Citation Nr: 1334247	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO.  10-44 084	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina

THE ISSUES

1.  Entitlement to an initial rating higher than 10 percent for degenerative joint disease of the thoracolumbar spine. 

2.  Entitlement to an initial rating higher than 10 percent for degenerative joint disease of the cervical spine prior to August 12, 2009.

3.  Entitlement to an initial rating higher than 10 percent for degenerative joint disease of the cervical spine from August 12, 2009, to March 19, 2010.

4.  Entitlement to an initial rating higher than 10 percent for degenerative joint disease of the cervical spine from March 19, 2010.

5.  Entitlement to an initial compensable rating for a scar on the left foot.

6.  Entitlement to service connection for bilateral hearing loss.

7.  Entitlement to service connection for bilateral foot disability.

8.  Entitlement to service connection for a right knee disability.

9.  Entitlement to service connection for a left knee disability.

10.  Entitlement to service connection for left ankle strain.

11.  Entitlement to service connection for sinusitis.

REPRESENTATION

Veteran represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The Veteran
ATTORNEY FOR THE BOARD

D. Johnson, Counsel


 INTRODUCTION

The Veteran, who is the appellant, served on active duty from May 2002 to December 2008.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of March 2009 rating decision of a Department of Veterans' Affairs (VA) Regional Office (RO).  

In October 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is the record.





The issues of entitlement to service connection for right and left foot disabilities and right and left knee disabilities, left ankle strain and sinusitis 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 the date of service connection, degenerative joint disease of the thoracolumbar spine has been manifested by forward flexion greater than 60 degrees, a combined range of motion greater than 120 degrees with a normal gait and normal spine contour without objective neurological abnormality or incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks during a 12-month period. 

2.  Prior to August 12, 2009, degenerative joint disease of the cervical spine was manifested by forward flexion greater than 30 degrees, a combined range of motion greater than 170 degrees with a normal gait and normal spine contour without objective neurological abnormality or incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks during a 12-month period.

3.  From August 12, 2009, to March 19, 2010, degenerative joint disease of the cervical spine was manifested by forward flexion greater than 15 degrees, but greater than 30 degrees without objective neurological abnormality or incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks during a 12-month period. 

4.  From March 19, 2010, degenerative joint disease of the cervical spine is manifested by forward flexion greater than 30 degrees, a combined range of motion greater than 170 degrees with a normal gait and normal spine contour without objective neurological abnormality or incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks during a 12-month period.



5.  The left foot scar is well-healed without medical evidence of a painful scar or functional loss.

6.  A current bilateral hearing loss disability under 38 C.F.R. § 3.385 is not shown.


CONCLUSIONS OF LAW

1.  The criteria for an initial rating higher than 10 percent for degenerative joint disease of the thoracolumbar spine have not been met.  38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2013).

2.  Prior to August 12, 2009, the criteria for an initial rating higher than 10 percent for degenerative joint disease of the cervical spine have not been met.  38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2013).

3.  From August 12, 2009, to March 19, 2010, the criteria for an initial rating of 20 percent for degenerative joint disease of the cervical spine have been met.  38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2013).
 
4.  From March 19, 2010, the criteria for an initial rating higher than 10 percent for degenerative joint disease of the cervical spine have not been met.  38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2013).

5.  The criteria for an initial compensable rating for a left foot scar have not been met.  38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7804 (2013).

6.  The criteria for service connection for a bilateral hearing loss disability have not been met.  38 U.S.C.A. §§ 1110, 1112, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013).  



The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. 

Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim).
 
The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). 

The RO provided pre-adjudication VCAA notice by a letter dated in December 2008.  The VCAA notice included the type of evidence needed to substantiate a claim of service connection, namely, evidence of current disability; evidence of an injury or disease in service or event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service.



As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). 

On the initial claims for increase, where service connection has been granted and the initial disability ratings have been assigned, the claims have been more than substantiated, the claims have been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled.  Once a claim for benefits has been substantiated, the filing of a notice of disagreement with the RO's decision rating the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice.  Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable.  Goodwin v. Peake, 22 Vet. App. 128 (2008). 

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  The RO has obtained the service treatment records and VA records. 

The Veteran was afforded VA examinations in December 2008, in August 2009, and in March 2010.  As the VA examiners reviewed the Veteran's history and as medical analysis was applied to the facts of the case to reach the conclusion reached in the opinion and as the disabilities were described in sufficient detail to rate the disabilities, the examinations are adequate to decide the claims.  




See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding a medical opinion is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). 

As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Rating Principles

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 

VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7. 



A rating of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

Rating of a Disability of the Musculoskeletal System

A 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. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion, weakness, or atrophy.  38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). 

Spinal vertebrae are considered groups of joints.  As for joints, the factors of disability reside in reductions of the joints normal excursion of movements in different planes.  Factors for considerations include excess fatigability, pain on movement, swelling, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting and standing, and weight-bearing.  38 C.F.R. § 4.45; DeLuca, at 206-07. 

Also with periarticular pathology, painful motion is factor to be considered.  The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.






Spine Rating Criteria

A disability of the spine is rated 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.  

Under the General Rating Formula for Diseases and Injuries of the Spine, DC 5242 (degenerative arthritis of the spine) the following ratings will apply:

A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; or, a combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 

The criteria for a 20 percent rating are forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. 

A 30 percent rating is warranted for forward flexion of the cervical spine of 15 degrees or less or for favorable ankylosis of the entire cervical spine.





The criteria for a 40 percent rating are unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  38 C.F.R. § 4.71a, 

For the purpose of VA compensation, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  See Plate V, 38 C.F.R. § 4.71a.

For the purpose of VA compensation, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees.  The normal combined range of motion of the thoracolumbar spine is 340 degrees. 

Under the General Rating Formula for Diseases and Injuries of the Spine, any objective neurological abnormality is rated separately under the appropriate neurological Diagnostic Code.  

Diagnostic Code 8520 is the most appropriate neurological Diagnostic Code for rating sciatica associated with a disability of the lumbar spine.  

Diagnostic Code 8513 is the most appropriate neurological Diagnostic Code for rating radiculopathy associated with a disability of the cervical spine.  

Intervertebral disc syndrome is rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating Intervertebral Disc Syndrome), whichever method results in the higher rating. 





Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes replaces Diagnostic Code 5243, a 20 percent rating requires incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months.  A 40 percent rating requires incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. 

Thoracolumbar Spine

Evidence

The service treatment records show the Veteran complained of back pain throughout service.  In November 2008, history included several episodes of back pain from 2004 to 2008.  

In December 2008 on VA examination, the Veteran complained of nonradiating pain that was present once or twice a month.  He denied use of assistive devices.  He complained of numbness in his arms and legs associated with the pain.   The Veteran stated that he had four to five episodes of physician-prescribed bedrest in the last year.  Functional limitations included the inability to lift more than 35 pounds, to stand more than 2 hours, or to sit more than 2.5 hours.  Flare-ups occurred four to five times a year, precluding physical activity.

On physical examination the Veteran's gait, curvature of the spine, and posture were normal.  For the thoracolumbar spine, there was no tenderness or spasms. Flexion was to 90 degrees.  Extension was to 30 degrees.  Lateral flexion, right and left, was to 30 degrees.  Lateral rotation, right and left, was to 45 degrees.  The Veteran complained of pain throughout the entire range of motion.  On repetitive motion, there was no additional limitation due to pain, fatigue, weakness, or lack of endurance.  The straight leg extension was negative bilaterally.  




Motor strength was 5 of 5 in the lower extremities.  Reflexes were +2 in the knees and ankles bilaterally.  The remainder of the lower extremities was normal.  Atrophy was present in the calves.  The assessment was chronic thoracolumbar strain.  The VA examiner stated the peripheral neuropathy of the left lower extremity, including decreased sensation was due to peripheral nerve damage after phlebectomy of the left lower extremity.

In August 2009 on VA examination, the Veteran complained of nonradiating pain once or twice a month that lasts for two days.  He denied use of assistive devices.  He denied symptoms of weakness, incontinence, or any physician-prescribed bedrest.  He stated that on a daily basis he was unable to lift more than 35 pounds, walk more than 2 hours, or sit for more than 2 1/2 hours.  He described flare-ups occurring 4 to 5 times a year, lasting 3 to 4 days.  He is unable to perform any physical activities during a flare-up.

On physical examination, gait, curvature of the spine, and posture were normal.  There were no palpable spasms.  The straight leg extension was negative bilaterally.  For the thoracolumbar spine, flexion was to 90 degrees.  Extension was to 30 degrees.  Lateral flexion, right and left, was to 30 degrees.  Lateral rotation, right and left, was to 45 degrees.  All ranges of motion were without pain.  On repetitive motion, there was no additional limitation due to pain, fatigue, weakness, or lack of endurance.

In March 2010 on VA examination, the Veteran complained of nonradiating pain with monthly flare-ups.  He denied incontinence, physician-prescribed bedrest or incapacitating episodes. 

On physical examination, there was normal curvature and posture.  There were no spasms.  The straight leg extension was negative bilaterally.  Muscle tone was good and no muscle atrophy was present.  




For the thoracolumbar spine, flexion was to 90 degrees with pain at 50 degrees.  Extension was to 28 degrees.  Lateral flexion, right and left, was to 30 degrees with pain at 20 degrees.  Right lateral rotation was to 20 degrees with pain at 10 degrees.  Left lateral rotation was to 30 degrees with pain from 20 degrees.  There was no pain or decreased range of motion with three repetitions.  There also were no additional limitations due to pain, fatigue, weakness, or lack of endurance.  Motor strength was 5 of 5 in the lower extremities.  Reflexes were 2+ in the ankles and knees.  

In October 2011, the Veteran testified that his symptoms included back pain, muscle spasms, and tingling in his legs if he sits in a position for too long.  He also testified that in the past 12 months that at least twice a month, he could not complete a full work day due to his back pain.  When questioned as to whether he had ever been ordered to bedrest by a physician, he answered:  "Not on a frequent basis.  Generally if I call the VA Medical Center, the nurse in triage maybe will just tell me, "Okay, take your Flexeril, ibuprofen, stay in bed."  And that works pretty good about that." The Veteran denied having received any treatment for his back at VA medical facilities since his VA examination in 2008.

Analysis

The service-connected degenerative joint disease of the thoracolumbar spine was assigned an initial rating of 10 percent under Diagnostic Code 5242.  

Under the General Rating Formula, the criteria for the next higher, rating 20 percent rating are forward flexion of the thoracolumbar spine to no greater than 60 degrees.  The record shows that forward flexion was measured at 90 degrees on VA examinations in December 2008, in August 2009, and in March 2010.  There was no additional functional loss due to pain, weakness, excess fatigability, swelling, deformity, and atrophy.  




Ninety degrees of flexion does not more nearly approximate or equate to 60 degrees or less, considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, and painful movement under 38 C.F.R. §§ 4.40 and 4.45 and flare-ups and repetitive motion, and the criteria for the next higher rating,  20 percent, based on limitation of flexion are not met.

While the Veteran is competent to described pain and as pain on flexion began at 50 degrees on VA examination in March 2010, the pain did not raise to the level of the criteria for the next higher rating for limitation of flexion.  See Mitchell v. Shineski, 25 Vet. App. 32, 43 (2011) (pain must affect some aspect of normal movement in order to constitute functional loss under 38 C.F.R. § 4.40). 

As for the combined range of motion of the thoracolumbar spine, on VA examinations in December 2008 and in August 2009, the ranges of motion were 90+30+30+30+45+45 = 270 degrees.  On VA examination in March 2010, the ranges of motion were 90+28+30+30+ 30+30 = 238 degrees. As the findings are greater than 120 degrees, the criteria for the next higher rating based on combined range of motion have not been met.

The 10 percent rating is the minimum rating for the thoracolumbar spine.  38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (painful motion under 38 C.F.R. § 4.59 does not require arthritis for a minimum rating for the specific joint).  

As for a separate rating for objective neurologic abnormalities, the VA examinations revealed no motor or sensory deficits associated with the thoracolumbar spine.  Motor strength was 5 of 5 in the lower extremities.  Reflexes were active.  Sensation was normal, exception for peripheral nerve damage in the left lower extremity that was associated with the service-connected peripheral nerve damage after a phlebectomy of the left lower extremity.  And rating of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14.  In the absence of evidence of objective neurologic abnormality, a separate compensable rating cannot be assigned. 


Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a higher rating of 20 percent requires incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  

On VA examination in December 2008, the Veteran's statements suggested that he experienced more than two weeks of incapacitating episodes in the prior 12-month period, but there is no evidence of physician-prescribed bedrest.  On VA examinations in August 2009 and in March 2010, the Veteran denied having incapacitating episodes.  In the absence of evidence of physician-prescribed bedrest, totalling at least 2 weeks but less than 4 weeks during a 12 month period, the criteria for the next higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes have not been met. 

Cervical Spine

Evidence 

In December 2008, an electromyography and nerve conduction study (EMG/NCV) by VA of the right upper extremity was normal.

In December 2008 on VA examination, the Veteran complained of pain once every one to two weeks.  He also complained of numbness and weakness and pain in the upper extremities.  He stated that he had three episodes of physician-prescribed bedrest.  He stated that he had flare-ups of pain once every two months that lasted two to four days, preventing physical activities and that he was unable to lift more than 35 pounds.  







On physical examination, for the cervical spine flexion was to 45 degrees.  Extension was to 45 degrees.  Right and left lateral flexion was to 45 degrees.  Pain was present at the endpoint of all ranges of motion.  Right and left rotation was to 80 degrees with pain from 60 degrees bilaterally.  The combined range of motion was 45+45+45+45+80+80 = 340 degrees.  On repetitive motion, there were no additional limitations due to pain, fatigue, weakness, or lack of endurance.  Strength and sensation were normal in the upper extremities. 

In August 2009 on VA examination, the Veteran complained of subjective symptoms similar to the symptoms he reported on VA examination in December 2008, but he denied physician-directed bedrest.  On physical examination, curvature and posture were normal and spasms were not palpable.  For the cervical spine flexion was to 30 degrees.  Extension was to 30 degrees.  Right and left lateral flexion were to 30 degrees without pain.  Right and left rotation were to 45 degrees without pain.  The combined range of motion was 30+30+30+30+45+45 = 210 degrees.  On repetitive motion, there were no additional limitations due to pain, fatigue, weakness, or lack of endurance.  Strength and sensation were normal in the upper extremities.  The impression was cervical spine strain with radiculopathy to the right upper extremity.

In March 2010 on VA examination, the Veteran complained of nonradiating pain with flare-ups once every 6 to 8 weeks, lasting 3 to 4 days.  He denied physician-prescribed bedrest or incapacitating episodes. 

On physical examination, for the cervical spine flexion was to 45 degrees.  Extension was to 42 degrees.  Right and left lateral flexion were to 40 degrees without pain.  Right and left rotation were to 80 degrees without pain.  The combined range of motion was 45+42+40+40+80+80 = 327 degrees.  There was no pain or decreased range of motion with three repetitions.  Motor strength was 5 of 5 in the upper extremities and there was normal sensation to light touch. 




In October 2011, the Veteran testified that in the past 12 months he missed about three to four days of work each month.  The Veteran denied having received treatment since the VA examination in 2008.  

Analysis

The service-connected degenerative joint disease of the cervical spine was assigned an initial rating of 10 percent under Diagnostic Code 5242.  

Staged Ratings 

Based on Limitation of Motion  

A Rating Prior to August 12, 2009

Under the General Rating Formula, the criteria for the next higher rating, 20 percent, are forward flexion no greater than 30 degrees.  On VA examination in December 2008, forward flexion was to 45 degrees.  There was no additional functional loss due to pain, weakness, excess fatigability, swelling, deformity, or atrophy.  Forty-five degrees of flexion does not more nearly approximate or equate to 30 degrees or less, considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, and painful movement under 38 C.F.R. §§ 4.40 and 4.45 and flare-ups and repetitive motion, and the criteria for the next higher rating, 20 percent, based on limitation of flexion are not met. 

As for the combined range of motion of the cervical spine, the ranges of motion were s 45+45+45+45+80+80 = 340 degrees.  As the findings are greater than 170 degrees, the criteria for the next higher rating based on combined range of motion have not been met.





The 10 percent rating is the minimum rating for the cervical spine.  38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (painful motion under 38 C.F.R. § 4.59 does not require arthritis for a minimum rating for the specific joint).  

From August 12, 2009, to March 19, 2010

Under the General Rating Formula, forward flexion was to 30 degrees on VA examination on August 12, 2009.  There was no additional functional loss due to pain, weakness, excess fatigability, swelling, deformity, and atrophy.  As forward flexion greater than 15 degrees but not greater than 30 degrees, the criteria for a 20 percent rating were met.  The combined range of motion of the cervical spine was 210 degrees (30+30+30+30+45+45 = 210 degrees), which is greater than 170 degrees.  As the findings are greater than 170 degrees, the criteria for a 20 percent rating based on combined range of motion were not met. 

As for a rating higher than 20 percent based on limitation of motion, the criteria for the next higher rating is forward flexion of the cervical spine to 15 degrees or less or favorable ankylosis of the entire cervical spine.  Thirty degrees of forward flexion does not more nearly approximate or equate to 15 degrees or less, considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, and painful movement under 38 C.F.R. §§ 4.40 and 4.45 and flare-ups and repetitive motion, and favorable ankylosis has not been shown.  Therefore the criteria for a rating higher than 20 percent rating based on limitation of forward flexion or on favorable ankylosis were not met.

From March 19, 2010

On VA examination in March 19, 2010, the forward flexion was to 45 degrees without any pain or additional loss of motion on repetitive movement.  





Forty-five degrees of forward flexion does not more nearly approximate or equate to 30 degrees or less, considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, and painful movement under 38 C.F.R. §§ 4.40 and 4.45 and flare-ups and repetitive motion, and the criteria for 20 percent, based on limitation of flexion are not met.

As for the combined range of motion of the cervical spine was 327 degrees (45+42+40+40+80+80 = 327 degrees), and as the findings are greater than 170 degrees, the criteria for the next higher rating based on combined range of motion have not been met.

A Rating Based on Objective Neurologic Abnormality 

As for a separate rating for objective neurologic abnormalities, the VA examinations revealed no objective motor or sensory deficits of the cervical spine on neurological evaluation of the upper extremities.  In December 2008, the EMG/NCV was normal.  While the Veteran has described subjective symptoms of numbness and tingling in the right upper extremity, no object neurologic abnormality in the right or left upper extremity has been identified.

In the absence of evidence of an objective neurologic abnormality, a separate compensable rating cannot be assigned at any time during the appeal.  

A Rating under the Formula for Rating Incapacitating Episodes

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the criteria for 20 percent are incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks during the past 12 months.  The criteria for a 40 percent rating are incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks during the past 12 months.




On VA examination in December 2008, the Veteran stated that he had three episodes of physician-prescribed bedrest.  He denied incapacitating episodes on VA examinations in August 2009 and in March 2010.  In the absence of incapacitating episodes, that is, a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician, having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months or incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months, the criteria for higher staged ratings have not been met.

Scar of the Left Foot

The service treatment records show that in September 2008 the Veteran had a first metatarsal osteotomy and bunionectomy on the left foot.

On VA examination in December 2008, there was a 7 centimeter (cm) well-healed surgical scar on the medial aspect of the left foot.  The scar was about 0.2 cm wide.  The scar was flat, somewhat darker that the surrounding tissue, and fixed.  The scar was nontender without functional impact or evidence of induration or skin breakdown.

In October 2011, the Veteran testified that he could feel the scar if he tied his shoes too tight.  

The scar is currently rated as noncompensable under Diagnostic Code 7804.  As disability ratings are based on relevant medical evidence, and as the VA examiner in December 2008 described the scar as nontender the criterion for a compensable rating based on a painful scar has not been met.  See 73 Fed. Reg. 428, 430 (January 3, 2008) (in the proposed amendment to the current Diagnostic Code 7804, VA removed the painful scar ''on examination'' language, because VA's disability ratings are based on relevant medical evidence, as such, ''on examination'' is redundant). 



See 73 Fed. Reg. 54710 (October 23, 2008) (VA implemented the amendment as a final rule and there was no public comment on the amendment to Diagnostic Code 7804).  While the Veteran is competent to describe pain, the consistent theme of the Rating Schedule is the requirement of objective medical evidence to support a rating.  

As for another potential applicable Diagnostic Code, Diagnostic Code 7805 provides that a scar is ratable on any disabling effect on the part affected.  In December 2008, VA examiner stated that there was no functional impact from the scar, and the Veteran has not asserted otherwise. 

For the reasons expressed, the Board finds that the preponderance of the evidence is against an initial compensable rating for a scar on the left foot at any stage during the appeal and the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b).

Extraschedular Consideration

While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether a claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating.

The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate.

There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria.  If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required.  


Thun v. Peake, 22 Vet. App. 111,115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366   (Fed. Cir. 2009).

Here, the rating criteria reasonably describe the Veteran's service-connected disabilities of the thoracolumbar spine and cervical spine and scar.  The thoracolumbar spine and cervical spine disabilities are manifested by painful motion, limitation of motion, and functional impairment.  There is no objective evidence of cervical or lumbar neurologic abnormalities.  The left foot scar is not painful and without functional loss.   

The disability pictures are contemplated by the rating schedule. In other words, the Veteran does not experience any symptomatology not already encompassed in the Rating Schedule under the rating criteria and the assigned schedular ratings are therefore adequate.  Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1).

Total Disability Rating for Compensation based on Individual Unemployability

During the appeal period, the RO denied the claim for a total disability rating, which the Veteran did not appeal.  And since then the Veteran has been employed. And the evidence of record does not reasonably raise a claim for a total disability rating.  See Rice v. Shinseki, 22 Vet. App. 447(2009) (holding that a request for a total disability rating based on individual unemployability, whether expressly raised by the veteran or reasonably raised by the record, is not a separate claim for benefits).

Principles and Theories of Service Connection

A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service.  38 U.S.C.A. § 1110 (wartime service). 


Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement.  All three elements must be proved.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004).

In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1110 as implemented in 38 C.F.R. § 3.303.

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). 

Disorders diagnosed after discharge will still be service-connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for hearing loss of the sensorineural type, if the disability is manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309.  

For the conditions explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) provide an alternative method of establishing the second and third elements through a demonstration of continuity of symptomatology.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  





The threshold for normal hearing is from 0 to 20 decibels at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, and a higher threshold level indicates some degree of hearing loss, but not necessarily a hearing loss disability under 38 C.F.R. § 3.385.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

Hearing loss for the purpose of VA disability compensation is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385. 

Evidentiary Standards

VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  As the Veteran did not serve in combat, the combat provision of 38 U.S.C.A. § 1154(b) does not apply.

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact (i.e. admissible); while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). 

Competency is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).


When the evidence is admissible, the Board must then determine whether the evidence is credible.  Credible evidence is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). 

If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, whether the evidence tends to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, it has no probative value. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b). 

Hearing Loss

Evidence 

The service treatment records show that on audiogram in May 2008 the puretone thresholds were:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
5
15
20
LEFT
25
5
10
20
40

In July 2008, the Veteran complained of difficulty hearing speech.  History included of environmental noise, exposure to jet engines, and performing in a service band without use of hearing protection devices.  




The puretone threshold were:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
20
25
30
LEFT
15
15
15
15
40

The speech recognition scores were 100 percent, bilaterally.  The assessments were sensorineural hearing loss and noise-induced hearing loss.

On the Veteran's Report of Medical History form that was completed in October 2008 in connection with separation from service, the Veteran complained of hearing loss.  There is no record of an audiogram performed upon separation.

On VA audiologic examination in December 2008, an audiogram showed:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
10
15
30
LEFT
10
15
10
15
35

The speech recognition scores were 96 percent in the right ear and 100 percent in the left ear.

On VA audiologic examination in March 2010, an audiogram showed:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
5
15
25
LEFT
15
10
5
20
30



The speech recognition scores were 96 percent, bilaterally.

In October 2011, the Veteran testified that he was exposed to loud noise during service in training exercises, including the firing of small arms and artillery fire and helicopter noise.  

Analysis

The Veteran asserts that hearing loss is due to noise exposure in service.  

The service audiogram in July 2008 shows impaired hearing in both ears, as some of the thresholds were more than 20 decibels at the tested frequencies.  This audiogram, and the prior one in May 2008, showed a left ear hearing loss disability under 38 C.F.R. § 3.385, specifically (a 40 decibel threshold at one tested frequency).  On the basis of the service treatment records alone, only a left ear hearing loss disability under 38 C.F.R. § 3.385 was affirmatively shown to have been present in service.  Service connection for a right ear hearing loss disability under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) is not established.  

While the Veteran may have been exposed to noise during service, and is shown to have had a left ear hearing loss disability in service, there is no competent evidence showing he currently suffers from a hearing loss disability under 38 C.F.R. § 3.385 as to either ear.  

The Veteran is competent to describe impaired hearing, which is within the realm of his personal experience.  38 C.F.R. § 3.159; see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).

Also, the Veteran as lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 



The Veteran as a lay person is also competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

A hearing loss disability is not a simple medical condition because the diagnosis is based on results of audiology testing that meet the standards of hearing loss disability under 38 C.F.R. § 3.385.  For this reason, the Board determines that while the Veteran is competent to describe impaired hearing, he is not competent to state that the level of impaired hearing reaches the level of the legal standard of a hearing loss disability for the purpose of VA disability compensation under 38 C.F.R. § 3.385.  Also, a hearing loss disability under 38 C.F.R. § 3.385 is not a condition under case law that has been found to be capable of lay observation.  

The Veteran as a lay person is not competent to declare either the presence or diagnosis of a hearing loss disability under 38 C.F.R. § 3.385 based on personal observation as any inference based on what is not personally observable cannot be competent lay evidence.  And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to identify a hearing loss disability by audiogram under 38 C.F.R. § 3.385.

Where, as here, there is a question of a diagnosis, not capable of lay observation by case law, and a hearing loss disability is not a simple medical condition, the Veteran is not competent to state that any current impaired hearing loss is a hearing loss disability under 38 C.F.R. § 3.385.  To this extent, the Veteran's statements are excluded, that is, not admissible as evidence favorable to claim. 

As the Board does not find the Veteran competent to establish a diagnosis of a current hearing loss disability under 38 C.F.R. § 3.385, the Board need not reach the question of whether or not the Veteran's statements are credible.

As the Veteran's lay evidence is not competent evidence to establish a diagnosis of a current hearing loss disability under 38 C.F.R. § 3.385, the Board will next consider the other evidence of record.  


The Veteran has not reported a contemporaneous medical diagnosis of bilateral hearing loss, or provided any competent evidence to establish a current bilateral hearing loss disability under 38 C.F.R. § 3.385.

On VA examinations in December 2008 and in March 2010 the VA examiners, both of whom are audiologists that are qualified through education, training, or experience to offer audiometric findings, provided audiometry results that did not reflect a current left or right ear hearing loss disability under 38 C.F.R. § 3.385.

Considering the VA examiners' findings and in the absence of any competent and medical evidence to the contrary, the VA examiners' findings are persuasive medical evidence against the claim on the question of whether there exists a current hearing loss disability under 38 C.F.R. § 3.385.  The Veteran has not otherwise identified or provided existing audiometric testing results that meet the requirements of 38 C.F.R. § 3.385.  

The Veteran's testimony regarding the circumstances of his service is accepted as satisfactory evidence that he experienced noise exposure during service.  While noise exposure is what happened in service, evidence of a current disability and a nexus to service is still required to establish service connection.  There is no competent medical evidence showing he suffers from a hearing loss disability under 38 C.F.R. § 3.385.  

In the absence of proof of a current bilateral hearing loss disability under 38 C.F.R. § 3.385, there can be no valid claim.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  As the preponderance of the evidence is against the claim of service connection, there is no doubt to be resolved and service connection for the claimed disability is not warranted. 






ORDER
An initial rating higher than 10 percent for degenerative joint disease of the thoracolumbar spine is denied.

Prior to August 12, 2009, an initial rating higher than 10 percent for degenerative joint disease of the cervical spine is denied.  

From August 12, 2009, to March 19, 2010, an initial rating of 20 percent for degenerative joint disease of the cervical spine is granted.  

From March 19, 2010, a rating in excess of 10 percent for degenerative joint disease of the cervical spine is denied.

An initial compensable rating for a scar on the left foot is denied.

Service connection for a bilateral hearing loss disability is denied.


REMAND

On the claims of service connection for right and left foot disabilities, right and left knee disabilities, left ankle strain, and sinusitis, although the Veteran was afforded VA examinations in December 2008 and in March 2010, the VA examinations are inadequate to decide the applicable theories of service connection.  Once VA has provided a VA examination, it is required to provide an adequate one and further development under the duty to assist is needed.

In October 2011, the Veteran testified that Dr. Tessler, a podiatrist, has treated him since 2006, including for a left ankle strain.  As the evidence necessary to substantiate the claim is incomplete, further development under the duty to assist is needed.



Accordingly, the case is REMANDED for the following action: 

1.  Ask the Veteran either to submit or to authorize VA to obtain on his behalf the private medical records of Dr. Tessler and the Carolina Foot Center since 2006.  

2.  On the claim of service connection for right and left foot disabilities, afford the Veteran a VA examination by a VA examiner, who has not previously examined the Veteran, to determine:  

a).  Whether the Veteran has flat feet or an equinus deformity, and, if so, 

b).  Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability approximately 50 percent), less likely than not (probability less than 50 percent) that the current flat feet or equinus deformity or both are a progression of the in-service findings by a private podiatrist or the development of a new and separate condition?  

In formulating the opinion, the VA examiner is asked to address the in-service findings by Dr. Tessler, DPM, dated May 14, 2008, May 30, 2008, and November 18, 2008.  [see service department records envelope: volume 1 of 2].






In the alternative:

c).  Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability approximately 50 percent), less likely than not (probability less than 50 percent) that the current flat feet or equinus deformity or both are caused by or aggravated by the service-connected disabilities of the great toes?  

The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to a service-connected disability as contrasted to a temporary worsening of symptoms.   

The Veteran's file must be made available to the examiner for review.  

3.  On the claims of service connection for right and left knee disabilities, and left ankle strain, afford the Veteran a VA examination by a VA examiner , who has not previously examined the Veteran to determine:   

a).  Whether the Veteran has a current disability of either knee other than pain or left ankle strain, and, if so, 

b). Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability approximately 50 percent), less likely than not (probability less than 50 percent) that:


Any current disability of either knee or left ankle strain is due to an injury or event in service? 

In formulating the opinion, the VA examiner is asked to consider that the Veteran as a lay person is competent to describe knee and ankle symptoms during service although there is no in-service contemporaneous record. 

Stated differently, the VA examiner must account for the Veteran's statements about the onset of symptoms as it relates to the current disabilities. 

In the alternative:

c).  Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability approximately 50 percent), less likely than not (probability less than 50 percent) that any current disability of either knee or left ankle strain are caused by or aggravated by the service-connected disabilities of the thoracolumbar spine, left hip, and great toes?  

The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to a service-connected disability as contrasted to a temporary worsening of symptoms.   

The Veteran's file must be made available to the examiner for review.  


4.  On the claim of service connection for sinusitis, afford the Veteran a VA examination by a VA examiner, who has not previously examined the Veteran, to determine:  

a).  Whether the Veteran has chronic sinusitis, and, if so, 

b).  Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability approximately 50 percent), less likely than not (probability less than 50 percent) that the current sinusitis is a progression of the in-service sinusitis in December 2003 or the development of a new and separate condition?  

In the alternative:

c).  Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability approximately 50 percent), less likely than not (probability less than 50 percent) that sinusitis is caused by or aggravated by the service-connected allergic rhinitis?  

The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to a service-connected disability as contrasted to a temporary worsening of symptoms.   




The Veteran's file must be made available to the examiner for review.

5.  After the development has been completed, adjudicate the claims.  If any benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board.

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

The claims 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).



______________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs