Citation Nr: 1641418	
Decision Date: 10/24/16    Archive Date: 11/08/16

DOCKET NO.  04-04 377	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to an increased evaluation for a service-connected low back disability, currently evaluated as 40 percent disabling.  

2.  Entitlement to an increased evaluation for right leg L5 radiculopathy, currently evaluated as 20 percent disabling.  

3.  Entitlement to an initial compensable evaluation for service-connected right ear hearing loss.

4.  Entitlement to an initial evaluation in excess of 10 percent for tinnitus.  

5.  Entitlement to service connection for an acquired psychiatric disability, claimed as anxiety disorder and sleep disorder, to include as secondary to service-connected disabilities.

6.  Entitlement to an initial evaluation in excess of 20 percent for right shoulder impingement syndrome.

7.  Entitlement to service connection for a disability of the neck/upper back, manifested by pain and numbness, to include as secondary to a service-connected low back disability and/or right shoulder impingement syndrome.

8.  Entitlement to service connection for bilateral shoulder numbness, to include as secondary to a service-connected low back disability and/or right shoulder impingement syndrome.


REPRESENTATION

Appellant represented by:	Virginia A. Girard-Brady, Attorney at Law


ATTORNEY FOR THE BOARD

Elizabeth Jalley, Counsel


INTRODUCTION

The Veteran served on active duty from September 1975 to June 1983 and from September 1985 to August 2000.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2003, February 2009, July 2010, June 2011, and August 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.

The July 2003 rating decision granted entitlement to service connection for right ear hearing loss and assigned a 0 percent (noncompensable) rating effective August 21, 2002, which was the date of claim.  A notice of disagreement with the assigned rating was received in August 2003, a statement of the case was issued in December 2003, and a substantive appeal was received in February 2004.

The February 2009 rating decision granted entitlement to service connection for right shoulder impingement syndrome and assigned a 20 percent rating effective August 21, 2002, which was the date of claim.  A notice of disagreement with the assigned rating was received in May 2009, a statement of the case was issued in January 2010, and a substantive appeal was received in February 2010.

The July 2010 rating decision denied entitlement to service connection for an anxiety disorder, to include a sleep disorder.  A notice of disagreement with the denial of service connection was received in July 2011, a statement of the case was issued in August 2012, and a substantive appeal was received in September 2012. 

The July 2010 rating decision also granted entitlement to service connection for tinnitus and assigned a 10 percent rating effective May 26, 2009, which was the date of claim.  A notice of disagreement with the disability rating was received in July 2011, a statement of the case was issued in August 2012, and a substantive appeal was received in September 2012.

The July 2010 rating decision also continued the 40 percent rating that was in effect for the Veteran's service-connected low back disability.  A notice of disagreement with the disability rating was received in July 2011, a statement of the case was issued in August 2012, and a substantive appeal was received in September 2012.

The June 2011 rating decision denied entitlement to service connection for neck/upper back pain with numbness and for shoulder numbness.  A notice of disagreement with the denials of service connection was received in May 2012, a statement of the case was issued in August 2012, and a substantive appeal was received in September 2012.

The August 2012 rating decision granted entitlement to service connection for right leg L5 radiculopathy and assigned a 20 percent rating effective February 13, 2009, which was the date of claim.  A notice of disagreement with the assigned rating was received in July 2013, a statement of the case was issued in October 2014, and a substantive appeal was received in November 2014.  The Board notes that the July 2013 notice of disagreement and the October 2014 statement of the case also addressed the issue of entitlement to an effective date prior to February 13, 2009, for the grant of entitlement to service connection for tinnitus.  This issue, however, was neither expressly nor implicitly appealed, and was not even mentioned, in the November 2014 statement that was submitted in lieu of a VA Form 9, Appeal to Board of Veterans' Appeals, and is therefore not on appeal before the Board.  

The Board notes that the service-connected low back disability is actually identified as lumbar muscle spasm, Grade1 retrolisthesis L3-L4 by magnetic resonance imaging (MRI), central disc protrusion at L5-S1 by MRI, bulging disc at L3-4 and L4-5 by MRI.  For the sake of simplicity, the Board is referring to this disability as a "low back disability" herein.

The Board has expanded the issue of entitlement to service connection for anxiety disorder and sleep disorder to more broadly include entitlement to service connection for an acquired psychiatric disability pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled).

In August 2006, the Board, in relevant part, denied entitlement to an initial compensable rating for right ear hearing loss.  The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court).  On October 31, 2008, the Court issued a memorandum decision that, in pertinent part, vacated that part of the Board's August 2006 decision that denied entitlement to a compensable rating for right ear hearing loss.  The case was returned to the Board for further adjudication.  Specifically, the Court directed the Board to consider whether a remand for a new examination was warranted given the Veteran's indication that his hearing had worsened since his most recent VA examination.  

In May 2010, the Board remanded the claim of entitlement to an initial compensable rating for right ear hearing loss for additional development.  Specifically, the Board directed that the Veteran be scheduled for an examination to assess the current severity of his right ear hearing loss.  The requested development was completed, thereby satisfying the directive of the memorandum decision insofar as it applied to the right ear hearing loss claim.  The case has been returned to the Board for further appellate review.  

In February 2009, the Veteran requested to be scheduled for a hearing at his local RO.  He withdrew this request in writing in March 2009.

The issues of entitlement to a higher initial rating for right shoulder impingement syndrome, entitlement to service connection for an acquired psychiatric disability, claimed as anxiety disorder and sleep disorder, entitlement to service connection for a neck/upper back disability, and entitlement to service connection for bilateral shoulder numbness are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Even when considering functional impairment caused by factors such as pain, weakness, fatigability, incoordination, or pain on movement of a joint, as well as actually painful, unstable, or malaligned joints due to healed injury, the Veteran did not have a lumbar spine disability manifesting in unfavorable ankylosis; at no point during the appeals period has the Veteran required bed rest prescribed by a physician for at least six weeks in a 12-month period.

2.  The Veteran's right leg L5 radiculopathy is manifested by symptoms that may be characterized as no more than moderate, incomplete paralysis.

3.  The Veteran's right ear hearing loss has manifested by no more than Level II impairment, and the Veteran is not service connected for left ear hearing loss.

4.  The Veteran's service-connected tinnitus is assigned a 10 percent rating, which is the maximum schedular rating under the applicable rating criteria, and the rating schedule is adequate to evaluate such disability.


CONCLUSIONS OF LAW

1.  The criteria for assignment of a rating in excess of 40 percent for a lumbar spine disability have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243 (2015).

2.  The criteria for the assignment of a rating in excess of 20 percent for right leg L5 radiculopathy have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.123, 4.124, 4.124a, Diagnostic Code 8620 (2015).

3.  The criteria for an initial compensable disability rating for right ear hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(b), 4.85, 4.86, Diagnostic Code 6100 (2015).  

4.  The assignment of an initial evaluation in excess of 10 percent for tinnitus is not warranted.  38 U.S.C.A. § 1155; (West 2014); 38 C.F.R. §§ 3.321, 4.87, Diagnostic Code 6260 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act

The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims.  VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2014)).  In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA.  See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2015)).

The notice requirements of the VCAA require VA to notify the veteran of any evidence that is necessary to substantiate a claim, as well as the evidence VA will attempt to obtain and which evidence the veteran is responsible for providing.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction.  Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  The VCAA notice requirements, however, may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  See Dingess, supra; Pelegrini, supra.

The Board finds that the notification requirements of the VCAA have been satisfied in this case.  In this regard, the Board notes an evidentiary development letter dated December 2002 advised the Veteran of the evidence needed to substantiate his claim of entitlement to service connection for right ear hearing loss, while notice in connection with the Veteran's claim of entitlement to an increased rating for right ear hearing loss was sent to the Veteran in August 2005.  The December 2002 letter was sent to the Veteran prior to the initial adjudication of his right ear hearing loss claim in July 2003.  In March 2009, the Veteran was sent a letter in connection with his claim of entitlement to an increased rating for a low back disability, a claim that was initially adjudicated by the RO in July 2010.  The March 2009 letter and a May 2010 notice letter provided the proper notice in connection with the Veteran's claim of entitlement to a rating for right leg L5 radiculopathy, a claim that was initially adjudicated by the RO in August 2012.  A June 2009 letter provided the required information in connection with the Veteran's claim of entitlement to service connection for an acquired psychiatric disability, a claim that was initially adjudicated by the RO in July 2010.  The appellant was advised in these letters of his and VA's responsibilities under the VCAA, to include what evidence should be provided by him and what evidence should be provided by VA.  The Veteran was advised in letters dated in March 2009, June 2009, May 2010, and October 2015 as to the type of evidence needed to substantiate both the disability rating and effective date elements of his claims.

The Board notes that the October 2015 letter was not issued prior to the initial adjudication of the Veteran's claims, but that the Veteran had received timely notice of how to establish a disability rating and an effective date for all except the right ear hearing loss claim.  The right ear hearing loss claim was subsequently readjudicated, most recently in a February 2016 supplemental statement of the case.  Thus, any deficiencies in the timeliness of this notice letter would not be prejudicial.

The Board further finds that the duty to assist requirements of VCAA have also been satisfied in this case.  38 U.S.C.A. §§ 5103 and 5103A.  Specifically, the Board finds that all obtainable evidence identified by the Veteran relative to the issues on appeal has been obtained and associated with the claims folder.  In particular, the Board notes that the RO obtained service treatment records, VA medical records, and available identified private medical records.  Two records requests were made for each of the unavailable sources of private medical records, and the Veteran was notified of VA's inability to obtain such records and again informed that he may obtain and submit these records himself.  The Board therefore finds that VA has satisfied its duty to assist the Veteran in obtaining evidence that he has identified as pertinent to his claims.  

The RO arranged for the Veteran to undergo VA examinations in connection with his low back and his right L5 radiculopathy claims in April 2009 and May 2012; and in connection with his right ear hearing loss claim in January 2003, August 2009, and November 2015.  The Board finds that the resulting reports are adequate for the purpose of determining entitlement to increased ratings.  The examiners reviewed the record and elicited from the Veteran his history of complaints and symptoms.  The examination reports provide pertinent clinical findings detailing the results of the examinations to allow for effective evaluation of the Veteran's disabilities.  For these reasons, the Board concludes that the examination reports in this case provide an adequate basis for a decision.

The Board has considered whether to remand the low back and right L5 radiculopathy claims for a new VA examination, as the most recent examination performed for these claims was in May 2012.  The Board notes, however, that the duty to assist does not require a remand for re-examination solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95, 60 Fed. Reg. 43186 (1995); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999); Snuffer v. Gober, 10 Vet. App. 400 (1997).  In the case at hand, neither the Veteran nor his representative has asserted that the May 2012 VA examination was inadequate or that either disability has worsened since the May 2012 VA examination.  See 38 C.F.R. § 3.327(a) (2015).  Furthermore, there is no objective evidence indicating that there has been an increase in the severity of the Veteran's low back and right L5 radiculopathy disabilities since the May 2012 examination.  See id.  For these reasons, the Board finds that it is not necessary to remand these claims for the purpose of scheduling a new VA examination.

The Board has considered whether it is necessary to remand the low back disability claim in light of the holding in Correia v. McDonald, 28 Vet. App. 158 (2016).  As will be discussed in more detail below, the Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of range of motion testing on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint in compliance with 38 C.F.R. § 4.59 (2015).  As will be discussed in more detail below, the Board must remand the claim of entitlement to an increased rating for right shoulder impingement syndrome in order to direct that the Veteran be scheduled for an examination that complies with Correia.  The Board finds, however, that remand for such an examination is not required for the low back claim.  

Specifically, the Board notes that the Veteran is already in receipt of a rating for his low back disability that contemplates favorable ankylosis, and that the only way he may receive a higher schedular rating is by demonstrating unfavorable ankylosis.  (As will be described in more detail below, in the context of this claim, favorable ankylosis exists when the low back is fixed in a neutral position, while unfavorable ankylosis exists when the low back is fixed either in flexion or extension.)  Thus, entitlement to an increased rating may only be demonstrated by showing that the back is fixed in one particular position rather than in another.  This rating criterion does not involve assessment of range of motion, as the Veteran's ability to move his low back would necessarily preclude a finding of unfavorable ankylosis.  The Board therefore finds that a remand of this claim in order to obtain an examination that complies with Correia would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (concluding that remand is unnecessary where it "would result in this Court's unnecessarily imposing additional burdens on the [Board] with no benefit flowing to the veteran").

In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the 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 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2015).  The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow deficient, the appellant bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  As will be discussed in more detail below, the Board observes that the examination reports obtained in connection with the Veteran's right ear hearing loss claim describe the Veteran's reported functional impairment.  Thus, as contemplated by Martinak and directed by 38 C.F.R. § 4.10, the examiners discussed the functional effects of the Veteran's hearing problems in the examination reports.  

The evidence of record provides sufficient information to adequately evaluate the claims.  Therefore, no further assistance to the Veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the Veteran.  38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

II.  Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4.  Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  Evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder.  38 C.F.R. §§ 4.1, 4.2 (2015); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3 (2015).  If there is a question as to which evaluation to apply to the veteran's disability, 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 (2015).

In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder.  Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  Id. at 126-127.

When entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that staged ratings are also appropriate for an increased rating claim that is not on appeal from the assignment of an initial rating when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings.

The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 (2015) and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45 (2015).  See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995).

Another intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention 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; Burton v. Shinseki, 25 Vet. App. 1 (2011).  

Although pain may cause a functional loss, pain itself does not constitute functional loss.  Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40).

A.  Low Back Disability

The Veteran has claimed entitlement to a higher rating for a low back disability.  This disability is evaluated as 40 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2015), which assigns ratings based on the General Rating Formula for Diseases and Injuries of the Spine.  This rating has been in effect since February 13, 2009, which is the date of the Veteran's increased rating claim.  
      
Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent evaluation assigned when there is forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.

An evaluation of 50 percent or greater requires unfavorable ankylosis of the entire thoracolumbar spine.

Note 1 to this rating schedule states that any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under appropriate diagnostic codes.  

"Favorable ankylosis" is defined as "[f]ixation of a spinal segment in neutral position (zero degrees)"  Id. at Note (5).  "Unfavorable ankylosis" is defined, in pertinent part, as "a condition in which ... the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension...."  Id.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees.  38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note 2 (2015).

The record reflects that the Veteran also has intervertebral disc disease.  In such circumstances, a veteran's low back disability is to be rated based on either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher evaluation.  

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, intervertebral disc syndrome is to be evaluated either under the new general rating formula for diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever method is results in a higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  

A 60 percent rating is warranted for intervertebral disc syndrome manifested by incapacitating episodes having a total duration of at least six weeks during the past 12 months.  Note 1 of that code provides that, for purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.

An August 2008 VA medical record notes that the Veteran had limited range of motion of the low back, but that muscle tone was adequate and there were no deformities.

A December 2008 VA medical record notes that the Veteran reported low back pain.  On examination, he had limited range of motion, and muscle tone was adequate with no deformities.

In his February 2009 claim, the Veteran requested that his degenerative disc disease and right nerve stenosis be reevaluated because they have worsened considerably.  In an April 2009 statement, he reported that he is now using a Transcutaneous Electrical Nerve Stimulation (TENS) unit to relieve his constant pain in conjunction with pain killers.  He reported that pain results in a lack of sleep.  He stated that he has "moderate to severe pain, along with spasm and stiffness."  He reported fairly constant soreness and noted that his pain becomes intense when he attempts to walk.  

A February 2009 VA medical record notes that the Veteran reported severe low back pain for the past three to four weeks and that he had to stay in bed for 1.5 weeks.  On examination, range of motion of the lumbosacral spine was limited.  Muscle tone was adequate, and there were no deformities.  An assessment of discogenic disease of the lumbosacral spine with radiculopathy was noted.  

An April 2009 VA medical record notes that the Veteran had limited range of motion of the lumbar spine (but does not give actual range of motion measurements), that his muscle tone was adequate, and that there were no deformities.

The April 2009 VA spine examination report notes that the Veteran described his lumbar pain as pressure, stabbing, and current-like pain sensation that radiates toward the right lower extremity.  He was currently using medication as needed.  His back symptoms have progressively worsened, and response to treatment was fair.  There was no history of hospitalization or surgery.  There was no history of urinary symptomatology, fatigue, or weakness.  There was a history of decreased motion, stiffness, spasms, or pain.  The pain was identified to be in the lumbar area and was described as being a constant, stabbing, and pressure-like pain sensation of moderate severity.  Flare-ups were of moderate severity, occurred every two to three weeks, and lasted for hours.  Precipitating factors consisted of ambulation and prolonged time on sitting or standing position.  Alleviating factors included TENS and oral medications.  There were no incapacitating episodes of spine disease.  The Veteran walked with a cane.  He was able to walk more than 1/4 mile but less than one mile.  

The April 2009 examination report reflects posture and head position were normal and symmetrical in appearance.  There was lumbar flattening, but otherwise no abnormal spinal curvature.  There was objective evidence of lumbar spasm, pain with motion, and tenderness on the left and right sides.  There was no objective evidence of atrophy, guarding, or weakness.  The muscle spasm, localized tenderness, or guarding were not severe enough to be responsible for abnormal gait or abnormal spinal contour.  Active range of motion was flexion from 0 to 10 degrees, extension from 0 to 8 degrees, left and right lateral flexion from 0 to 8 degrees, and left and right lateral rotation from 0 to 12 degrees.  There was objective evidence of pain on active range of motion.  There was additional limitation of motion and objective evidence of pain on repetitive motion, with flexion from 0 to 8 degrees, extension from 0 to 6 degrees, left and right lateral flexion from 0 to 6 degrees, and left and right lateral rotation from 0 to 10 degrees.  The Veteran reported that he was working full time in facility operations and had missed one week of work over the last 12-month period due to low back pain.  He reported that his back disability has had significant effects on his usual occupation in that he had pain and problems with lifting and carrying.  His low back disability has a mild effect on feeding.  It has a moderate effect on his ability to do chores, shopping, recreation, travelling, bathing, dressing, and toileting.  It has a severe effect on grooming.  It prevents exercise and sports.  

A January 2010 VA medical record notes that the Veteran sought treatment for low back pain.  On examination, range of motion was intact, muscle tone was adequate, and there were no deformities.

A June 2010 VA medical record reflects that the Veteran complained of low back pain that radiated toward his right leg.  On examination, his range of motion was intact, muscle tone was adequate, and there were no deformities.

A July 2010 VA medical record notes that the Veteran reported low back pain.  On examination, range of motion was intact, muscle tone was adequate, and there were no deformities.

A November 2010 VA medical record reflects that the Veteran sought treatment for low back pain.  On examination, range of motion was intact, muscle tone was adequate, and there were no deformities.

The May 2012 VA back examination report states that the Veteran reported his back pain has worsened in intensity since the April 2009 VA examination.  He reported that it is a stabbing pain with associated numbness at the great toe.  He uses a lumbosacral corset and one-point cane for ambulation.  He reported that he gets flare-ups that cause difficulty walking.  On examination, forward flexion was to 40 degrees with objective evidence of painful motion beginning at 40 degrees.  Extension ended at 5 degrees with objective evidence of painful motion beginning at 5 degrees.  Left and right lateral flexion, as well as left and right lateral rotation, were to 10 degrees with objective evidence of painful motion beginning at 10 degrees.  There was no additional limitation of motion on repetitive movement.  Functional impairment was caused by less movement than normal and pain on movement.  The Veteran had right side paravertebral muscle tenderness.  Guarding and/or muscle spasm were present but did not result in abnormal gait or spinal contour.  The examiner indicated that the Veteran did not have radiculopathy of the left lower extremity or neurologic abnormalities other than the radiculopathy of the right lower extremity that will be discussed below.  The examiner determined that the Veteran does have intervertebral disc syndrome of the thoracolumbar spine and that he has had incapacitating episodes totaling less than one week over the past 12 months.  It was noted that he regularly uses a brace and constantly uses a cane to walk.  

It was noted that the Veteran's lumbar spine condition impacted his ability to work but that he was able to obtain and maintain a job requiring semi-sedentary duty work with several restrictions.  Specifically, the Veteran was not to be in a prolonged standing position, not to engage in prolonged walking or climbing stairs, and not to engage in repetitive bending of the spine.  He was not to pull, push, or perform heavy lifting (of more than 20 pounds).  It was recommended that he undergo an ergonomic evaluation and take several breaks during the day to stand up.  

A December 2013 VA medical record notes that the Veteran had limited range of motion of the low back, but muscle tone was adequate and there were no deformities.

An October 2014 VA medical record notes limited range of motion of the right shoulder and lower back, but that muscle tone was adequate and there were no deformities.

A December 2015 VA medical record notes that the Veteran reported having low back pain that radiates toward his left hip, limiting motion.  On examination, there was limited range of motion of the back and left hip, but muscle tone was adequate and there were no deformities.

As indicated above, in order to receive a rating in excess of 40 percent under the General Rating Formula for Diseases and Injuries of the Spine, there must specifically be unfavorable ankylosis of the entire thoracolumbar spine.  As noted above, unfavorable ankylosis occurs when the entire thoracolumbar spine is fixed in either flexion or extension.  The above evidence demonstrates limitation of motion of the lumbar spine, some of it quite severe, and some of it is the result of factors such as painful motion.  However, this level of impairment is contemplated by the 40 percent rating.  There is no indication of record, either in the medical evidence or in the Veteran's own lay statements, that his low back has been fixed in either flexion or extension at any point during this appeal.  Therefore, the General Rating Formula criteria for a rating in excess of 40 percent for a low back disability have not been met.  Moreover, where as here, the Veteran is already receiving the maximum disability rating for limitation of motion, 38 C.F.R. §§ 4.40 and 4.45 are not applicable.  Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  

Nor has the Veteran's low back disability satisfied the criteria for a rating in excess of 40 percent based on the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  As indicated above, a rating of 60 percent is available under these rating criteria if incapacitating episodes have a duration of at least 6 weeks during a 12-month period.  The Board finds that the evidence of record reflects that this criterion has not been met any time during the appeals period.  

With respect to incapacitating episodes, a February 2009 record notes that the Veteran had to stay in bed approximately 1.5 weeks during the past three to four week period.  The April 2009 VA spine examination report expressly notes that there had been no incapacitating episodes.  The May 2012 VA back examination report notes incapacitating episodes lasting one week out of the past 12-month period.  The Board notes, however, that the definition of the term "incapacitating episodes" that appears in the regulation requires that the bed rest be prescribed by a physician.  The February 2009 record reflects that the Veteran's 1.5 weeks of bed rest had not, in fact, been prescribed by a physician.  Even if it had, however, the 1.5 weeks of bed rest in the 12-month period would still fall well short of the minimum six weeks of bed rest that are required in order to satisfy the criterion for a 60 percent rating.  The same is true for the report in May 2012.  Based on the above, the Board finds that the Veteran does not satisfy the criteria for a rating in excess of 40 percent based on incapacitating episodes.

The Board has also considered whether separate ratings are warranted for neurologic abnormalities associated with the low back disability, as provided by Note 1 to the General Rating Formula.  A separate rating has already been assigned for the right lower extremity radiculopathy, and the propriety of that rating will be discussed below.  Otherwise, however, the Board finds that the evidence does not demonstrate that a separate compensable rating is warranted for any neurologic impairment.  Bowel and bladder impairment have been expressly denied by the Veteran on every occasion on which the issues have been raised.  The Veteran has repeatedly reported having radicular symptoms radiating into the right lower extremity.  Furthermore, the May 2012 VA examination report expressly indicates that the Veteran does not have radiculopathy of the left lower extremity or neurologic abnormalities other than the radiculopathy of the right lower extremity.  While the Veteran did complain of radiating pain into his left hip in December 2015, the General Rating Formula already contemplates functional impairment whether or not it radiates.  The clinical findings do not show a compensable disability associated with the left extremity such that a separate rating would be warranted at this time.  Therefore, the assignment of separate ratings for neurologic abnormalities associated with the Veteran's low back disability other than for the right lower extremity is not warranted.

In so finding the above, the Board recognizes that the Veteran believes he is entitled to a higher rating during this period.  However, the Veteran's competent and credible lay evidence regarding his symptoms are outweighed by the competent and credible medical evidence that evaluates the true extent of impairment due to his service connected low back disability based on objective data coupled with the lay complaints.  In this regard, the Board notes that the VA examiners and treating medical professionals have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints.  For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment.  

The Board has considered the doctrine of reasonable doubt.  However, as the preponderance of the evidence is against this claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Accordingly, entitlement to an increased rating for a service-connected disability of the lumbar spine must be denied.

B.  Right Leg L5 Radiculopathy

The Veteran has also claimed entitlement to an increased rating for right leg L5 radiculopathy.  This disability has been rated as neuritis of the sciatic nerve pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8620 (2015).  This disability has been assigned a 20 percent rating effective from the date of the February 13, 2009, claim.  

Neuritis, either 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 that may be assigned for neuritis not characterized by organic changes noted in the prior sentence will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis.  Id.  Injury to the sciatic nerve is rated under 38 C.F.R. § 4.123, Diagnostic Code 8520.  

Diagnostic Code 8520 assigns a 10 percent rating for mild incomplete paralysis, a 20 percent rating for moderate incomplete paralysis, a 40 percent rating for moderately severe incomplete paralysis, and a 60 percent rating for severe incomplete paralysis with marked muscular atrophy.  An 80 percent rating is assigned for complete paralysis, which is characterized by foot dangle and drop, no active movement possible of muscles below the knee, and flexion of knee weakened or (very rarely) lost.  38 C.F.R. § 4.124a, Diagnostic Code 8520.  

The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree.  See Note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124a (2015).

The maximum rating that may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis.  38 C.F.R. § 4.123.

The Board notes that words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, VA must evaluate all evidence to the end that decisions will be equitable and just.  38 C.F.R. § 4.6 (2015).  Although the use of similar terminology by medical professionals should be considered, the use of such terminology is not dispositive of an issue.  Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating.  38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. §§ 4.2, 4.6 (2015).

A December 2008 VA medical record notes that neurologic examination for the low back revealed no gross motor and sensory deficit.

In his February 2009 claim, the Veteran requested that his degenerative disc disease and right nerve stenosis be reevaluated because they have worsened considerably.

A March 2009 private medical record notes that the Veteran reported that low back pain radiates to the right thigh and limits ambulation, but that there was no numbness.  

An April 2009 VA medical record notes that there was no gross motor or sensory deficit on neurologic examination.  A needle electromyography (EMG) of the right lower extremity was normal, and there was no evidence of right lumbosacral radiculopathy.  

The April 2009 VA spine examination report notes that the Veteran described his lumbar pain as pressure, stabbing, and current-like pain sensation that radiates toward the right lower extremity.  He denied lower extremity numbness sensation.  Detailed motor examination was normal (5/5) throughout the lumbosacral spine, with normal muscle tone and no atrophy.  Detailed sensory examination was normal.  On detailed reflex examination, knee jerk and plantar flexion were normal, while ankle jerk was hypoactive.  Lasegue's sign, straight leg raise, and Patrick test were negative.  Lower extremity EMG and nerve conduction study (NCS) showed no sign of right lower extremity lumbosacral radiculopathy.

A January 2010 VA medical record notes that the Veteran sought treatment for low back pain.  On neurologic examination, there was no gross motor and sensory deficit. 

In a June 2010 personal statement, the Veteran reported that his symptoms "are a sharp and deep current/sensation on my right thigh followed by sleep or numbness ... [f]rom the toe to the entire leg."  He reported that "[t]he numbness appears during lower back pain events, especially during flare-ups that usually occur every month but the numbness stay[s] for several days more."  He described the pain as sometimes being a 7 on a scale of 1 to 10.  

A June 2010 VA medical record reflects that the Veteran complained of low back pain that radiated toward his right leg.  On examination, there was no gross motor or sensory deficit.  

A July 2010 VA medical record notes that the Veteran reported low back pain and right lower extremity numbness.  On examination, there was no gross motor or sensory deficit.

A November 2010 VA medical record reflects that the Veteran sought treatment for low back pain.  On examination, there was no gross motor or sensory deficit.

The May 2012 VA examination report notes that muscle strength testing was full for hip flexion, knee extension, ankle plantar flexion and dorsiflexion, and great toe extension.  The Veteran did not have muscle atrophy.  Deep tendon reflects were normal at the knee but were hypoactive at the ankles.  On sensory examination sensation to light touch was normal in the upper anterior thigh (L2) and thigh/knee (L3/4).  It was decreased in the lower leg/ankle (L4/L5/S1) and foot/toes (L5).  Straight leg raising test was negative.  The Veteran was noted to have severe, constant radicular pain and numbness in the right lower extremity, but he did not have any other signs or symptoms of radiculopathy.  The examiner indicated that the Veteran's radiculopathy was of moderate severity and that his left side was not affected.  

A December 2013 and October 2014 VA medical records note that there was no gross motor or sensory deficit.

To summarize, the evidence reflects motor impairment in the April 2009 and May 2012 VA examination reports.  Specifically, the April 2009 VA examination report notes that reflex examination showed hypoactive ankle jerk.  The May 2012 VA examination report also showed hypoactive ankle reflexes on deep tendon reflex examination.  It also showed that, on sensory examination, light touch was decreased in the lower leg/ankle and foot/toes (both of which involve the L5 vertebra).  

Otherwise, the evidence describes a level of impairment that is wholly sensory, or at least does not identify any additional types of motor impairment or suggest that the types of motor impairment that were found on examination were more severe at other times in this appeals period or have become more severe since the May 2012 VA examination.

For purposes of this analysis, the Board will therefore presume that the levels of impairment that were demonstrated in the April 2009 and May 2012 VA examination reports are consistent with the levels of impairment that existed throughout this appeals period.  That is, the Board will not assume that the Veteran only had motor impairment at the times of the April 2009 and May 2012 VA examinations.  

When considering the pertinent evidence of record, as described above, the Board finds that the level of impairment that is demonstrated in this case most closely approximates the rating criteria for moderate, incomplete paralysis  rather than the rating criteria for moderately severe, incomplete paralysis.  This determination is based on the evidence of record showing relatively mild motor and sensory impairment.  Specifically, the Board notes that the Veteran's pertinent muscle strength has been measured to be full at all times during the appeal, and at no time has muscle atrophy been found.  Furthermore, the ankle reflexes noted in April 2009 and May 2012 were assessed as being hypoactive rather than absent, while light touch at the lower leg/ankle and foot/toes was found to be decreased but not absent.  The above impairments in reflex and sensory examinations are at a level that is adequately compensated by the 20 percent rating.  Finally, even though an examiner's characterization of the Veteran's impairment is not dispositive, the Board considers it significant that the May 2012 VA examiner indicated that the Veteran's right lower extremity radiculopathy was of moderate severity.  This determination was based on the examiner's review of the claims file and interview and physical examination of the Veteran.  Based on the above, the Board finds that a rating in excess of 20 percent is not warranted for right leg L5 radiculopathy.

When evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date."  38 U.S.C.A. § 5110(b)(2) (West 2014); see also 38 C.F.R. § 3.400(o)(2) (2015); Harper v. Brown, 10 Vet. App. 125 (1997).  

In the case at hand, the rating for radiculopathy of the right lower extremity arose as part and parcel of the February 13, 2009, claim of entitlement to an increased rating for the service-connected low back disability.  Specifically, because Note 1 of the General Rating Formula for Diseases and Injuries of the Spine (under which the Veteran's low back disability is rated) directs that separate ratings be assigned for any associated neurological abnormalities, the Veteran's right lower extremity radiculopathy is contemplated by the February 13, 2009, claim of entitlement to an increased rating for a low back disability.  38 C.F.R. § 4.71a.  The Board may therefore consider whether to assign a rating as early as February 13, 2008, if the evidence demonstrates that a factually ascertainable increase in disability occurred during the period from February 13, 2008, to February 12, 2009.  

The only evidence of record during the one-year period prior to the VA's receipt of the Veteran's claim consists of a December 2008 VA medical record noting that the neurologic examination for the low back revealed no gross motor and sensory deficit.  Therefore, it is not factually ascertainable that the Veteran satisfied the criteria for a 20 percent rating for radiculopathy of the right lower extremity in the one-year period prior to the February 13, 2009, date of claim.  In so finding the above, the Board recognizes that the Veteran believes he is entitled to a higher rating during this period.  However, the Veteran's competent and credible lay evidence regarding his symptoms are outweighed by the competent and credible medical evidence that evaluates the true extent of impairment due to his service connected radiculopathy based on objective data coupled with the lay complaints.  In this regard, the Board notes that the VA examiners and treating medical professionals have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints.  For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment.  

C.  Right Ear Hearing Loss

The Veteran has claimed entitlement to an initial compensable rating for right ear hearing loss, effective August 21, 2002.  This rating is assigned under 38 C.F.R. § 4.85, Tables VI, VIA, and VII, Diagnostic Code 6100 (2015).

In evaluating hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment.  Level I indicates essentially normal acuity, while Level XI indicates profound deafness.  38 C.F.R. § 4.85, Tables VI, VII.  

An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and much include a controlled speech discrimination test (Maryland CNC) and a puretone test.  For each ear, the percent of speech discrimination and the puretone threshold average (which is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four) are combined on Table VI to produce a Roman numeral designation.  See 38 C.F.R. § 4.85.  The Roman numeral designations for hearing impairment of each ear are combined on Table VII to determine the percentage evaluation.

If impaired hearing is service-connected in only one ear, as in the case at hand, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman numeral designation for hearing impairment of I.  38 C.F.R. § 4.85(f) (2015).

Table VIA is used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86.  38 C.F.R. § 4.85(c).  When the puretone 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).  Additionally, when the puretone threshold is 30 decibels or less at 1000 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).

Turning to the evidence of record, the Veteran underwent VA audio examinations in January 2003, August 2009, and November 2015.

The January 2003 VA examination report shows puretone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
15
15
45

The puretone threshold average was 25 decibels in the right ear.  The Maryland CNC speech discrimination test revealed speech recognition ability of 100 percent in the right ear.  The above audiological findings show Level I hearing acuity in the right ear under Table VI.  Because the Veteran's left ear hearing is not service-connected, he is designated as having Level I hearing acuity in the left ear under 38 C.F.R. § 4.85(f).  Under Table VII, these findings do not warrant a compensable rating.  No exceptional pattern of hearing impairment was shown.

In his February 2004 substantive appeal, the Veteran reported that he has "a problem hearing from my right side.  I have to turn my face to compensate to be able to understand the conversation."  

A January 2009 VA medical record notes that the Veteran complained of right ear discomfort due to hearing noises.  

The Veteran underwent a private audiology examination in January 2009.  The Board notes, however, that in order for an audiometry examination to be valid for rating purposes, it must conform to the requirements of 38 C.F.R. § 3.385.  In relevant part, this regulation requires that the Maryland CNC be used to assess the Veteran's speech discrimination ability.  The private examination report of record does not reflect that such testing was used.  Therefore, the Board cannot use the results of the January 2009 audiometry examination to evaluate the severity of the Veteran's right ear hearing loss.  In so finding, the Board acknowledges that when VA concludes that a private medical examination report is unclear or insufficient in some way, and it reasonably appears that a request for clarification could provide relevant information that is otherwise not in the record and cannot be obtained in some other way, the Board must either seek clarification from the private examiner or the claimant or clearly and adequately explain why such clarification is unreasonable.  See Savage v. Shinseki, 24 Vet. App. 259, 269 (2011).  The Court's holding is limited to those instances in which the missing information is relevant, factual, and objective-that is, not a matter of opinion-and where the missing evidence bears greatly on the probative value of the private examination report.  Id.  Here, unlike in the Savage case, there is sufficient contemporaneous evidence of record to evaluate the disability during the relevant period.  The Veteran was examined that same year by VA in August 2009.  Therefore, the Board finds it unnecessary to seek clarification of the private audiological examination report.  The Board may, however, consider the Veteran's report at this examination that he experiences difficulty understanding when more than one person speaks.  

The August 2009 VA examination report shows puretone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
20
40
45

The puretone threshold average was 31.25 decibels in the right ear.  The Maryland CNC speech discrimination test revealed speech recognition ability of 100 percent in the right ear.  In terms of functional impairment, the Veteran reported that his hearing loss results in poor social interactions, difficulty following instructions, and hearing difficulty.  He reported that his daily activities are affected in that he has persistent sleep problems, frustration and anxiety, difficulty hearing in groups or in noisy environments, interference with enjoyment of the television and the radio, reduced social activity, and persistent inability to concentrate.  The above audiological findings show Level I hearing acuity in the right ear under Table VI.  Because the Veteran's left ear hearing is not service-connected, he is designated as having Level I hearing acuity in the left ear under 38 C.F.R. § 4.85(f).  Under Table VII, these findings do not warrant a compensable rating.  No exceptional pattern of hearing impairment was shown.

A September 2015 VA medical record notes that the Veteran reported progressive decreased hearing and tinnitus for many years, and that he has increased difficulty understanding speech.  

The November 2015 VA examination report shows puretone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
45
45
65
55

The puretone threshold average was 52.5 decibels in the right ear.  The Maryland CNC speech discrimination test revealed speech recognition ability of 88 percent in the right ear.  In terms of functional impairment, the Veteran reported that his hearing loss results in poor social interactions, difficulty following instructions, frustration and anxiety, difficulty hearing in groups or in noisy environments, and reduced social activity.  The above audiological findings show Level II hearing acuity in the right ear under Table VI.  Because the Veteran's left ear hearing is not service-connected, he is designated as having Level I hearing acuity in the left ear under 38 C.F.R. § 4.85(f).  Under Table VII, these findings do not warrant a compensable rating.  No exceptional pattern of hearing impairment was shown.

The Board acknowledges the contentions put forth by the Veteran regarding the impact his service-connected right ear hearing loss has on his ability to function.  Specifically, the Veteran has reported poor social interactions, difficulty following instructions, persistent sleep problems, frustration and anxiety, difficulty hearing in groups or in noisy environments, interference with enjoyment of the television and the radio, reduced social activity, and persistent inability to concentrate.  However, as noted previously, because disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to assign.  Lendenmann, 3 Vet. App. 345; 38 C.F.R. § 4.85, Tables VI, VIA, and VII, Diagnostic Code 6100.  Therefore, when applying the audiological examination test results, the Board is compelled to conclude that the preponderance of the evidence is against granting entitlement to a compensable disability rating.  There is no competent evidence of record to refute the examination findings.

The Board has considered the doctrine of reasonable doubt.  However, as the preponderance of the evidence is against this claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Therefore, entitlement to an initial compensable disability rating for bilateral hearing loss is not warranted during any portion of this appeal.

D.  Tinnitus

The Veteran has claimed entitlement to an initial rating in excess of 10 percent for tinnitus.  This rating is effective from May 26, 2009, and is assigned pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6260 (2015).

An August 2009 VA medical record notes that the Veteran was being seen for a significant increase in tinnitus during the last months, and that he was fitted for a tinnitus masker.

In a May 2010 personal statement, the Veteran contends that his tinnitus is getting worse and is in both ears.  He reported that he was issued hearing aids last January 2010 and that he has been issued a tinnitus masker.

A September 2012 VA medical record reflects that the Veteran reported constant bilateral high-frequency tinnitus that interferes in his daily activities.

A February 2014 record notes that the Veteran reported that his tinnitus had worsened in the past year following his receipt of an injection.                                                                                                                                                                                                         

Another February 2014 VA medical record notes that the Veteran perceived that his left ear hearing aid tinnitus masker was weak, so it was reprogrammed.   

A September 2015 VA medical record notes that the Veteran reported progressive decreased hearing and tinnitus for many years, and that he has increased difficulty understanding speech.  

The November 2015 VA examination report notes that the Veteran reported that his tinnitus causes an inability to concentrate and interferes with his sleeping hours, making him feel restless and irritable.

As noted above, tinnitus is evaluated under Diagnostic Code 6260, which was revised effective June 13, 2003, to clarify existing VA practice that only a single 10 percent evaluation is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head.  38 C.F.R. § 4.87, Diagnostic Code 6260, note 2 (2015).

Prior to that date, recurrent tinnitus was also rated 10 percent disabling, which was the highest schedular rating assignable.  A note following the former regulation provided:

A separate evaluation for tinnitus may be combined with an evaluation under diagnostic codes 6100, 6200, 6204, or other diagnostic code, except when tinnitus supports an evaluation under one of those diagnostic codes.

38 C.F.R. § 4.87, Diagnostic Code 6260 (2002).

The changes to Diagnostic Code 6260 were interpretive only; they merely codified VA's practice of assigning only a single 10 percent evaluation for tinnitus, even where the sound is perceived in both ears.  In other words, VA's comments merely explained or clarified the Department's intent in providing a single 10 percent disability rating under Diagnostic Code 6260.  In fact, the proposed amendment explicitly stated that no substantive change was involved.  See 67 Fed. Reg. 59,033 (September 19, 2002).

The Court challenged the Board's understanding of the July 2003 amendment as being merely interpretive in Smith v. Nicholson, 19 Vet. App. 63 (2005).  In that case, the Court reversed a Board decision that found that, under pre-June 2003 regulations, no more than a single 10-percent rating could be provided for tinnitus, whether perceived as bilateral or unilateral.  The Court held that pre-1999 and pre-June 13, 2003, versions of Diagnostic Code 6260 required that VA assign dual 10-percent ratings for "bilateral" tinnitus where it was perceived as affecting both ears.

VA appealed the Court's decision in Smith to the United States Court of Appeals for the Federal Circuit (Federal Circuit).  The Federal Circuit reversed the Veterans Court's decision in Smith, and affirmed VA's long-standing interpretation of Diagnostic Code 6260 as authorizing only a single 10-percent rating for tinnitus, whether perceived as unilateral or bilateral.  Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).  Citing Supreme Court precedent, the Federal Circuit explained that an agency's interpretation of its own regulations was entitled to substantial deference by the courts as long as that interpretation was not plainly erroneous or inconsistent with the regulations.  Id.  Finding that there was a lack of evidence in the record suggesting that VA's interpretation of Diagnostic Code 6260 was plainly erroneous or inconsistent with the regulations, the Federal Circuit concluded that the Court erred in not deferring to VA's interpretation.  

In the case currently on appeal, the Board notes that the RO assigned the Veteran a 10 percent evaluation for his service-connected tinnitus.  As clearly stated above, Diagnostic Code 6260 assigns only a single evaluation for recurrent tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head.  38 C.F.R. § 4.87, Diagnostic Code 6260, note 2 (2015).  Therefore, the Veteran cannot be assigned an evaluation in excess of 10 percent for tinnitus that is particularly severe or that has increased in severity, or for tinnitus that is in both ears.

E.  Extraschedular Evaluations

In reaching these conclusions, the Board also has considered whether the Veteran is entitled to an increased level of compensation for the disabilities at issue on an extraschedular basis.  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1) (2015); see also Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected low back disability, right leg L5 radiculopathy, right ear hearing loss, and tinnitus are inadequate.  A comparison between the level of severity and symptomatology of the Veteran's disabilities with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.  

Specifically, the Board finds that the rating criteria for the Veteran's service-connected low back disability and associated radiculopathy adequately contemplate the level of impairment that is demonstrated in the evidence of record.  The Veteran contends that his low back disability and radiculopathy impact his ability to walk, sit, stand, lift, carry, climb, and bend for which he requires the use of assistive devices including a TENS unit, corset, and a cane.  He further contends that his back disability causes mental distress and affects his sleep.  The diagnostic codes in the rating schedule corresponding to disabilities of the back provide disability ratings on the basis of limitation of motion, ankylosis, and neurologic manifestations.  For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased, or abnormal excursion, strength, speed, coordination, or endurance.  38 C.F.R. § 4.40; Mitchell, supra.  For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight bearing.  38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37.  The Veteran's statements regarding his physical restrictions pertain to functional limitations that are contemplated by the governing diagnostic code criteria and corresponding regulations.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45.  The inability to accomplish a task, such as those described above is not a "symptom" set forth in any portion of the Rating Schedule, yet it is a result of the same symptoms of pain, painful motion, and limitation of motion that are set forth.  Thus, the Veteran's requirement of a cane for assistance in regard to the disturbance of locomotion caused by his back disability and radiculopathy is a result contemplated by the rating criteria as it is based on the same symptomatology.  Similarly, the Veteran's requirement of a TENS unit and corset to treat his pain on movement is a result contemplated by the rating criteria as it is based on the same symptomatology.  Accordingly, the Veteran's reported symptoms, difficulties performing certain tasks, and use of assistive devices are not exceptional or unusual features of his disability.  Also, as noted above, there is a separate pending claim in regard to the Veteran's contention that his low back disability and associated radiculopathy cause mental distress and affect his sleep. 

In regard to hearing loss and tinnitus, the Veteran contends that he has a problem hearing from his right side so he has to turn his face to compensate to be able to understand the conversation.  He contends that he has difficulty understanding when more than one person speaks.  He complains of poor social interactions, difficulty following instructions, persistent sleep problems, frustration and anxiety, difficulty hearing in groups or in noisy environments, interference with enjoyment of the television and the radio, reduced social activity, and persistent inability to concentrate.  Hearing loss is expressly contemplated by the rating schedule, which evaluates puretone threshold average and speech discrimination (the ability to distinguish between sounds and voices).  38 C.F.R. § 4.85, Diagnostic Code 6100.  The decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability, as indicated by the regulatory history of 38 C.F.R. §§ 4.85 and 4.86.  In this regard, the rating criteria for hearing loss were last revised effective June 10, 1999.  See 64 Fed. Reg. 25,206 (May 11, 1999).  In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids.  VHA found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment.  The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA.  The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting.  See Schedule for Rating Disabilities; Diseases of the Ear and Other Sense Organs, 59 Fed. Reg. 17,295 (April 12, 1994).  Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria.  Therefore, the Veteran's struggle to hear and comprehend verbal conversations and other noises is a factor contemplated in the regulations and rating criteria as defined.  Accordingly, the Board determines that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule.  Also, as noted above, there is a separate pending claim in regard to the Veteran's contention that his hearing loss and tinnitus cause mental distress and affect his sleep. 

As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends.  The Board has determined that the available schedular evaluations for the service-connected low back disability, right leg L5 radiculopathy, right ear hearing loss, and tinnitus in this claim are adequate.  The Board, therefore, has determined that referral of any of these claims for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.

The Board notes that 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 of the effects of the service-connected disabilities that the Veteran has experienced.  However, in this case, 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.  

The Board has also considered whether a claim for a total disability rating based on individual unemployability (TDIU) has been raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Entitlement to a TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  In this case, the Veteran does not contend and there is no evidence that suggests that his low back disability with associated radiculopathy, hearing loss, and tinnitus cumulatively or individually render him unable to obtain or sustain gainful employment.  Thus, the Board finds that a claim for TDIU has neither been raised by the Veteran nor by the record in regard to the rating issue before the Board.  


ORDER

Entitlement to an increased evaluation for a service-connected low back disability, currently evaluated as 40 percent disabling, is denied.  

Entitlement to an increased evaluation for right leg L5 radiculopathy, currently evaluated as 20 percent disabling, is denied.  

Entitlement to an initial compensable evaluation for service-connected right ear hearing loss is denied.

Entitlement to an initial evaluation in excess of 10 percent for tinnitus is denied.  




REMAND

I.  Higher Initial Rating

The Veteran has also claimed entitlement to an initial rating in excess of 20 percent for right shoulder impingement syndrome.  Service connection for this disability was established in a February 2009 rating decision.  The 20 percent rating is assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2015).  This rating is effective August 21, 2002.  

Diagnostic Code 5201 compensates limitation of motion of the arm, and its ratings depend, in part, on whether the major (dominant) extremity or the minor (non-dominant) extremity is being rated.  In the case at hand, the Veteran is right-handed, and the disability at issue affects his right shoulder.  Therefore, the criteria that apply to the major extremity are applicable.  With respect to the major extremity, Diagnostic Code 5201 assigns a 20 percent rating for limitation of motion at shoulder level.  It assigns a 30 percent rating for limitation of motion of the arm to midway between the side and the shoulder level.  It assigns a 40 percent rating for limitation of motion of the arm to 25 degrees from the side.  

The Board observes that a new precedential opinion that directly impacts this case was issued by the United States Court of Appeals for Veterans Claims (Court).  In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities.  The final sentence provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint."  The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59.  Also, the Court rejected VA's argument that the final sentence of § 4.59 cannot create a testing requirement because, if it did, absurdity would result.  Specifically, VA contended that, because the upper extremities are not weight-bearing, requiring that all joints be tested in weight-bearing capacity would require veterans with upper extremity joint disabilities to walk on their hands.  The Court responded that whether upper extremities are or can be weight-bearing is a medical question that it is not competent to answer.  The September 2015 VA examination report does not comply with Correia.  Accordingly, the Veteran must be afforded a new VA examination to correct all of the deficiencies noted above.  

II.  Service Connection

The Veteran has also claimed entitlement to service connection for a disability of the neck/upper back and for bilateral shoulder numbness.  The Veteran's main theory of entitlement appears to be that these disabilities were incurred secondary to or aggravated by his service-connected low back disability.  The Board finds it necessary, however, to remand this claim in order to obtain an opinion on whether the Veteran's neck/upper back disability is directly related to service, to include an in-service motor vehicle accident.   

The January 2011 VA joints examination report notes that the Veteran reported having neck pain and noted that he had had a car accident on August 13, 1982.  He was assessed as having a muscle strain that was treated with Motrin.  

The Veteran underwent a VA examination in January 2011 for the purpose of obtaining an opinion regarding whether his neck/upper back disability and numbness in the left shoulder was etiologically related to his service-connected low back disability.  Based on review of the record and interview, examination, and diagnostic testing of the Veteran, the examiner determined that the Veteran's cervical myositis and degenerative changes are not related to the lumbar condition.  In providing her opinion, the examiner's rationale was that the cervical disabilities are in a different anatomical and neurological region.  For pertinent evidence, the examiner cited a service treatment record's chronological record of medical care dated August 19, 1982, noting that the Veteran had neck pain and a history of a car accident on August 13, 1982, and that he was assessed as having a muscle strain of the neck that was treated with Motrin.  The portion of the examination report that summarizes the Veteran's specific history notes that the Veteran reported that he had developed recurrent bilateral sharp neck pain with severe tension at the neck from the base of the head down to the middle of the back.  The Veteran reported that he had had multiple medical evaluations during service and was treated with Motrin.  In providing her opinion, the examiner stated that "the degenerative changes were related to the natural aging process and the cervical myositis is a chronic muscle inflammation which could be post traumatic as in a whiplash injury."  [Capitalization omitted.]

The United States Court of Appeals for Veterans Claims (Court) held that the phrases "caused by" and "related to" do not address the aggravation aspect of secondary service connection.  Allen v. Brown, 7 Vet. App. 439, 449 (1995).  Thus, the January 2011 VA examiner did not specifically provide an opinion on aggravation.  Also, given that the Veteran's service records reflect that he was on active duty when this motor vehicle accident occurred, the Board finds it necessary to obtain an opinion with respect to whether it is at least as likely as not that the Veteran's cervical spine disability is related to the in-service neck injury.  The Board will, therefore, remand this claim to obtain such an opinion.  

Also, the Veteran has claimed entitlement to service connection for an acquired psychiatric disability.  He essentially contends that this disability either originated during service or was caused or aggravated by service-connected disabilities.  The Veteran underwent a VA examination in July 2009.  Based on review of the record and interview and examination of the Veteran, the examiner determined that the Veteran does not meet the criteria for a mental disorder.  The examiner noted that the Veteran's signs and symptoms were transient and mild, and were the common response to life stressors.  The record, however, reflects that in an April 2009 statement, the Veteran noted that he is taking anxiety medication.  VA medical records show that the Veteran was taking 5MG of Diazepam daily for anxiety.  In light of the foregoing, the Board finds that the Veteran should undergo another VA psychiatric examination for purposes of determining whether the Veteran has a disability due to service or service connected disability.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for an appropriate VA examination to evaluate the severity of the service connected right shoulder impingement syndrome.  The claims folder must be made available to and reviewed by the examiner.  All indicated studies, including x-rays, should be performed, and all findings should be reported in detail.

The examiner should describe all pertinent symptomatology associated with the Veteran's right shoulder disability.  The examiner should specifically opine as to the frequency of any right shoulder dislocations.

Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examination should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing.  If the shoulder cannot be tested on "weight-bearing," then the examiner must specifically indicate that such testing cannot be done.  

The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups (if the Veteran describes flare-ups).  The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss.  If not feasible to do so to any degree of medical certainty without resort to speculation, then the examiner must provide an explanation for why this is so.

A complete rationale must be provided for all opinions offered.  If an opinion cannot be offered without resort to mere speculation, the examiner should fully discuss why this is the case.

2.  Arrange for the Veteran to undergo an examination by a qualified examiner to determine whether the Veteran has a current neck/upper back disability and bilateral shoulder numbness that was caused by service or service connected disability.  The claims file must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran.  Any tests and studies deemed necessary by the examiner should be conducted.  All findings should be reported in detail.  

(a) The examiner should opine whether it is at least as likely as not (50 percent probability or more) that a current neck/upper back disability and bilateral shoulder numbness were incurred during or was otherwise caused by his military service.  Specifically, please address the January 2011 VA joints examiner's assertion that the Veteran's "cervical myositis is a chronic muscle inflammation which could be post traumatic as in a whiplash injury."  [Capitalization omitted.]  In doing so, please discuss the August 1982 service treatment record noting that the Veteran had been in a car accident on August 13, 1982, at which time he was assessed as having a muscle strain that was treated with Motrin.  

(b)  The examiner should opine whether it is at least as likely as not (50 percent probability or more) that a current neck/upper back disability and bilateral shoulder numbness were caused by OR aggravated by the service connected low back disability or service connected right shoulder disability.  If aggravation is shown, the examiner should quantify the degree of aggravation, if possible.

A complete rationale for any opinion is required.  If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case, e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.  If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion.

3.  Arrange for the Veteran to undergo an examination by a qualified examiner to determine whether the Veteran has an acquired psychiatric disability, claimed as anxiety disorder and sleep disorder that was caused by service or service connected disability.  The claims file must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran.  Any tests and studies deemed necessary by the examiner should be conducted.  All findings should be reported in detail.  

(a) The examiner should opine whether it is at least as likely as not (50 percent probability or more) that an acquired psychiatric disability, claimed as anxiety disorder and sleep disorder were incurred during service or was otherwise caused by his military service.  In so opining, the examiner should note that VA medical records show that the Veteran was taking 5MG of Diazepam daily for anxiety.  

(b) The examiner should opine whether it is at least as likely as not (50 percent probability or more) that an acquired psychiatric disability, claimed as anxiety disorder and sleep disorder was caused by OR aggravated by service connected low back disability, right shoulder disability, right leg radiculopathy, tinnitus, eye disability, hearing loss, or spermatocele.  In so opining, the examiner should note that VA medical records show that the Veteran was taking 5MG of Diazepam daily for anxiety.  If aggravation is shown, the examiner should quantify the degree of aggravation, if possible.

A complete rationale for any opinion is required.  If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case, e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.  If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion.

4.  After the development requested above has been completed, readjudicate the issues on appeal.  If any benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto.  Thereafter, the case should be returned to the Board, if in order.

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 2014).



______________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs