Citation Nr: 1607830 Decision Date: 02/29/16 Archive Date: 03/04/16 DOCKET NO. 09-34 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. What evaluation is warranted for right lower extremity radiculopathy from September 10, 2007? 2. Entitlement to a compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active duty for training from July 12 to July 26, 1997, with additional active duty service from February 1982 to June 1992, and from May to December 2003. This matter was originally on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Columbia, South Carolina. This matter is before the Board of Veterans' Appeals (Board) following a March 2012 remand. In July 2011, the Veteran testified at a videoconference hearing. A transcript of that hearing is of record. The claims file is now entirely in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS). FINDINGS OF FACT 1. Since September 10, 2007, the Veteran's right lower extremity radiculopathy has been manifested by no more than mild incomplete paralysis of the sciatic nerve. 2. During the entire appeal period, at its worst, the Veteran's bilateral hearing loss has been manifested by Level II hearing acuity in both ears. CONCLUSIONS OF LAW 1. Since September 10, 2007, the criteria for an evaluation in excess of 10 percent for right lower extremity radiculopathy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8520 (2015). 2. The criteria for an initial compensable evaluation for bilateral hearing loss have not been met at any time during the appeal period. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.85, 4.86, 4.87, Diagnostic Code 6100 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters Pursuant to the Board's March 2012 Remand, the RO obtained VA treatment records from May 2011, scheduled VA examinations to determine the severity of the Veteran's right lower extremity radiculopathy and bilateral hearing loss, readjudicated the Veteran's claims, and issued a Supplemental Statement of the Case. Based on the foregoing actions, the Board finds that there has been compliance with the Board's March 2012 Remand. Stegall v. West, 11 Vet. App. 268 (1998). As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in September 2007 and January 2008 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. During the July 2011 Board hearing, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claim. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran is appealing the original assignment of a disability evaluation following an award of service connection for right lower extremity radiculopathy. As such, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). With respect to bilateral hearing loss, as the Veteran is requesting a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Right Lower Extremity Radiculopathy The Veteran's right lower extremity radiculopathy has been evaluated as 10 percent disabling pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520, for paralysis of the sciatic nerve. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120 (2015). Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123 (2015). The maximum rating which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. 38 C.F.R. § 4.124 (2015). In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124(a). When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor. Id. The use of terminology such as "mild," "moderate," and "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6 (2015). Diagnostic Code 8520 assigns a 10 percent rating for mild, incomplete paralysis of the sciatic nerve. A 20 percent rating is assigns for moderate, incomplete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8520. VA treatment records indicate that in September 2007, the Veteran presented with complaint of radiculopathy. Physical examination demonstrated sciatic notch tenderness on right. Reflexes were equal bilaterally and sensation was intact. The Veteran was diagnosed as having degenerative disc disease/L3-4 radiculopathy. Later that month, the Veteran underwent VA examination at which time he reported constant back pain which radiated down his right leg to his foot with numbness and weakness. Physical examination revealed absent knee and ankle reflexes, however, sensation was normal to the lower extremities, there was no atrophy noted in his calves, and strength in the lower extremities was normal. VA treatment records indicate that in November 2007, the Veteran complained of low back pain and right radiculopathy for 10 years. The provider noted that although most pain was in the posterior and lateral aspects of his leg, some pain was in L3/4 distribution was seen briefly. In December 2007, the Veteran complained of difficulty walking, bilateral leg weakness, and numbness. In March 2008, the Veteran complained of shooting pain into both legs with new numbness/tingling from his right leg to foot. In August 2009, the Veteran presented with complaints of worsening back pain radiating down right leg. He stated that the pain was 9/10 pain level and denied new numbness and weakness. In September 2009, the Veteran reported his right leg giving away and falling two or more times. In October 2009, the Veteran presented for a neurosurgical consultation with complaints of right lower extremity pain including foot and numbness. The Veteran reported that his right lower extremity gave out at times causing falls. Physical examination demonstrated right lower extremity weakness, slightly diminished sensory, and symmetric deep tendon reflexes. In December 2009, the Veteran reported to the emergency room with complaint of back pain radiating down in right leg after a fall from his truck the day before. The Veteran reported numbness all the way down his right leg. In March 2010, the Veteran reported right leg sharp and stabbing pain of 7-8/10 severity from the outside of the thigh and calf to the top of his foot and right leg numbness/jerking at night. In April 2010, the Veteran reported numbness in the front of his right leg with throbbing pain for three days. In July 2010, the neurosurgeon noted that the Veteran had no lower extremity symptoms. At the January 2013 VA examination, the Veteran demonstrated normal muscle strength in knee extension, ankle plantar flexion, and ankle dorsiflexion. Reflex examination was normal, but sensory examination demonstrated decreased sensation in the L3/4 and L4/5/S1 distributions. There was no muscle atrophy and no trophic changes. The examiner determined that the Veteran had mild incomplete paralysis of the sciatic nerve. In a February 2013 addendum, the examiner noted lower extremity peripheral neuropathy examination in January 2013 with finding of decreased light touch sensation of right lower L3, 4, 5, S1 and diagnosis of sciatic nerve of mild severity with no functional loss of limitations. The Veteran underwent VA examination in January 2015 at which time he reported mild right lower extremity constant and intermittent pain, mild paresthesia/ dysesthesia, and mild numbness. Physical examination demonstrated normal muscle strength with no atrophy, normal deep tendon reflexes, and normal sensory function. There were no trophic changes. Straight leg raising was positive. The Veteran was diagnosed as having mild incomplete paralysis of the sciatic nerve. Although the Veteran has had some degree of sensory loss as well as one instance of absent deep tendon reflexes in September 2007, the preponderance of the evidence shows that the degree of loss did not rise to the level of moderate incomplete paralysis such as to warrant a 20 percent rating. Reflexes were normal earlier in September 2007 as well as on VA examination in October 2009 and January 2013 and January 2015. Accordingly, entitlement to an evaluation higher than 10 percent is not warranted for right upper extremity radiculopathy at any time during the appeal period. Bilateral Hearing Loss The Veteran's service-connected bilateral hearing loss has been evaluated as noncompensably disabling pursuant to 38 C.F.R. § 4.87, Diagnostic Codes 6100 for hearing impairment. Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by pure tone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second. "Pure tone threshold average" is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four. This average is used in all cases (including those in §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85, Diagnostic Code 6100. The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. 38 C.F.R. § 4.85. The horizontal rows in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone threshold average intersect. See 38 C.F.R. §§ 4.85, 4.87 (2015). On the audiological evaluation in February 2008, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 35 30 70 65 LEFT 30 40 75 75 The average of the pure tones between 1000-4000 Hz was 50 decibels for the right ear and 55 decibels for the left ear. Speech audiometry revealed speech recognition ability of 94 percent in both ears. Using Table VI in 38 C.F.R. § 4.85, the Veteran received numeric designations of I for both ears. Level I hearing acuity in both ears equates to a zero percent (noncompensable) evaluation. 38 C.F.R. § 4.85, Table VII. On the audiological evaluation in May 2011, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 5 15 65 55 LEFT 5 15 70 70 The average of the pure tones between 1000-4000 Hz was 35 decibels for the right ear and 65 decibels for the left ear. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 92 percent in the left ear. Using Table VI in 38 C.F.R. § 4.85, the Veteran received numeric designations of II for both ears. Level II hearing acuity in both ears equates to a zero percent (noncompensable) evaluation. 38 C.F.R. § 4.85, Table VII. On the audiological evaluation in June 2011, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 40 70 55 LEFT 15 25 75 70 The average of the pure tones between 1000-4000 Hz was 45 decibels for the right ear and 46 decibels for the left ear. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 92 percent in the left ear. Using Table VI in 38 C.F.R. § 4.85, the Veteran received numeric designations of II for the right ear and I for the left ear. Level I hearing acuity in the better ear and Level II hearing in the poorer ear equates to a zero percent (noncompensable) evaluation. 38 C.F.R. § 4.85, Table VII. On the audiological evaluation in January 2015, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 35 60 60 LEFT 20 25 70 60 The average of the pure tones between 1000-4000 Hz was 41 decibels for the right ear and 44 decibels for the left ear. Speech audiometry revealed speech recognition ability of 94 percent in both ears. Using Table VI in 38 C.F.R. § 4.85, the Veteran received numeric designations of II for the right ear and I for the left ear. Level I hearing acuity in the better ear and Level II hearing in the poorer ear equates to a zero percent (noncompensable) evaluation. 38 C.F.R. § 4.85, Table VII. The Board has considered the alternative rating scheme for exceptional patterns of hearing impairment and found it inapplicable here. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a) (2015). Additionally, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b) (2015). The record demonstrates that the Veteran does not exhibit exceptional patterns of hearing impairment; therefore, evaluation pursuant to 38 C.F.R. § 4.86 is not applicable. In Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the United States Court of Appeals for Veterans Claims (Court), noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dept of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2007). The Court noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the appellant bears the burden of demonstrating any prejudice caused by a deficiency in the examination. The June 2011 VA examiner noted that the Veteran reported difficulty hearing conversation without hearing aids. The January 2015 VA examiner noted that the Veteran reported difficulty hearing especially at work and commented that it would not be advisable for him to work in a hazardous noise environment as his residual hearing must be protected. In this case, the Veteran has not reported to VA that there was any prejudice caused by a deficiency in the examination. The Veteran, as a lay person, is competent to submit evidence of how the hearing loss affects his everyday life. See Layno v. Brown, 6 Vet. App. 465, 469- 470 (1994) (finding that lay testimony is competent when it regards features or symptoms of injury or illness). In this case, the evidence preponderates against finding entitlement to a compensable disability evaluation at any time during the appeal period for bilateral hearing loss. Additional Considerations The discussion above reflects that the symptoms of the Veteran's hearing loss and right lower extremity radiculopathy are contemplated by the applicable rating criteria. The effects of his hearing loss and right leg disability, including pain, weakness, and diminished sensation have been fully considered and are contemplated in the rating schedule. Thus, consideration of whether his disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extra-schedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). Under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. In this case, however, even after applying the doctrine of reasonable doubt, there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. In Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) the United States Court of Appeals for Veterans Claims held that a request for a total rating based on individual unemployability, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a total disability evaluation based on individual unemployability due to service connected disorders is warranted as a result of that disability. In the present case, there is no indication in the record that reasonably raised a claim of entitlement to individual unemployability benefits. The record indicates that the Veteran has worked for many years as a truck driver. The most recent VA spine examination report indicates that the Veteran was still employed although it is unclear whether he is still working as a truck driver. ORDER Entitlement to an evaluation in excess of 10 percent for right lower extremity radiculopathy from September 10, 2007 is denied. Entitlement to a compensable evaluation for bilateral hearing loss is denied. ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs