243 contemplates his level of symptomatology.  Specifically, the criteria account for all limitation of motion and any symptoms related to his low back disability.  The Veteran's complaints of pain, limited range of motion due to pain, and functional limitation are also adequately contemplated by the rating schedule.  Notably, 38 C.F.R. §§ 4.40 and 4.45 adequately contemplate any functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of the joint.  Further, the Veteran's complaints of radicular pain associated with his low back disability have been adequately addressed under Diagnostic Code 8720 and separately compensated, as required by the rating criteria.  As the Veteran's disability picture is contemplated by the rating schedule, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary.

In short, the evidence does not support the proposition that the Veteran's service-connected hearing loss or low back disability with associated lower extremity radiculopathy presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012).  Thus, referral of these issues to the appropriate VA officials for consideration of extraschedular evaluations is not warranted.


ORDER

Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss, prior to February 16, 2012, is denied.

Entitlement to a disability rating in excess of 40 percent for bilateral hearing loss, from February 16, 2012 to the present, is denied.

Entitlement to a disability rating in excess of 20 percent for a low back disability, prior to June 17, 2013, is denied.

Entitlement to a disability rating in excess of 40 percent for a low back disability, from June 17, 2013 to the present, is denied.

Entitlement to a disability rating in excess of 20 percent for radiculopathy of the left lower extremity, from June 17, 2013 to the present, is denied.

Entitlement to a disability rating in excess of 20 percent for radiculopathy of the right lower extremity, from June 17, 2013 to the present, is denied.






REMAND

After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of his claim of entitlement to TDIU.

As noted above, in Rice v. Shinseki, the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record.  See Rice, supra.  The June 2013 VA examiner concluded that the Veteran's low back disability would affect his ability to work, as he had practically no motion in his lower back and was unable to bend or twist.  There is also evidence that the Veteran is not presently employed.  The issue of TDIU is raised by the record and it is properly before the Board.  A review of the record shows that further development is needed to properly adjudicate the TDIU claim.

The law provides that TDIU may be granted upon a showing that a veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disability or disabilities.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012).  Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19 (2012).

Despite the claim for TDIU raised by the June 2013 VA examination report, it does not appear that the Veteran has been afforded written notice of the information necessary to substantiate TDIU claim or the appropriate claim form.  In order for the Veteran's TDIU to be fully and fairly adjudicated it is necessary that he have the opportunity to provide the information necessary to substantiate the claim.





Accordingly, the case is REMANDED for the following actions:

1.  Provide the Veteran with the appropriate notice accompanied by the claims forms necessary to file and complete a TDIU claim.

2.  After completing the above actions and any other notification or development deemed necessary, such as a VA examination, the Veteran's claim of entitlement to TDIU should be adjudicated, including consideration of whether to submit the claim to the Under Secretary for Benefits or Director of Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 4.16(b).  If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative.  After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

No action is required of the Veteran until further notice.  However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim.  His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated.  The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim.  38 C.F.R. § 3.655 (2012).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012).



______________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs