Citation Nr: 1331128	
Decision Date: 09/26/13    Archive Date: 09/30/13

DOCKET NO.  04-42 119	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to a compensable disability rating for hearing loss from June 1, 2009 to September 15, 2010.

2.  Entitlement to a disability rating greater than 10 percent for hearing loss from September 16, 2010.

3.  Entitlement to a disability rating greater than 40 percent for residuals of low back strain prior to September 1, 2010.

4.  Entitlement to a disability rating greater than 20 percent for residuals of low back strain from September 1, 2010.

5.  Entitlement to a total disability rating based on individual unemployability (TDIU).




REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

M. J. In, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1960 to February 1963.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

The Veteran and his wife testified at a June 2009 Travel Board hearing by the undersigned Veterans Law Judge.  A transcript of that hearing is associated with the claims file.

This case was previously before the Board in September 2009, August 2010, May 2011, and February 2013 and was remanded for additional development.  For the reasons discussed below, the Board finds that there has been substantial compliance with its prior remands with respect to the issue decided herein.  See Stegall v. West, 11 Vet. App. 268 (1998).

The issues of entitlement to a compensable disability rating for hearing loss from June 1, 2009 to September 15, 2010; entitlement to a disability rating greater than 20 percent for residuals of low back strain from September 1, 2010; and entitlement to a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  From June 16, 2010, the Veteran's bilateral hearing loss has been manifested, at worst, by Level II hearing acuity in the right ear and Level V hearing acuity in the left ear.

2.  Prior to September 1, 2010, the Veteran's residuals of low back strain were manifested by painful motion, impaired ability to lift and walk, and limitation of motion, at worst, 20 degrees of forward flexion, 0 degrees of extension, 0 degrees of lateral flexion to the right, 10 degrees of lateral flexion to the left, 0 degrees of lateral rotation to the right, and 10 degrees of lateral rotation to the left; the combined range of motion of the thoracolumbar spine, at the least, was 75 degrees.  Unfavorable ankylosis of the entire thoracolumbar spine was not shown.


CONCLUSIONS OF LAW

1.  The criteria for a disability rating greater than 10 percent for hearing loss from September 16, 2010 have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012).

2.  The criteria for a disability rating greater than 40 percent for residuals of low back strain, prior to September 1, 2010, have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has met all statutory and regulatory notice and duty to assist provisions under the Veterans Claims Assistance Act of 2000 (VCAA).  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Proper notice from VA must inform the claimant of any information and 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.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

VA correspondence dated in March 2004 and March 2006 advised the Veteran of the necessary elements of the notice requirements.  See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  Specifically, the Veteran was informed of what evidence was required to substantiate the claims for an increased rating, of his and VA's respective duties for obtaining evidence, and of the criteria necessary for assignment of a disability rating.  The Veteran was provided with a March 2006 VCAA notice, which was followed by readjudication of the claims in subsequent supplemental statements of the case (SSOC).  See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA defect may be cured by issuance of a fully compliant notification followed by a re-adjudication of the claim); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, including the opportunity to present pertinent evidence.  Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007).  In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).

The duty to assist the Veteran has also been satisfied in this case.  The RO has obtained the Veteran's service treatment records, as well as his post service medical records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  Although the Veteran testified during his June 2009 Board hearing that he had filed for Social Security Administration (SSA) disability benefits, SSA subsequently notified the RO in January 2010 that, in fact, the Veteran had not filed for disability benefits and no records were available for review.  The Veteran subsequently reported to the RO that he had not filed for SSA disability benefits, contradicting his earlier testimony at the Board hearing.  The RO subsequently determined in a February 2010 formal finding that there were no SSA records available for review.

As will be discussed in the Remand section, the Board observes that there are outstanding records of the Veteran's hearing tests, conducted some time in 2009, in February 2010, April 2010 and June 2013 that are not associated with the claims file.  However, these missing records do not affect the Board's consideration of the proper disability rating for hearing loss for the period from September 16, 2010 because a June 2013 VA audiology clinic stated that the test results in June 2013 were inconsistent and unreliable, therefore it would serve no useful purpose.  Further, there is no indication in the record that hearing tests were done after April 2010.

The Veteran was provided with a VA spine/joints examination in March 2004, November 2004, July 2005, May 2006, January 2008, and December 2006.  Each VA examination report provided sufficient detail to ascertain the current severity of the Veteran's low back disability.  Additionally, in compliance with the Board's February 2013 remand, the Veteran was provided a June 2013 VA audiology examination wherein the examiner included sufficient detail as to the current severity of his service-connected hearing loss, as well as description of the functional impact of his service-connected hearing loss.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  Thus, the Board concludes that this examination is adequate for evaluation purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the Board hearing, the VLJ explained the issue on appeal and the evidence necessary to substantiate the Veteran's claim for an increased rating.  The Veteran was assisted at the hearing by an accredited representative from the Texas Veterans Commission.  The representative and the VLJ asked questions to ascertain the current state of the Veteran's service-connected disabilities, and the hearing focused on the elements necessary to substantiate the claims for an increased rating.  On remand, outstanding VA treatment records were obtained and VA examinations were conducted; otherwise, no pertinent evidence that might have been overlooked and that might substantiate the claims was identified by the Veteran or the representative that has yet to be obtained.  Thus, the submission of overlooked evidence was not only suggested, but obtained.  Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing.  Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012).  Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21 (2012).

Evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder.  However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability.  While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

VA has a duty to consider the possibility of assigning staged ratings in all claims for increase.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Hearing Loss

Service connection for defective hearing was granted in an October 1968 rating decision and a noncompensable disability rating was assigned under 38 C.F.R. § 4.85, Diagnostic Code 6100, effective from June 17, 1968.  

The Veteran filed his present claim for a compensable rating for defective hearing in January 2004.  The March 2004 rating decision denied his claim for a compensable disability rating for hearing loss.  In August 2005, the RO assigned a 30 percent rating for hearing loss effective July 6, 2005.  In October 2008, the RO proposed to reduce the disability assigned for service-connected hearing loss from 30 percent to a noncompensable rating.  In April 2009, the RO implemented the proposed reduction and assigned a noncompensable rating for hearing loss effective June 1, 1999.

In August 2010, the Board denied the Veteran's claims for a compensable disability rating prior to July 6, 2005 and to a disability rating greater than 30 percent between July 6, 2005 and June 1, 2009, for hearing loss.

In December 2010, the RO assigned a 10 percent rating for hearing loss effective September 16, 2010.  See AB v. Brown, 6 Vet. App. 35, 38 (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 issue of entitlement to a compensable disability rating for hearing loss from June 1, 2009 to September 15, 2010 is remanded to the RO.  As such, the issue decided herein concerns the proper disability rating effective September 16, 2010, for hearing loss.

The severity of a hearing loss disability is determined by comparisons of audiometric test results with specific criteria set forth at 38 C.F.R. § 4.85.  Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (cycles per second).  The Rating Schedule allows for such audiometric test results to be translated into a numeric designation ranging from Level I to Level XI in order to evaluate the degree of disability from bilateral service-connected defective hearing.  An examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  Examinations must be conducted without the use of hearing aids.  38 C.F.R. § 4.85.

At the June 2009 hearing before the Board, the Veteran testified that he could not hear speech.  He had learned to read lips.  He could not hear the television and had to put on subtitle to understand.  He first started using hearing aids in 2005.

The Veteran was provided a VA audiology examination in September 2010.  On audiological evaluation, pure tone thresholds, in decibels, were as follows:






HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
35
55
75
LEFT
20
35
90
105+
105+

Word recognition scores, using Maryland CNC word list, were 88 percent in the right ear and 80 percent in the left ear.  As to the disability's impact on employability, the VA examiner stated that "a disability such as hearing loss does not render an individual unemployable.  Gainful employment should be possible with statement of the art amplification, assistive technology, and/or vocational rehabilitation, particularly within the confines of the Americans with Disabilities Act."  In a November 2010 addendum, the examiner indicated that the Veteran's claims file was reviewed.

The Veteran was provided another VA audiology examination in March 2013, but it was noted that the test results were not valid for rating purposes.  The Veteran reported not feeling well during the test and that he had been weak for the previous three weeks.  However, the examiner found that the Veteran's hearing loss impacted ordinary conditions of daily life, including ability to work.  Specifically, the examiner described that the Veteran reported that he had to ask his wife to repeat and could not hear well in noise.

Most recently, the Veteran underwent a VA audiology examination in June 2013.  The examiner indicated that the Veteran's claims file was reviewed.  On audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
25
55
75
95
LEFT
30
50
95
105+
105+

Word recognition scores, using Maryland CNC word list, were 92 percent in the right ear and 80 percent in the left ear.  The diagnosis was sensorineural hearing loss, bilaterally.  Regarding the functional impact of hearing loss, the examiner found that the Veteran's hearing loss impacted ordinary conditions of daily life, including ability to work.  Specifically, it was noted that "[the] Veteran reports that he can't understand what someone is saying, has to turn the TV volume up twice as loud as someone with better hearing would have to, and he always has to say "huh? what'd they say?""  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).

Applying the rating criteria to the clinical findings from each of these evaluations results in Level II hearing acuity for the right ear and Level V hearing acuity for the left ear, for both September 2010 and June 2013 evaluations.  See 38 C.F.R. § 4.85, Table VI.  Applying either of these numeral designations to Table VII, with a numerical designation of Level II for the right ear and Level V for the left ear, results in a 10 percent disability rating for hearing loss.  38 C.F.R. §§ 3.383, 4.85(f), (h) (2012).  Thus, a disability rating greater than 10 percent is not supported by the evidence of record.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

When the pure tone decibel loss values are 55 or greater at 1000 Hertz, 2000 Hertz, 3000 Hertz, and 4000 Hertz in either ear, or 30 or less at 1000 Hertz and 70 or more at 2000 Hertz, the criteria for exceptional patterns of hearing impairment must be considered.  38 C.F.R. § 4.86(a) (2012).  However, none of the examination results dated from September 16, 2010 reflect an exceptional pattern of hearing impairment in either ear; as such, the criteria in 38 C.F.R. § 4.86(a) does not apply.

Low Back Disability

The Veteran's residuals of low back strain are currently rated under Diagnostic Code 5242.  Diagnostic Code 5237 directs that lumbosacral strain be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula).  Under the General Rating Formula, a 10 percent evaluation is assigned when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; 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.  38 C.F.R. § 4.71a, General Rating Formula.  A 20 percent evaluation is for application when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a 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.  Id.  A 40 percent rating for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.  Id.  A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine.  Id.

When evaluating loss in range of motion, consideration is given to the degree of functional loss caused by pain.  DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain).  In DeLuca, the Court explained that, when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be "'portray[ed]' (38 C.F.R. § 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups."  Id., at 206.  Under 38 C.F.R. § 4.40, disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and functional loss with respect to all these elements.  Factors involved in evaluating and rating disabilities of the joints include: weakness, fatigability, lack of coordination, restricted or excess movement of the joint, or pain on movement.  38 C.F.R. § 4.45.

The Veteran underwent a VA spine examination in March 2004.  The claims file was available for review.  He reported experiencing low back pain sometimes for three to four days a week, sometimes lasting two to three weeks; the pain did not radiate to his legs.  He did not use assistive device, a cane or a brace.  He stated that he retired in 1977 because his back would hurt with heavy work.  He did not have additional limitations from repetitive use and did not have additional limitations during flare-ups.  On physical examination, his gait was normal and he had loss of lumbar lordosis.  There was no tenderness on palpation of the paraspinal lumbar musculature.  The range of motion included flexion to 45 degrees; extension to 50 degrees; lateral flexion to 50 degrees to the right; lateral flexion to 75 degrees to the left; and lateral rotation to 45 degrees, bilaterally.  No pain was shown while performing the range of motion.  He could stand on his heels and toes and walk.  The impression was lumbosacral strain.  There was no evidence of additional limitations from pain, fatigue or weakness, and no totally incapacitating episodes of pain in the previous 12 months.  X-ray of the lumbar spine revealed moderate-to-marked narrowing of the disc space at L5-S1 level with spondylolisthesis of L5 over S1 of first degree.  Generalized osteoporosis was shown but the examiner noted that bone abnormalities seen on X-ray were less likely than not the result of the lumbar strain suffered in the military.  

At a November 2004 VA examination, the claims file was reviewed by the examiner.  The Veteran reported sharp low back pain located at L3, L4 and L5 averaging at 7 on a scale of 1 to 10.  He stated that when he moved the wrong way his pain went up to 10 on a scale of 1 to 10.  He did not take pain medications or use assistive device.  His low back pain interfered with daily activities especially when he moved or lift wrong.  He had three to four incapacitating episodes in the previous year.  He denied bladder or bowel incontinence.  Occasionally, his pain radiated to the buttocks, legs, posterior thighs, to his left foot.  On physical examination, his lumbar spine had normal curvature and there was no tenderness on palpation.  The range of motion included flexion to 80 degrees, with pain in the last 10 degrees; extension to 25 degrees, with pain in the last 5 degrees; lateral flexion to 30 degrees, bilaterally, without pain; and lateral rotation to 45 degrees, bilaterally, without pain.  Active motion did not produce weakness, fatigue, and incoordination.  There was no muscle atrophy; and normal muscle tone and motor skills were shown.  The diagnosis was moderate-to-marked narrowing of the disc space at L5-S, with spondylolisthesis of L5/S1 of first degree.

The Veteran was afforded another VA spine examination in July 2005.  The VA examiner indicated that the claims file was reviewed.  The Veteran reported low back pain approximately every other day at a level of 5 on a scale of 1 to 10.  He used no cane, brace or other assistive device.  He was continent of bowel and bladder.  He had no incapacitating episodes in the previous year.  He had no increased limitations with flare-ups or repetitive motion.  There was no incoordination or evidence of excess fatigability.  He related that he worked most of his life as a printer and he retired in 1990 because of his back; he could not lift the heavy materials.  He further stated that in the next 5 years he did odd jobs but at the current time, he was not working.  He stated that he could not obtain work with a history of a back disease.  On physical examination, the Veteran walked with normal gait.  He had straightening of the lordosis.  He had mild tenderness in the L3-4 area, bilaterally, without spasm on palpation.  The range of motion included flexion to 25 degrees and extension to 20 degrees, with pain.  He had 30 degrees of lateral flexion and rotation, bilaterally, with mild pain.  He could stand on his heels and toes to walk.  X-ray of the lumbar spine, conducted in March 2005, revealed severe narrowing of the L5-S1 disc space and posterior narrowing of the L4-5 disc space; there was degenerative change at the L5-S1 level.  The diagnosis was lumbosacral degenerative disc disease at L5-S1 and L4-5.  In an addendum, the examiner noted that the Veteran was able to drive and take care of his activities of daily living, such as bathing, feeding, and tasks around the house.

On April 2006 pain management consultation, the Veteran reported back pain increased significantly over the last ten years, in terms of frequency as well as intensity.  He described nagging, aching low back pain which radiated into the left hip with walking more than 50 yards and improved with rest.  As to occupational history, the Veteran related that he had not worked since 1979 secondary to his low back pain.  He was independent in all activities of daily living but stated that his walking was limited due to his back pain.  On physical examination, the range of motion included flexion to approximately 20 degrees, extension to 0 degrees; the Veteran was not willing to try as he anticipated pain.  Axial loading reproduced pain primarily on the left side, and the Veteran had left paraspinal tenderness from L3-S1 and mild right-sided tenderness of the same.  The diagnosis was chronic low back pain and bilateral lower extremity pain secondary to degenerative disc disease and clinical facet degenerative joint disease.  

The Veteran was afforded another VA spine examination in May 2006.  The VA examiner indicated that the claims file was reviewed.  The Veteran reported that he did reasonably well with his low back pain until about two weeks previously, when his back pain became more severe and he had continued with daily back pain since that time.  The pain now radiated into both his legs down to the knees.  He had no incapacitating episodes in the previous year.  He was continent.  He used no brace or assistive device.  He had no increased limitations or flare-ups episodes in the previous year.  There was no incoordination, excess fatigability, change in endurance, or pain.  He had an epidural steroid injection about a week ago with limited relief.  He stated that he essentially had not worked since 1977 because of his back.  He was able to drive.  The back condition interfered with daily activities, such as stooping, bending, increased walking or sitting, working if sitting too long and lifting.  On physical examination, the Veteran walked with normal gait.  He had mild tenderness on palpation of the lumbar spine.  The range of motion included flexion to 40 degrees, extension to 15 degrees, bilateral lateral flexion and rotation to 20 degrees, with pain.  There was no change in range of motion, endurance, incoordination, fatigability or pain with repetitive motion.  Magnetic resonance imaging (MRI) of the lumbar spine, conducted in March 2006, revealed spondylolysis at L5-S1 and disk desiccation at L4-5/L5-S1.  There were degenerative changes at L5-S1.  The diagnosis was lumbosacral degenerative disc disease at L4-5/ L5-S1.

In a June 2006 letter, a private physician stated that the Veteran had degenerative disc disease at L4-L5 and L5-S1, which was associated with chronic back pain and was progressing in severity.

VA treatment records covering the period from October 2006 to July 2008 reflect the Veteran's continuing complaints of and treatments for low back pain.  Back braces were ordered in December 2006.  In February 2006 and August 2007, the Veteran reported worsening low back pain.  In April 2007 and May 2008, he reported that his back pain was stable.

On October 2007 physical therapy consultation, the Veteran complained of constant pain that went up and down to the back side of his bilateral lower extremities.  Range of motion was trunk flexion to 45 degrees; extension to 7 degrees; side bending to 20 degrees, bilaterally; and rotation to 30 degrees, bilaterally.  There was tenderness on palpation of the bilateral piriformis muscle.  The assessment was low back pain and sciatica pain.

A December 2007 pain management history and physician note, the Veteran stated that the symptoms had progressively worsened over the years but he was very stable and comfortable managing the pain based on conservative measures.  He described his back pain as constant deep ache with periodic exacerbation.  He reported the acute exacerbation lasted from 5 to 60 minutes.  Almost all activities of daily livings aggravated his back pain.  Relieving factor included occasional use of pain medications and muscle relaxant.  The Veteran denied any bladder, bowel or sexual dysfunction associated with this condition.  He reported that he was retired and had been unemployed since 1977 and his last job was a printer.  Examination of his back showed full flexion, extension, and rotation; however, there was mild to moderate paraspinal tenderness over the bilateral sacroiliac joints.  MRI of the lumbar spine, obtained in October 2007, showed spondylolysis of L5 with mild degree of spondylolisthesis of the L5 over S1.  Chronic degenerative disc disease changes at L4-L5 and L5-S1 and with fatty end plate degeneration were seen at L5-S1.  No focal disc protrusions, spinal stenosis, or neural foraminal narrowing were shown.

At a January 2008 VA examination, the Veteran reported chronic low back pain primarily on the left side.  He used a lumbar brace for activities.  He was on self-imposed bed rest one or two days per year due to flare-ups of his back pain.  He was not on physician-prescribed bed rest.  He had increased limitations with repetitive use and could only walk about 100 yards or less.  Walking limitations were a combination of back pain and pain in the lower extremities.  It was noted that his two previous MRIs showed no evidence of spinal stenosis or nerve entrapment.  The Veteran last worked as a printer in 1977.  He stated that he quit the job because of worsening low back pain because the job required some lifting and frequent amount of standing and walking.  On physical examination, the Veteran's gait was slow with a short stride length.  He did not limp or use ambulatory aids.  There was tenderness on the left side over the paraspinous muscles in the areas of L4 to S1 and the left SI joints.  There was no tenderness on the right side.  The range of motion included flexion to 45 degrees, extension to 10 degrees, right lateral flexion to 0 degrees, left lateral flexion to 10 degrees, right lateral rotation to 0 degrees and left lateral rotation to 10 degrees, limited by pain in each direction.  Repetitive motion of the lumbar spine was performed and the Veteran complained of increased back pain after multiple cycles.  There was no loss of motion, weakness, fatigability or incoordination.  The diagnosis was chronic low back pain secondary to degenerative joint disease, spondylolysis and spondylolisthesis.  There was no evidence of nerve root entrapment or radiculopathy.  The VA examiner noted that the Veteran's hip, leg and foot problems were not related to the lumbar spine and there was no indication on examination of radiculopathy.  Relative to unemployability, the examiner stated that the Veteran was not able to return o his previous employment in the printing business due to his service-connected back pain.

In a December 2009 VA spine examination report, the VA examiner indicated that the claims file was reviewed.  The Veteran reported continuing to have pain in the back which was 10 on a scale of 1 to 10 in severity.  He occasionally limped on the knee and had been wearing a brace for the last two years.  Medications gave him some relief to sleep and the back pain was aggravated by standing ten minutes and walking two blocks.  He did not try to do any lifting.  His back condition was not associated with incontinence.  The range of motion included flexion to 60 degrees, extension to 25 degrees, bilateral lateral flexion to 25 degrees and bilateral lateral rotation to 25 degrees.  The impression was Grade I spondylolisthesis and spondylolysis L5 lumbar spine with back pain and radiation to the left knee.  The examiner found that there was moderate disability with progression.  MRI of the back, conducted in December 2008, revealed degenerative changes at L4-5 and L5-S1; there were spondylolysis with spondylolisthesis of L5/S1 and annular tear at L4/5.  There was no canal or foraminal compression.  The examiner noted that there was no additional decrease in range of motion with repetitive movement three times a day as it related to pain, weakness, excess fatigability or incoordination.  There was no additional decrease in range of motion with flare-ups as it was not reported by the Veteran.  Examination showed painful motion.  There was no weakness or tenderness.  There had been no incapacitation over the last year because of his back.  There was no excess fatigability or incoordination.  

After consideration of the pertinent evidence of record, the Board concludes that a rating in excess of 40 percent is not warranted prior to September 1, 2010, as there is no evidence of unfavorable ankylosis of the entire thoracolumbar spine.  Rather, the evidence clearly demonstrates that the Veteran has continued to retain motion in his lower back, albeit severely limited.  Findings obtained through the multiple VA examinations and VA treatments included, at worst, forward flexion of the thoracolumbar spine to 20 degrees, extension to 0 degrees, right lateral flexion to 0 degrees, left lateral flexion to 10 degrees, right lateral rotation to 0 degrees and left lateral rotation to 10 degrees.  In making these findings, the Board used the evidence most favorable to the Veteran, including the range of motion before pain was indicated on the November 2004 VA examination.  However, a rating greater than 40 percent is not warranted as there is no evidence of ankylosis of the thoracolumbar spine.  See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citations omitted) (defining ankylosis as "immobility and consolidation of a joint due to disease, injury, surgical procedure").  Rather, the evidence clearly demonstrates that the Veteran continued to retain motion his back.  As there was clearly motion, the medical evidence of record simply does not show unfavorable ankylosis of the entire thoracolumbar spine, required for the assignment of the next higher evaluation.  See 38 C.F.R. § 4.71a, General Rating Formula.

Additionally, the Board has considered whether there is any additional functional loss not contemplated in the current 40 percent evaluation.  See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); see also DeLuca, 8 Vet. App. at 206.  The Veteran has reported impaired ability to lift and walk, and there was objective evidence of painful motion.  During the January 2008 VA examination, the Veteran stated that he had increased limitations with repetitive use and could only walk 100 yards or less.  However, the VA examiner stated that the walking limitations were a combination of the Veteran's back pain and his nonservice-connected pain in the lower extremities.  At the January 2008 VA examination the Veteran complained of increased back pain after multiple cycles of range of motion but the no additional loss of motion, weakness, fatigability or incoordination was shown.  Furthermore, the VA examiners in March 2004, November 2004, July 2005, May 2006, and December 2009, specifically noted that the repetitive motion revealed no evidence of additional limitation due to pain, excess fatigability, weakness, incoordination or change in endurance.  Therefore, any additional functional loss due to pain is already contemplated in the current 40 percent rating and it does not more nearly approximately a finding of unfavorable ankylosis of the entire thoracolumbar spine.  Accordingly, a rating greater than 40 percent on this basis is not warranted.  38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206.

Consideration has been given to an increased rating for the Veteran's service-connected low back disability under other potentially applicable diagnostic codes.  See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1995).  However, the record does not reflect that the Veteran's service-connected low back disability is manifested by intervertebral disc syndrome that resulted in incapacitating episodes requiring bed rest prescribed by a physician and treatment prescribed by a physician during the period on appeal.  On the November 2004 VA examination, the Veteran reported 3 to 4 incapacitating episodes in the previous year.  At the June 2009 hearing before the Board, the Veteran also reported that he was incapacitated about 2 to 3 months a year.  However, he denied any incapacitating episodes in the previous year at the March 2004, July 2005, May 2006, and December 2009 VA examinations.  Further, although the Veteran stated during the January 2008 VA examination that he was on self-imposed bed rest for 1 or 2 days per year due to flare-ups of back pain, he stated he was not on physician-prescribed bed rest.  Indeed, the record does not show that the Veteran's low back disability required bed rest prescribed by a physician at any time during the period on appeal.  Consequently, a higher rating is not warranted under the Formula for Rating Intervertebral Disc Syndrome based on Incapacitating Episodes.  See 38 C.F.R. § 4.71a, General Rating Formula, Diagnostic Code 5247.

Other Considerations

Generally, evaluating a disability using either the corresponding or an analogous diagnostic codes contained in the Rating Schedule is sufficient.  See 38 C.F.R. §§ 4.20, 4.27 (2012).  However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability.  However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating.  38 C.F.R. § 3.321(b) (2012).

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, a task performed either by the RO or the Board.  Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the veteran's disability level and symptomatology, the Rating Schedule contemplates then the veteran's disability picture, the assigned schedular evaluation is, therefore, adequate, and no referral is required.

The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the current rating inadequate.  The Veteran's service-connected bilateral hearing loss is evaluated as an impairment of auditory acuity pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by his disability.  Id.  When applying the results of the relevant audiological examinations to the tables set forth in the regulations, the Veteran's service-connected hearing loss was assigned numeric designations of Level II for his right ear and Level V for his left ear on both the September 2010 and June 2013 VA audiology examinations.  The Veteran reported difficulty hearing speech, especially, in the presence of background noise.  He further endorsed needing to watch the television at volumes twice as loud as others.  When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented the current rating already assigned.  Ratings in excess of 10 percent are provided for certain manifestations of bilateral hearing loss, but the evidence demonstrated that those manifestations were not present for any distinct period during the rating period.  The criteria for a 10 percent rating reasonably describe the Veteran's hearing loss disability level and symptomatology.

The Veteran's residuals of low back strain is evaluated by the General Rating Formula, which account for the Veteran's decreased mobility and any additional limitation of motion due to pain.  He does not have symptoms associated with this disability that have been unaccounted for by the schedular rating assigned herein.  See 38 C.F.R. § 4.71a, General Rating Formula.  The Veteran's low back disability was manifested by limitation of motion, painful motion, and impaired ability to lift and walk.  When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented the current rating already assigned.  Ratings in excess of 40 percent are provided for certain manifestations of low back strain, but the evidence demonstrated that those manifestations were not present for any distinct period during the rating period.  The criteria for a 40 percent rating reasonably describe the Veteran's low back disability level and symptomatology.

Consequently, the Board finds that the available schedular ratings are adequate to rate the Veteran's bilateral hearing loss and residuals of low back strain.  See 38 C.F.R. §§ 4.71a, Diagnostic Code 5237, 4.85, Diagnostic Code 6100.  Based on this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization.  See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment).  As such, referral for extraschedular consideration is not warranted.  See VAOPGCPREC 6-96; 61 Fed. Reg. 66749 (1996).

The Board finds that the evidence is against the assignment of greater ratings than those currently assigned for bilateral hearing loss and residuals of low back strain, at any time during the rating period on appeal.  As such, staged ratings are not for application.  See Hart v. Mansfield, 21 Vet. App. 505 (2008).

Finally, in reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against assigning increased disability ratings for the Veteran's service-connected bilateral hearing loss and residuals of low back strain, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to a disability rating greater than 10 percent for hearing loss from September 16, 2010 is denied.

Entitlement to a disability rating greater than 40 percent for residuals of low back strain, prior to September 1, 2010, is denied.


REMAND

A February 2010 VA audiology consultation report reflects that the Veteran was seen for hearing aid check.  It was noted that they attempted to complete hearing check, with inconsistent test results obtained and that speech reception thresholds obtained that day were consistent with those of 2 previous evaluations; volunteered pure-tone thresholds were not in agreement with his speech reception thresholds.  Although the claims file contains all updated VA treatment records up to June 2013, the audiometric findings of the February 2010 VA audiology are not included in the record.  Further, a June 2013 VA audiology clinic report indicates that the Veteran had previous hearing test sometime in 2009, but the test results is not included in the claims file.  Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  

Additionally, an April 2010 VA audiology note indicated that the Veteran reported that he had a hearing test from a civilian audiologist and reported the results of their testing.  When VA is put on notice prior to the issuance of a final decision of the possible existence of certain records that may reasonably help substantiate the Veteran's claim for benefits, the Board must seek to obtain those records before proceeding with the appeal.  Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992); Murphy v. Derwinski, 1 Vet. App. 78 (1990).

Thus, the case must be remanded for the RO to obtain and associate with the claims file all audiological evaluation results dated 2009 and 2010 referenced in the February 2010 and June 2013 VA audiology reports, as well as the hearing test results from the Veteran's civilian audiologist referenced in the April 2010 VA audiology note.

Additionally, the Veteran last underwent a VA medical examination in October 2010 to determine the severity of his service-connected low back disability.  However, the most recent VA treatment records dated January and May 2013 reflect that the Veteran is having increasing back pain.  The clinical findings presented in the October 2010 examination are now three years old.  In light of the Veteran's recent complaints of increasing pain, the Board deems it necessary to provide the Veteran with a new examination for an adequate evaluation of the current condition of the Veteran's residuals of low back strain.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination).

Furthermore, the Board requested in May 2011 and February 2013 that the RO/AMC should obtain an addendum to the VA spine examination conducted in September 2010, wherein the VA examiner indicates that the Veteran's claims file was reviewed and provides an opinion concerning the impact of the Veteran's service-connected disabilities on his employability.  On remand, the RO contact the VA Medical Center in Dallas, Texas, and requested that the VA examiner who conducted the Veteran's September 17, 2010 VA spine examination and provided the June 2011 addendum to this examination, to provide a clarifying opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran is unable to obtain or retain substantially gainful employment (more than marginal employment) due solely to his service-connected disabilities residuals of low back strain, bilateral hearing loss and/or tinnitus, consistent with his education and occupational experience, irrespective of age and any nonservice-connected disabilities.  In February 2013, the examiner provided the following opinion:

This Veteran does not work full time over 10 yrs.  He works part time washing dishes at a camp in Athens, Texas, averages 10 hrs per week. ... He can't sit or stand for long period.  He can walk 50 Ft. before back hurts more.  So, this Veteran is not completely unemployable.  It would be difficult for him to do manual work.  

The Board finds that this opinion is still inconclusive as to whether the Veteran is unable to obtain or retain substantially gainful employment (more than marginal employment) due solely to his service-connected disabilities residuals of low back strain, bilateral hearing loss and/or tinnitus, consistent with his education and occupational experience.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes.).  

Concerning this, it appears that the examiner's conclusion that the Veteran is not completely unemployable is based on the fact that he was working part time washing dishes at a camp in Athens, Texas, averages 10 hours per week.  However, at his June 2009 hearing before the Board, the Veteran testified that he was volunteering for this job with no monetary compensation.  The question at issue is whether the Veteran is unable to obtain or retain "substantially gainful employment," that is more than marginal employment, not whether he is "completely unemployable."  Furthermore, while the examiner noted that it would be difficult for the Veteran to do manual work, this opinion did not discuss what gainful sedentary employment would be possible, especially considering the Veteran's primary work experience.  Additionally, although the March and June 2013 VA audiology examinations reported that the Veteran's hearing loss impacted ordinary conditions of daily life, including ability to work, the February 2013 VA opinion does not consider any impact the Veteran's hearing loss disability might have on his employability.

When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination.  Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (noting that remand may be required if record before the Board contains insufficient medical information for evaluation purposes); Colvin v. Derwinski, 1 Vet. App. 171 (1991); see also Hatlestad v. Derwinski, 3 Vet. App. 213 (1992).  Consequently, the Board finds that another opinion with a clear rationale must be obtained before the Board can proceed with the merits of the claims.

Finally, the issue of entitlement to TDIU is inextricably intertwined with the issue of entitlement to an increased rating for the low back disability, because an increased rating for the low back would impact the adjudication of the TDIU claim.  See Harris v. Derwinski, 1 Vet. App. 180 (1991).

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the claims file all audiological evaluation results dated 2009 and 2010, as referenced in the February 2010 and June 2013 VA Dallas, Texas audiology clinic reports.  The RO should also obtain any updated records from the VA Medical Center (VAMC) in Dallas, Texas and Tyler, Texas dated from June 2013 to the present.  All records and/or responses received should be associated with the claims file.

2.  Ask the Veteran to identify the full name and address of all providers of medical treatment who evaluated the Veteran's hearing loss in 2009 and 2010.  Once the requested information and authorization has been obtained, attempt to obtain all such identified records for inclusion in the Veteran's claims file.  All attempts to obtain those records should be documented in the claims file.  If the VA is unsuccessful in obtaining any identified records, the Veteran and his representative should be so notified.  Two attempts must be made to obtain any private medical records identified, unless the first attempt reveals that a second attempt would be futile.  If records are identified, but not obtained, the RO should (1) inform the Veteran of the nature of the records; (2) describe the efforts made to obtain them, and (3) inform the Veteran that the claim will be adjudicated based on the evidence available but that if the records are later submitted or obtained, the claim may be re-adjudicated.

3.  Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected residuals of low back strain.  The claims file and a copy of this remand must be made available to and be reviewed by the examiner in conjunction with the examination.  All pertinent symptomatology and findings must be reported in detail.  Any indicated special diagnostic tests that are deemed necessary for an accurate assessment must be conducted.  Any further studies deemed relevant by the examiner must also be conducted.  The examiner must record all pertinent medical complaints, symptoms, and clinical findings, in detail.  

The examiner must state whether there is any evidence of favorable or unfavorable ankylosis of the spine, and determine the active range of motion of the Veteran's lumbar spine, in degrees, by use of a goniometer noting by comparison the normal range of motion of the lumbar spine.  If pain on motion of the lumbar spine is shown, the examiner must state at what degree the pain begins.  The examiner must also state whether there is weakened movement, excess fatigability, or incoordination attributable to the service-connected low back disability, expressed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination.  Additionally, an opinion must be stated as to whether any pain found in the lumbar spine could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups.

The examiner is also requested to determine the effects of the Veteran's residuals of low back strain, bilateral hearing loss and/or tinnitus on his ability to obtain and maintain employment.  The claims file and a copy of this remand must be made available to the examiner.

Based on a thorough review of the claims file, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran is unable to obtain or retain substantially gainful employment (more than marginal employment) due solely to his service-connected disabilities including residuals of low back strain, bilateral hearing loss and/or tinnitus, consistent with his education and occupational experience, irrespective of age and any nonservice-connected disabilities.  In this regard, the examiner must elicit from the record for clinical purposes, a full work and educational history.

A complete rationale must be provided for any opinion offered, and with respect to unemployability, the examiner is requested to explain specifically what factors led to the conclusion offered.

4.  Notify the Veteran that he must report for any scheduled examination and cooperate in the development of the claims.  Failure to report for a VA examination without good cause may result in denial of the claims.  38 C.F.R. §§ 3.158, 3.655 (2012).

5.  After completing the above, readjudicate the claims.  If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond.

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

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




______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs