Citation Nr: 1703608 Decision Date: 02/07/17 Archive Date: 02/15/17 DOCKET NO. 15-45 535 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to an initial disability rating in excess of 40 percent for a lower back disability. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1951 to June 1952 and from October 1962 to November 1962, with additional periods of service in the Air Force Reserves. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction over the Veteran's claims was subsequently transferred to the RO in Manchester, New Hampshire. In a November 2015 rating decision, the RO increased the Veteran's evaluation for his lower back disability from 20 percent to 40 percent. However, the Veteran has not indicated he is satisfied with the rating assigned. As such, the issue remains in appellate status and will be addressed by the Board. In October 2016, the Veteran and his spouse testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing. A transcript of the hearing has been associated with the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is etiologically related to his military service. 2. The Veteran's tinnitus is etiologically related to his military service. 3. The Veteran's lower back disability has been productive of forward flexion of the thoracolumbar spine 30 degrees or less; it has not been productive of unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). 3. The criteria for an initial disability rating in excess of 40 percent for a lower back disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5235-5243 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2016). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2016). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(a), 4.1 (2016). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2016). In initial rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Service connection for bilateral hearing loss and tinnitus At the outset, the Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). As such, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claims. The record shows the Veteran has been diagnosed with bilateral hearing loss and tinnitus. The Veteran served in the Air Force as a propeller mechanic. He has asserted that this specialty involved troubleshooting the engines of large aircraft without any hearing protection. Accordingly, in-service exposure to extreme levels of noise is conceded. The Veteran underwent several audiological examinations during or soon after service. In May 1952, whispered voice and spoken voice tests showed normal hearing in both ears. In November 1952, hearing was noted to be grossly normal. In September 1953, whispered voice and spoken voice tests again showed normal hearing in both ears. In December 1957, the Veteran's puretone thresholds were measured as follows: 12/1957 HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 0 0 LEFT 5 0 0 0 0 In October 1960, the Veteran's puretone thresholds were measured as follows: 10/1960 HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 - 0 LEFT 10 0 0 - 0 An examination conducted in 1962 (the month is illegible) showed puretone thresholds were as follows: 1962 HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 - - LEFT 15 10 5 - - The Veteran was afforded a VA audiological examination in December 2014. Although the examiner diagnosed bilateral hearing loss and tinnitus, he opined that neither condition was related to service. Upon a careful review of the foregoing, the Board finds the evidence is at least in equipoise as to whether the Veteran's bilateral hearing loss and tinnitus were incurred in or are otherwise etiologically related to service. In this regard, the Board notes the Veteran's STRs show a threshold shift in both ears at 500 Hertz, 1000 Hertz, and 2000 Hertz near the time of his separation from his second period of active duty. This threshold shift is consistent with the Veteran's lay statements regarding exposure to extreme noise in service, without hearing protection, and his recollection of the onset of his symptomology, to include hearing loss and ringing in his ears. The Board also notes that although the December 2014 VA examiner found the bilateral hearing loss and tinnitus were unrelated to service, he neglected entirely to address the threshold shift noted above. As such, the Board finds the VA examiner's opinion is entitled to little probative weight. As the Board has found the evidence to be in equipoise, granting of service connection for bilateral hearing loss and tinnitus is in order. Increased initial disability rating for a lower back disability In accordance with 38 C.F.R. §§ 4.1, 4.2 (2016) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability under review. The record shows the Veteran has been diagnosed with severe lumbosacral degenerative disc disease and degenerative joint disease, as well as scoliosis, compression fracture, and multilevel spondylosis. The Veteran's lower back disability is rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). See 38 C.F.R. § 4.71a, DCs 5235-5242 (2016). Under the General Formula, in pertinent part, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. In addition, in determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the Veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board has reviewed the entire record, to include the Veteran's STRs, private treatment records, VA treatment records, and his December 2014 VA examination report. In sum, there is no evidence that the Veteran has had either unfavorable or favorable ankylosis of the thoracolumbar spine at any time during the period of the claim. As such, the Board has determined a rating in excess of 40 percent under the General Formula is not warranted. The Board acknowledges the Veteran's representative's contention, at the October 2016 hearing, that the Veteran's unnatural posture and range of motion measurements met the definition of ankylosis. However, there is no indication in the record that the Veteran's representative had any medical certification or training at the time of the hearing. The Board notes that the medical evidence of record is absent of any diagnosis of ankylosis. In addition, the Veteran's December 2014 VA spine examiner indicated the Veteran did not have ankylosis. As such, regarding this issue, which requires medical expertise, the Board finds the representative's contention is outweighed by the medical evidence. In reaching its decision, the Board has duly considered the benefit-of-the-doubt doctrine. However, the Board has determined that a preponderance of the evidence weighs against the Veteran's claim. As such, the doctrine is inapplicable, and the claim must be denied. The Board notes that consideration has been given to rating the Veteran's lower back disability under 38 C.F.R. § 4.71a, DC 5243, the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, upon a review of the entire record, the Veteran has not been diagnosed with IVDS by any private or VA medical provider. In this regard, it is important for the Veteran to understand that the undersigned has considered all of his statements. The problems he has with his back are clear, but they are the basis for the current 40% evaluation, which, by definition, will cause the Veteran many problems. A 40% evaluation very generally means a 40 percent decrease in the Veterans ability to work. Additional Considerations VA must consider all favorable lay evidence of record. 38 U.S.C.A. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Board has accordingly considered the lay evidence offered by the Veteran, in the form of correspondence to VA and testimony at his October 2016 hearing, in addition to the medical evidence cited above. The Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). However, even affording the Veteran full competence and credibility, the evidence simply does not show entitlement to an initial rating higher than 40 percent for his lower back disability. The Board has considered whether the case should be referred to the Director of Compensation Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disabilities with the established criteria provided in the rating schedule for each disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the Veteran's representative raised the issue of extra-schedular consideration at the October 2016 hearing. The representative and the Veteran detailed symptoms including a stooped posture, interference with walking and sitting, and waking in the night due to pain. However, as noted above, these symptoms, which cause functional loss and affect the Veteran's daily activities, have been considered and incorporated in the Veteran's rating under 38 C.F.R. § 4.71a, DC 5235-5243 for limitation of range of motion. See 38 C.F.R. §§ 4.10, 4.40, 4.45 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995). In sum, the Board has determined the manifestations of the Veteran's lower back disability are contemplated by the schedular criteria. Accordingly, referral of the claim for extra-schedular consideration under 38 C.F.R. § 3.321(b) is not in order. The Board has also considered whether an inferred claim for a total rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU rating when the issue is raised by an assertion or is reasonably indicated by the evidence and is predicated at least in part on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. In this case, the Board notes the Veteran's December 2014 VA examiner found the Veteran's lower back disability significantly impacted his ability to work, which provides the basis of the 40% finding. However, the record shows the Veteran is retired. In addition, at his October 2016 hearing, the Veteran's representative stated that the issue of entitlement to a TDIU was not being raised. Accordingly, the Board has determined that the issue of entitlement to a TDIU has not been raised in this case. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2016), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that the Veteran's service treatment records (STRs), VA treatment records, and private treatment records have been obtained, to the extent they have been identified by the Veteran. The Veteran has also been afforded appropriate VA examinations in relation to his claims. In addition, he testified before the undersigned at a hearing in October 2016. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to further substantiate his claims. The Board is also unaware of any such evidence. ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to an initial disability rating in excess of 40 percent for a lower back disability is denied. JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs