Citation Nr: 1704875 Decision Date: 02/16/17 Archive Date: 02/24/17 DOCKET NO. 10-23 857 ) ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 40 percent for intervertebral disc syndrome (IVDS) status post laminectomy (back disability). 2. Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel INTRODUCTION The Veteran had active service from December 1976 to November 1986. These matters come before the Board of Veterans' Appeals (the Board) on appeal from May 2008 and December 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. As noted in the Board's April 2015 Remand, the Veteran was scheduled for a videoconference hearing in February 2015 in accordance with his request. Prior to his hearing, in a January 2015 report of information and a February 2015 correspondence, the Veteran stated that would not be attending his scheduled hearing and that he did not wish to have the hearing rescheduled. Accordingly, the Board determined that the Veteran withdrew his hearing request. 38 C.F.R. § 20.704 (e) (2016). In a May 2015 rating decision, the RO assigned a temporary total (100 percent) evaluation pursuant to 38 C.F.R. § 4.30, effective from November 11, 2014, until December 31, 2014, based on surgical convalescence due to his back disability. In July 2016, the Board remanded the Veteran's appeal for additional development and adjudication, and it is now returned to the Board for further appellate consideration. The Board notes that in July 2016, the Board dismissed the Veteran's claims for higher initial ratings for bilateral radiculopathy of the lower extremities because the Veteran withdrew his claims, thus, these issues will not be addressed in conjunction with the Veteran's claim for a higher rating for his back disability. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (1) (2016). The Board further notes that the Veteran indicated in a January 2017 correspondence that he is in agreement with his overall combined rating of 60 percent, to include the 40 percent rating for his back disability. However, the Veteran expressed some confusion in that correspondence and the Veteran's representative subsequently submitted an informal presentation hearing contending that a higher rating for his back disability is warranted. Therefore, as it is not clear whether the Veteran wished to withdraw his pending appeal, the Board will proceed to the merits of the case. See Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011) ("[W]ithdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant."). FINDINGS OF FACT 1. Symptoms of the Veteran's lumbar spine disability have not included or more nearly approximated ankylosis or incapacitating episodes due to intervertebral disc syndrome. 2. The Veteran has at worst level I hearing loss in the right ear. 3. The Veteran has at worst level I hearing loss in the left ear. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 40 percent for lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.20, 4.27, 4.71a, Diagnostic Code (DC) 5242, 5243 (2016). 2. The criteria for an initial compensable rating for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code (DC) 6100 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Generally, VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). In February 2008 and March 2009, the Veteran was sent letters that fully addressed all notice elements and was issued prior to the initial RO decisions in this matter. Thus, the Board finds the duty to notify has been met and no further development is required with respect to the duty to notify. In addition, as to the claim for an initial compensable rating for hearing loss, this claim arises from the Veteran's disagreement with the initial rating assigned in connection with the grant of service connection for this disability. Where an underlying claim for service connection has been granted and there is disagreement as to such "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007). Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records, pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service VA treatment records, adequate VA examination reports, and private treatment records. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Moreover, his statements in support of the claims are of record. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Analysis Disability ratings are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In cases, where 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. In such cases, staged ratings are appropriate when the factual findings show distinct time periods where the service- connected disability exhibits symptoms that would warrant different ratings for each such distinct time period. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). I. Increased rating for back disability The Veteran's lumbar spine disability is rated as 40 percent disabling under 38 C.F.R. § 4.71a, DC 5243, applicable to intervertebral disc syndrome (IVDS). IVDS is rated either under the general rating formula or under the Formula for Rating IVDS based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the general rating formula, a 40 percent rating is warranted where forward flexion of the thoracolumbar spine 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. The only higher schedular ratings under the general rating formula are 50 percent for unfavorable ankylosis of the entire thoracolumbar spine and 100 percent for ankylosis of the entire spine. In addition, the only higher schedular rating available under the formula for rating IVDS based on incapacitating episodes is a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Under Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a. Note 1 to the Formula for Rating IVDS based on incapacitating episodes defines an incapacitating episode as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The Veteran filed his claim for an increased rating for his back disability in January 2008. A March 2008 VA examination report reflects that the Veteran reported that he worked as a supervisor for RV detailing and that he cannot perform detailing or lift heavy objects. He also indicated that activities of daily living are severely hindered secondary to his spine condition, as he can no longer play sports, perform outdoor activities, go shopping, or play with his grandchildren. The Veteran indicated that he was placed on bedrest as a treatment of his spine condition within the last twelve months for four days and the physician recommended restrictions on working and lifting due to his spine condition within the past twelve months. On physical examination, range of motion of the thoracolumbar spine was flexion to 50 degrees with no objective evidence of pain. There was no additional limitation of motion or loss of function following repetitive use testing. The examiner noted no functional loss and/or functional impairment of the thoracolumbar spine after repetitive motion testing, or upon flare-ups. There were no incapacitating episodes over the twelve months due to IVDS and no ankylosis of the thoracolumbar spine noted. On the August 2012 VA examination, range of motion of the thoracolumbar spine was flexion to 50 degrees with objective evidence of pain at 30 degrees. There was no additional limitation of motion or loss of function following repetitive use testing. The examiner noted functional loss, functional impairment, and/or additional limitation of motion of the thoracolumbar spine after repetitive motion testing, consisting of less movement than normal and pain on movement. Guarding and/or muscle spasm was present, which did not result in abnormal gait or spinal contour. There were no incapacitating episodes over the twelve months due to IVDS and no ankylosis of the thoracolumbar spine noted. The Veteran reported that his low back and bilateral leg pain limits the distance he can walk/stand and interferes with his detailing job in an RV business. On the September 2015 VA examination, the Veteran reported that he underwent back surgery in November 2014 and resumed work in December 2014. Range of motion of the thoracolumbar spine was flexion to 75 degrees without any noted pain. There was no additional limitation of motion or loss of function following repetitive use testing. The examiner noted no functional loss and/or functional impairment of the thoracolumbar spine after repetitive motion testing, or upon flare-ups. There were no incapacitating episodes over the 12 months due to IVDS and no ankylosis of the thoracolumbar spine noted. The examiner concluded that the Veteran's back disability did not impact his ability to work. The Veteran is in receipt of 40 percent for his back disability, however, the private, VA treatment records, and VA examination reports do not indicate that there was unfavorable ankylosis of the entire thoracolumbar spine or the entire spine, which is required for the next higher rating. Rather, these documents contain either specific findings of no ankylosis or findings reflecting that there is no ankylosis. The lay statements similarly do not indicate that there has been ankylosis. Moreover, while VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, see DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45 (2013), this rule does not apply where, as here, the Veteran is receiving the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). In addition, although the Veteran indicated that he was required to have four days of bed rest from his physician, such does not amount to at least incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past twelve month, and nonetheless, would only warrant a 10 percent rating under the formula for rating IVDS, rather than the 40 percent he is currently receiving under the General rating formula. As the preponderance of the evidence reflects the symptoms of the Veteran's lumbar spine disability do not more nearly approximate the criteria for a rating higher than 40 percent, the benefit of the doubt doctrine is not for application and the claim for an increased rating for lumbar spine disability must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. II. Initial compensable rating for bilateral hearing loss The Veteran currently receives a noncompensable rating for his bilateral hearing loss under 38 C.F.R. § 4.85, DC 6100. The assigned rating for hearing loss is determined by mechanically applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under Diagnostic Code 6100, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination. Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz (cycles per second). To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, DC 6100. As set forth in the regulations, Tables VI, Via, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, DC 6100. Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Alternatively, VA regulations provide that in cases of exceptional hearing loss, when the pure tone thresholds at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (a). The provisions of 38 C.F.R. § 4.86(c) also provide that, when the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever would result in the higher numeral. In addition, 38 C.F.R. § 4.85(c) also provide that, Table VIa will be used when the examiner certifies use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. The December 2009 VA audiological examination reflects that the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ Speech discrimination 1000 2000 3000 4000 Average RIGHT 20 20 25 45 27.5 Not reported LEFT 20 15 20 40 23.75 Not reported Here, as the speech discrimination scores were not provided due to poor reliability, using Table VIa, the December 2009 VA examination revealed level I hearing in the right ear and level I hearing in the left ear. Combining level I hearing for the right ear and level I hearing for the left ear according to Table VII yields a noncompensable rating. A June 2010 VA audiological examination indicates that the Veteran's pure tone thresholds, in decibels, and speech discrimination scores were as follows: HERTZ Speech discrimination 1000 2000 3000 4000 Average RIGHT 20 30 50 65 41.25 92 LEFT 25 10 20 45 25 92 Using Table VI, the June 2010 VA examination revealed level I hearing in the right ear and level I hearing in the left ear. Combining level I hearing for the right ear and level I hearing for the left ear according to Table VII yields a noncompensable rating. A July 2012 VA audiological examination indicates that the Veteran's pure tone thresholds, in decibels, and speech discrimination scores were as follows: HERTZ Speech discrimination 1000 2000 3000 4000 Average RIGHT 20 30 35 50 33.75 92 LEFT 25 10 20 45 25 92 Using Table VI, the July 2012 VA examination revealed level I hearing in the right ear and level I hearing in the left ear. Combining level I hearing for the right ear and level I hearing for the left ear according to Table VII yields a noncompensable rating. A May 2015 audiological report conducted for hearing aid fitting indicates that the Veteran's pure tone thresholds, in decibels, and speech discrimination scores were as follows: HERTZ Speech discrimination 1000 2000 3000 4000 Average RIGHT 20 15 30 45 27.5 80 LEFT 25 20 25 50 30 80 The audiologist indicated that the speech discrimination scores had poor inter-test reliability, thus, using Table VIa, the December 2009 VA examination revealed level I hearing in the right ear and level I hearing in the left ear. Combining level I hearing for the right ear and level I hearing for the left ear according to Table VII yields a noncompensable rating. The Board additionally notes that even if the 80 percent speech discrimination were used, under table VI, right and left hearing loss levels would be consistent with level III hearing, which also combine to yield a noncompensable rating under Table VII. The September 2016 VA audiological examination report indicates that the Veteran's pure tone thresholds, in decibels, and speech discrimination scores were as follows: HERTZ Speech discrimination 1000 2000 3000 4000 Average RIGHT 15 20 30 45 27.5 92 LEFT 20 15 30 40 26.25 94 Using Table VI, the September 2014 VA examination revealed level I hearing in the right ear and level I hearing in the left ear. Combining level I hearing for the right ear and level I hearing for the left ear according to Table VII yields a noncompensable rating. The above evidence reflects that a compensable rating for bilateral hearing loss is not warranted. Here, the VA examination reports as well as the audiological assessment reflect no worse hearing than Level I hearing in the right ear and level I hearing acuity in the left ear. The above-noted findings to Table VII and Table VIa correlated to a noncompensable rating under 38 C.F.R. § 4.85, DC 6100. The Veteran contends that he should be rated at a higher evaluation because he is unable to hear, especially while using his cell-phone or watching television. However, as noted above, the assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). While the Board acknowledges the Veteran's hearing difficulties, however, the certified test results do not meet the specific pure tone thresholds percentages required for a compensable rating for his bilateral hearing loss. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). III. Other considerations The Board must also determine whether to refer a claim to the Under Secretary for Benefits or the Director, Compensation Service, for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321 (b)(1). An extraschedular rating is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the rating criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-16. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116; 38 C.F.R. § 3.321 (b)(1). With regard to the Veteran's back disability, the discussion above reflects that the symptoms are fully contemplated by the applicable rating criteria. The general rating formula for diseases and injuries of the spine indicates that its criteria apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. This broad language in the criteria thus contemplates all of the symptoms even though they are not specifically listed. Moreover, pain is contemplated in the rating criteria for all musculoskeletal disabilities, and therefore it does not need to be identified in each individual code to indicate its inclusion. 38 C.F.R. § 4.59 (2015); see Burton v. Shinseki, 25 Vet.App. 1, 5 (2011) (holding that § 4.59 applies to "joint pain in general" and is not limited to joint pain due to arthritis); see also 38 C.F.R. §§ 4.40 4.45 (2015). The difficulty in walking and standing (i.e., engaging in certain physical activities) are consequences of the symptom of pain and not separate symptoms. As the criteria contemplate the symptoms, the Board need not consider whether the lumbar spine disability causes marked interference with employment for purposes of an extraschedular rating. Regarding the Veteran's hearing loss disability, the rating criteria contemplate impairment of hearing at specific volumes in specific frequencies and the ability to understand language per the word list used to determine speech discrimination. The Veteran's description of the effects of his hearing loss is that he has difficulty hearing. In other words, his hearing loss makes it difficult to hear at specific volumes and to discriminate speech. These manifestations are contemplated by the schedular criteria, as those criteria, though stated in terms of levels of hearing loss measured through audiometric means, clearly compensate veterans based on higher degrees of decreased auditory acuity. In Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), the Federal Circuit held that "[t]he plain language of § 3.321(b)(1) provides for referral for extra-schedular consideration based on the collective impact of multiple disabilities." Here, however, the issue has not been argued by the Veteran or reasonably raised by the evidence of record. The Veteran has not asserted, and the evidence of record does not suggest, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Thus, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria, and the Board will therefore not address this issue further. Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016) ("the Board is required to address whether referral for extraschedular consideration is warranted for a veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities"). Finally, a total disability rating based on individual unemployability (TDIU) is considered an element of rating claims when raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). There is no evidence or argument that the Veteran has been rendered unemployable solely due to his service-connected back disability and/or his bilateral hearing loss. Here, in the September 2015 VA examination, the Veteran reported that he returned to work in December 2014, after taking time off due to his back surgery. As such, the matter of the Veteran's entitlement to a TDIU due to his service-connected back disability and/or his bilateral hearing loss need not be addressed further in conjunction with the current claims for increase. IV. Conclusion For the foregoing reasons, a rating higher than 40 percent for back disability and an initial compensable rating for bilateral hearing loss are not warranted. As the preponderance of the evidence is against any higher or separate ratings for back disability and bilateral hearing loss, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. ORDER Entitlement to a rating in excess of 40 percent for back disability is denied. Entitlement to an initial compensable rating for bilateral hearing loss is denied. ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs