Citation Nr: 1753074 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-02 213 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for prostate cancer and residuals thereof. 2. Entitlement to an initial compensable disability rating for bilateral hearing loss. 3. Entitlement to a compensable disability for a cervical spine disability prior to July 6, 2016 and in excess of 10 percent beginning July 6, 2016. 4. Entitlement to a disability rating in excess of 10 percent for a lumbar spine disability to include the left sacroiliac joint. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1970 to November 1979 and from November 1991 to December 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Board remanded these matters for further development in April 2016 and May 2017. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's prostate cancer and residuals thereof were incurred in or caused by his service. 2. Audiometric examinations correspond to no greater than a level II hearing loss for each ear. 3. The preponderance of the evidence shows that the Veteran had forward flexion of the cervical spine greater than 40 degrees and combined range of motion of the cervical spine greater than 335 degrees prior to July 6, 2016. 4. The preponderance of the evidence shows that the Veteran had forward flexion of the cervical spine greater than 30 degrees and combined range of motion of the cervical spine greater than 170 degrees from July 6, 2016 through the present. 5. The preponderance of the evidence shows that the Veteran had greater than 60 degrees forward flexion of the thoracolumbar spine and combined range of motion of the thoracolumbar spine greater than 120 degrees during the period at issue. 6. The preponderance of the evidence is against a finding that the Veteran experienced muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis as a result of his lumbar or cervical spine disabilities. 7. The preponderance of the evidence is against a finding that the Veteran experienced muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height as a result of his cervical spine disability prior to July 6, 2016. 8. The preponderance of the evidence is against a finding that the Veteran experienced incapacitating episodes of Intervertebral Disc Syndrome (IVDS) requiring a prescription for bed rest. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for prostate cancer and residuals thereof have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for an initial compensable disability rating for a bilateral hearing loss disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.383, 4.1, 3.383, 4.85, Diagnostic Code (DC) 6100, 4.86 (2017). 3. The criteria for a compensable disability rating for a cervical spine disability prior to July 6, 2016 and a rating in excess of 10 percent beginning July 6, 2016 have not been met. 38 U.S.C. §§ 1101, 1110, 1113 (2012); 38 C.F.R. §§ 4.3; 4.71a, DCs 5235-5243 (2017). 4. The criteria for a disability rating in excess of 10 percent for a lumbar spine disability to include the left sacroiliac joint have not been met. 38 U.S.C. §§ 1101, 1110, 1113 (2012); 38 C.F.R. §§ 4.3; 4.71a, DCs 5235-5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by a letter in March 2008. See 38 U.S.C. §§ 5102, 5103, 5103A (2014); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Board finds there has been substantial compliance with its April 2016 and May 2017 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.). Entitlement to Service Connection for Prostate cancer and Residuals thereof A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The laws and regulations pertaining to herbicide exposure provide for a presumption of service connection due to exposure to herbicide agents for veterans who have a disease listed in 38 C.F.R. § 3.309(e). See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a). Diseases associated with exposure to herbicide agents, which are listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during the period of service. See 38 C.F.R. § 3.309(e); 38 C.F.R. § 3.307(a)(6). The presumption applies to prostate cancer as long as it manifest to a degree of 10 percent or more at any time after service. See 38 C.F.R. § 3.309(e); 38 C.F.R. § 3.307(a)(6)(ii). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). In this case, the Board finds that a presumption of service connection based on herbicide exposure does not apply. The Board notes that the Veteran does not contend on appeal that his prostate cancer is related to herbicide exposure, and the Veteran does not contend he served in herbicide exposed areas including Vietnam. Furthermore, upon review of the Veteran's service treatment records and service personnel records, the Board finds no evidence of service within Vietnam or other exposure to herbicides. The Veteran contends he is entitled to service connection on a direct basis noting that his Prostate-specific antigen (PSA) levels increased during his second period of active service from November 1991 to December 2004. See, e.g. Veteran's January 2013 Appeal to the Board of Veterans' Appeals. The Veteran asserts that the increase represents an incurrence of early prostate cancer during a period of service and notes that the Veteran's PSA levels continued to rise until he was treated a few years after his active service ended. Therefore, the focus of the Board's analysis in this decision is the Veteran's theory of entitlement based on direct service connection. The Board finds that the first Shedden element is met. The record shows that the Veteran was diagnosed with prostate cancer in 2006 and currently suffers from residuals after treatment including erectile dysfunction and scarring. See, e.g., June 2017 VA prostate examination. Therefore, the Board finds that the Veteran has a current disability. The Board finds that the second Shedden element is met. The Board notes that during the Veteran's service, the Veteran's PSA levels were measured several times. The service treatment records show a rise in PSA levels, which could be associated with an incurrence of prostate cancer. For example, while March 2000 test results from Armstrong Laboratories recorded the Veteran's PSA levels at 2.57 ng/mL, subsequent testing revealed they increased to 3.38 ng/mL by June 2002. Therefore, the Board finds there was an in-service event, which could be related to a diagnosis of prostate cancer after service. However, Board finds that the third Shedden element is not met in this case. The record does not contain competent medical opinion evidence supporting a finding of a nexus between the Veteran's prostate cancer and his service. In contrast, a July 2016 VA prostate examiner provided a negative nexus opinion after examining the Veteran and reviewing the pertinent evidence of record. The examiner noted that the Veteran's service treatment records contained digital rectal and prostate examinations revealing normal results. The examiner noted there was no prostate cancer or abnormality found within the Veteran's period of service, and the examiner noted there was no evidence that the Veteran was exposed to herbicides including Agent Orange. The examiner opined that the Veteran's prostate disability is less likely than not related to military service. However, the Board found the opinion to be inadequate in its May 2017 Remand Order in part because the examiner did not adequately address the rising PSA levels. In a June 2017, the AOJ obtained an addendum opinion from the VA examiner addressing the Board's concerns. The examiner acknowledged the rising PSA levels recorded during the Veteran's service, but the examiner noted they remained in the normal range and did not rise above normal until a few years after the Veteran's active duty service ended. The examiner noted that the Veteran's prostate was examined several times during service by digital examination, and it was found to be free of disease. The examiner opined that the Veteran's prostate cancer was less likely than not incurred in or caused by the Veteran's service. On appeal, neither the Veteran nor the Veteran's representative has contended that the June 2017 examination was inadequate, and they have not identified evidence that would support a finding of a nexus in this case. According, the Board concludes that the preponderance of the evidence is against a finding of a nexus. In light of the above, the Board finds that the benefit of the doubt doctrine is not applicable in this case as the preponderance of the evidence is against a finding that the Veteran's prostate disability and residuals thereof are related to his service. Therefore, the Veteran's claim for entitlement to service connection for prostate cancer and residuals thereof must be denied. Entitlement to an Initial Compensable Disability Rating for Bilateral Hearing Loss General Rating Principles A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating Principles: Bilateral Hearing Loss Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Tables VI, VII. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. Table VI is used to determine the Roman numeric designation, based on test results consisting of puretone thresholds and Maryland CNC test speech discrimination scores. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. See id. Where there is an exceptional pattern of hearing impairment, a rating based on pure tone thresholds alone may be assigned (Table VIA). This alternative method for rating hearing loss disability may be applied if the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz are all at 55 decibels or higher. 38 C.F.R. § 4.86(a). It may also be applied if the puretone threshold at 1000 Hertz is 30 or less and at 2000 Hertz is 70 or more. 38 C.F.R. § 4.86(b). In this case, the numeral will then be elevated to the next higher Roman numeral. See id. When an exceptional pattern applies, the method producing the highest roman numeral should be used. See id. Each ear is to be evaluated separately under this part of the regulations. Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Analysis: Rating Bilateral Hearing Loss During the Veteran's June 2016 VA audiological examination, puretone thresholds in decibels were recorded as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 20 20 40 60 Left 20 25 45 65 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz were 35 decibels in the right ear and 38.75 decibels in the left ear. The speech recognition scores on the Maryland CNC word test were 84 percent for the right ear, and 84 percent for the left ear. Applying the test results of the June 2016 VA audiometric examination to Table VI of the Rating Schedule results in a Roman numeric designation of level II for the right ear, and level II for the left ear. See 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations of II and II to Table VII, the result is a noncompensable rating for the Veteran's bilateral hearing loss disability. See 38 C.F.R. § 4.85, Table VII, DC 6100. The alternative method for rating hearing loss disability for an exceptional pattern of hearing impairment, 38 C.F.R. § 4.86, is not applicable in this case. Earlier VA examinations in the record indicate the Veteran had better hearing with lower average puretone thresholds and higher speech discriminations scores at the time. See, e.g., April 2008 VA Compensation and Pension Exam Report: Audiology. There are no other audiometric test results for the remainder of the appeal period which comply with the requirements of 38 C.F.R. § 4.85 for rating purposes. The Board notes that the record contains additional examinations of the Veteran's hearing throughout the period at issue including tests from private examiners and VA audiological consultations. See, e.g., December 2011 letter and hearing test results from Dr. J.T.G.; November 2009 Audiology Consult from Fresno VAMC. The Board affords the additional examinations from private examiners and other VA treatment providers less probative weight than the VA examiners' assessments. While the VA examiners' noted their testing followed the required Maryland CNC test, records from other sources (to include November 2009 VA treatment record) do not show the Maryland CNC test was used. Moreover, the Board notes the nonconforming tests do not contain puretone threshold results consistent with a compensable rating, and neither the Veteran nor his representative have indicated that further development would lead to results in support of a higher rating. In light of the above, the Board finds that the preponderance of the evidence shows that the Veteran's disability picture for bilateral hearing loss more nearly approximates a noncompensable rating corresponding to no greater than a level II hearing loss for the Veteran's ears. Entitlement to Increased Disability Ratings for the Lumbar and Cervical Spines Rating Principles: The Spine The spine is rated under 38 C.F.R. § 4.71a , DCs 5235-5243 according to a General Rating Formula for Disease and Injuries of the Spine (General Formula) unless DC 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes (IVDS Formula). For purposes of evaluations under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Schedular disability ratings are assigned for the spine from 100 percent to 10 percent according to the formulas as follows: Under the General Formula, a 100 percent rating contemplates unfavorable ankylosis of the entire spine. There is no equivalent rating under the IVDS Formula. Under the IVDS Formula, a 60 percent rating contemplates incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. There is no equivalent rating under the General Formula. Under the General Formula, a 50 percent rating contemplates unfavorable ankylosis of the entire thoracolumbar spine. There is no equivalent rating under the IVDS Formula. Under the General Formula, a 40 percent rating contemplates unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Alternatively, under the IVDS Formula, a 40 percent rating contemplates incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Under the General Formula, a 30 percent rating contemplates forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. There is no equivalent rating under the IVDS Formula. Under the General Formula , a 20 percent rating contemplates forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Alternatively, under the IVDS Formula, a 20 percent rating contemplates incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Under the General Formula, a 10 percent rating contemplates forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. Alternatively, under the IVDS Formula, a 10 percent rating contemplates incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause 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). 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Associated objective neurologic abnormalities are evaluated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a (General Formula, Note 1). Analysis: Rating the Spine The Veteran claims entitlement to a compensable disability for a cervical spine disability prior to July 6, 2016 and in excess of 10 percent beginning July 6, 2016. The Veteran also claims entitlement to a disability rating in excess of 10 percent for a lumbar spine disability to include the left sacroiliac joint, which are evaluated together under 38 C.F.R. § 4.71a , DCs 5235-5243. The Board remanded these matters in May 2017 in part to ensure that the Veteran has been afforded adequate and current VA examinations in regard to these service-connected spine disabilities. The Veteran was afforded a VA examination of his spine in May 2008. The May 2008 spine examiner noted that the Veteran reported significant spasm in the lower lumbar spine and pain in the left lateral neck. The Veteran reported that he is never incapacitated from the pain and that symptoms of spasm only last a few days about once per year. He reported flare-ups of pain in the left lateral neck two to three times a week, which were not incapacitating. While the Veteran reported some sciatica in the past, the Veteran did not have any persistent neurological symptoms at the time. The examiner noted radiographs revealed degenerative disease of the lumbar and cervical spine, which was aggravated by two injuries during the Veteran's second period of active service in 2001 and 2003. However, the Veteran's gait was normal, and he could tandem walk without difficulty. In regard to range of motion, the May 2008 spine examiner noted that the Veteran's cervical spine flexes, extends, and has right and left lateral bending accomplished at 45 degrees with left and right rotatory movements at 80 degrees. There was no spasm or tenderness noted. The Veteran's lumbar spine flexed to 90 degrees, extended to 30 degrees, and had lateral bending and rotational movements accomplished in both directions right and left to 30 degrees. Straight leg raises accomplished to 75 degrees with no sciatica symptoms. Hip flexion was complete at 125 degrees with adduction at 30 degrees bilaterally, adduction 45 degrees with the knee straight. When the knee was bent at the 125 degree angle, knee internal rotation with the hip was 45 degrees, with external rotation of the hip bilaterally at 40 degrees. There were no crepitation noted, and after three repetitions all range of motions were completed without reduction in joint excursion, pain, weakness, fatigability, or loss or coordination. The Veteran was afforded an additional VA examination of his spine in July 2016, which revealed substantially similar findings except in regard to the cervical spine, which was reduced to 30 degrees extension and 40 degrees forward flexion (consistent with the increase to a 10 percent disability rating). The examiner noted that the Veteran's disability had no neurological manifestations including no complete or incomplete paralysis and no IVDS. Pain was treated with steroid injections, and the Veteran did not report flare-ups. The Veteran had no demonstrated localized tenderness, guarding, or muscle spasm of the spine. The examiner noted that the Veteran used a back brace to do yard work. He noted that the Veteran continued to work in the auto part industry. The Veteran was afforded a third VA spine examination in June 2017, which revealed no additional limitations due to flare-ups including upon testing of active and passive range of motion, weight bearing, and non-weight bearing. The Veteran reported he was currently asymptomatic with treatment. See also August 2010 treatment records from Dr. W.K. (noting that the Veteran reported 95-100% relief from epidural steroid injections in the cervical spine lasting weeks. Pain was aggravated by sitting and walking.). Range of motion in the lumbar and cervical spine appeared to be improved and was reported as "normal." However, the Veteran has reported a history of significant spasm of the spine despite having a normal gait and spinal contour, which may still support the continued 10 percent rating considering limitations due to arthritic pain. The Board finds that the preponderance of the evidence shows that the Veteran had forward flexion of the cervical spine greater than 40 degrees and combined range of motion of the cervical spine greater than 335 degrees prior to July 6, 2016. This finding is consistent with the VA examinations noted above, and there is no competent medical evidence of record to the contrary in the record or contention from the Veteran or his representative identifying such evidence. Therefore, the Board concludes that the Veteran's disability picture for the cervical spine did not meet the criteria for a compensable rating based on range of motion prior to July 6, 2016. See 38 C.F.R. § 4.71a , DCs 5235-5243. The Board notes that beginning July 6, 2016, it was factually ascertainable by the July 2016 VA spine examination that the Veteran's range of motion in the cervical spine was reduced to 40 degrees of forward flexion, which is consistent with a 10 percent disability rating. While this indicates the Veteran's condition worsened, the Board finds that the preponderance of the evidence shows that the Veteran had forward flexion of the cervical spine greater than 30 degrees and combined range of motion of the cervical spine greater than 170 degrees from July 6, 2016 through the present. Therefore, the worsening in range of motion not did progress to a level contemplated by a 20 percent rating. See 38 C.F.R. § 4.71a , DCs 5235-5243. This finding is consistent with the VA examinations noted above, and there is no competent medical evidence of record to the contrary in the record or contention from the Veteran or his representative identifying such evidence. Moreover, the July 2017 examination revealed improvement in range of motion to "normal" following treatment including steroid injections. Therefore, the Board concludes that the Veteran's disability picture for the cervical spine more nearly approximated the criteria for a 10 percent rating based on range of motion beginning July 6, 2016. The Board also finds that the preponderance of the evidence shows that the Veteran had greater than 60 degrees forward flexion of the thoracolumbar spine and combined range of motion of the thoracolumbar spine greater than 120 degrees during the period at issue, which is consistent with a 10 percent rating. See 38 C.F.R. § 4.71a , DCs 5235-5243. This finding is consistent with the VA examinations noted above, and there is no competent medical evidence of record to the contrary in the record or contention from the Veteran or his representative identifying such evidence. While the July 2017 examination showed an improvement in range of motion to "normal" with treatment, the record still showed a history of back spasms. Therefore, the Board finds that the Veteran's disability picture for the lumbar spine more nearly approximated the criteria for a 10 percent rating based on range of motion during the entire period at issue. Nevertheless, the Board also considered other applicable criteria aside from range of motion, which could warrant a higher rating for the cervical and lumbar spines. The Board considered alternate criteria under the General Formula for a 20 percent rating. The Board finds that the preponderance of the evidence is against a finding that the Veteran experienced muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis as a result of his lumbar or cervical spine disabilities. This finding is consistent with the VA examinations noted above, and there is no competent medical evidence of record to the contrary in the record or contention from the Veteran or his representative identifying such evidence. Recent examinations indicate the Veteran's spine disability is largely asymptomatic with treatment. Therefore, the Board concludes that the evidence does not support a finding that the Veteran's disability picture for the cervical and lumbar spine more nearly approximated the criteria for a 20 percent rating under the General Formula for the spine at any time. See 38 C.F.R. § 4.71a , DCs 5235-5243. The Board considered alternate criteria under the General Formula for a 10 percent rating. The Board finds that the preponderance of the evidence is against a finding that the Veteran experienced muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height as a result of his cervical spine disability prior to July 6, 2016. These findings are consistent with the VA examinations noted above, and there is no competent medical evidence of record to the contrary in the record or contention from the Veteran or his representative identifying such evidence. While the Veteran reported a history muscle spasm on the during the May 2008 examination, he noted it only lasted a few days and was not incapacitating. Moreover, the symptoms were not confirmed at the time of the examination in regard to the cervical spine. As noted above, the Veteran received significant relief with steroid injections of the cervical spine to the point of being largely asymptomatic. Therefore, the Board concludes that the evidence does not support a finding that the Veteran's disability picture for the cervical spine more nearly approximated the criteria for a 10 percent rating under the General Formula for the spine prior to July 6, 2016. See 38 C.F.R. § 4.71a , DCs 5235-5243. The Board also considered whether a higher rating may be appropriate under the IVDS formula. See May 2017 Board Remand Order. The Board finds that the preponderance of the evidence is against a finding that the Veteran experienced incapacitating episodes of Intervertebral Disc Syndrome requiring a prescription for bed rest. This finding is consistent with the VA examinations noted above, and there is no competent medical evidence of record to the contrary in the record or contention from the Veteran or his representative identifying such evidence. As the Veteran has not been diagnosed with IVDS and has not been prescribed bed rest, the Board finds that the IVDS formula is inapplicable. The Board considered whether the record would support a finding of additional compensable ratings for associated objective neurologic abnormalities evaluated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a (General Formula, Note 1). However, as noted above, the VA examinations did not reveal significant neurological manifestations of the Veteran's spine disabilities, and the Veteran reported he was asymptomatic with treatment. While the Board acknowledges there is some evidence of record of shooting pains and other symptoms that could be neurological manifestations, the Board finds that the longitudinal record including VA examinations and treatment records did not confirm such manifestations occurred with the frequency, duration, and severity contemplated by a compensable rating. Therefore, the Board finds that the preponderance of the evidence is against a finding of additional ratings for neurological manifestations. In light of the above, the Board finds that the Veteran's disability picture for the cervical spine more nearly approximated a noncompensable rating prior to July 6, 2016 and a 10 percent rating beginning July 6, 2016. The Board also finds that the Veteran's disability picture for the lumbar spine and the left sacroiliac joint more nearly approximated a 10 percent rating during the period at issue. Total Disability Based Upon Individual Unemployability In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held, in substance, that every claim for an increased evaluation includes a claim for a total disability rating based on individual unemployability (TDIU) where the Veteran claims that his service-connected disabilities prevent him from working. The Veteran was able to perform work at a convenience store and at an automotive supply store during the period at issue with his current disabilities. See, e.g., June 2017 VA spine examination; February 2010 C&P Examination Note. As the Veteran has not raised the issue of TDIU as a result of his service-connected disabilities, and as the objective evidence does not suggest that he cannot work because of them, the Board concludes that the issue of TDIU has not been raised. ORDER Entitlement to service connection for prostate cancer and residuals thereof is denied. Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. Entitlement to a compensable disability for a cervical spine disability prior to July 6, 2016 and in excess of 10 percent beginning July 6, 2016 is denied. Entitlement to a disability rating in excess of 10 percent for a lumbar spine disability to include the left sacroiliac joint is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs