Citation Nr: 1754430	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  12-03 744	)	DATE
	)
	)

On appeal received from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1. Entitlement to a compensable rating for bilateral hearing loss.

2. Entitlement to a rating in excess of 20 percent for herniated nucleus pulposus L5-S1, post-operative with arthritis.

3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

W.V. Walker, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1956 to May 1976.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Special Processing Unit ("Tiger Team") located at the Regional Office (RO) in Cleveland, Ohio. 

In August 2017, a videoconference hearing was held and the Veteran testified before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing is associated with the Veteran's claims file. 

The issue of entitlement to an increased rating for bilateral lower extremity radiculopathy has been raised by the record in the August 2017 videoconference hearing transcript.  This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017).

In September 2017, the Veteran requested to have the case advanced on the docket based on advanced age of 75 years or more.  The Veteran has submitted sufficient evidence of advanced age; thus, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017); 38 U.S.C. § 7107(a)(2) (2014).

The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.  VA will notify the Veteran if further action is required.



FINDINGS OF FACT

1. The Veteran's right ear hearing loss is manifested by no more than Level II hearing impairment, and the left ear hearing loss is manifested by no more than Level I hearing impairment.

2. For the period prior to March 7, 2017, the Veteran's herniated nucleus pulposus L5-S1, post-operative with arthritis, was characterized by forward flexion to 80 degrees and functional impairment manifested by less movement than normal.

3. For the period starting March 7, 2017, the Veteran's herniated nucleus pulposus L5-S1, post-operative with arthritis, is characterized by forward flexion that is limited to 40 degrees and pain on all motion that is akin to favorable ankylosis. 


CONCLUSIONS OF LAW

1. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2017).

2. For the period prior to March 7, 2017, the criteria for a rating in excess of 20 percent for herniated nucleus pulposus L5-S1, post-operative with arthritis, have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.71a, Diagnostic Code 5237 (2017)

3. For the period starting March 7, 2017, the criteria for a rating in excess of 20 percent for herniated nucleus pulposus L5-S1, post-operative with arthritis, have been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.71a, Diagnostic Code 5237 (2017).




REASONS AND BASES FOR FINDINGS AND CONCLUSION

Increased Ratings Generally

Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is 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 apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7.  The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1995).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.  
 
Pyramiding under different diagnostic codes is to be avoided. 38 C.F.R. § 4.14 (the evaluation of the same disability under various diagnoses is to be avoided).
 
The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007).  

Bilateral Hearing Loss

Disability ratings for service-connected hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations rendered from audiometric evaluations. 38 C.F.R. § 4.85; Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Evaluations of hearing loss are based on the organic impairment of hearing acuity as measured by controlled speech discrimination tests, in conjunction with the average hearing threshold as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. 38 C.F.R. § 4.85.  Evaluations range from noncompensable to 100 percent.

The Rating Schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.  The horizontal rows in Table VI (found in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row that corresponds with the percentage of discrimination and the vertical column corresponding to the puretone decibel loss.

Table VIa is used for determining the hearing impairment level using only the puretone threshold values. 38 C.F.R. § 4.85(c).  Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate or when indicated under the provisions of § 4.86. 

The percentage evaluation is found in Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row that corresponds with the numeric designation for the ear having the better hearing acuity with the vertical column corresponding with the numeric designation level for the ear having the poorer hearing acuity. See 38 C.F.R. § 4.85(e).  

The Veteran contends that he is entitled to an initial compensable rating for his service-connected bilateral ear hearing loss.  The Veteran underwent a VA audiological examination in September 2011.  Puretone thresholds were as follows:




HERTZ


1000
2000
3000
4000
RIGHT
15
55
60
80
LEFT
15
55
70
80

The puretone threshold average was 52.5 in the right ear and 51.25 in the left ear.  Using the Maryland CNC speech recognition test, speech audiometry results revealed a speech recognition ability score of 94 percent in each ear.  Under Table VI of 38 C.F.R. § 4.85, the score for both the right and left ears correlate to a Roman numeral I.  A noncompensable rating is warranted under Diagnostic Code 6100 when these auditory acuity levels are entered into Table VII of 38 C.F.R. § 4.85.  

The examiner noted that the Veteran's hearing loss did not impact ordinary conditions of daily life, including the ability to work.

A second VA audiological test was conducted in March 2017.  Puretone thresholds were as follows:




HERTZ


1000
2000
3000
4000
RIGHT
25
70
75
80
LEFT
20
60
70
75

The puretone threshold average was 62.5 in the right ear and 56.25 in the left ear.  Using the Maryland CNC speech recognition test, speech audiometry results revealed a speech recognition ability score of 94 percent in each ear.  The right ear score correlates to a Roman numeral I and the left ear score correlates to a Roman numeral II under Table VI.  A noncompensable rating is warranted when these auditory acuity levels are entered into Table VII.  


Thus, the evidence demonstrates that the Veteran's bilateral hearing loss does not meet the schedular criteria for a compensable disability rating under Diagnostic Code 6100 at any point during the appeal period.  

At his August 2017 hearing, however, the Veteran raised the issue of extraschedular consideration under 38 C.F.R. § 3.321(b). See August 2017 Hearing Testimony, p. 13.  The United States Court of Appeals for Veterans Claims (Court) has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service connected disability are inadequate. See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) ("[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted").  Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found to be inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization.  Thun, 22 Vet. App. at 116.  Third, if the first two Thun elements have been satisfied, then the case must be referred to the Director for Compensation Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating.  Thun, 22 Vet. App. at 116.  In other words, the first element of Thun compares a veteran's symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate. Yancy, 27 Vet. App. at 494-95.

With respect to the first prong of Thun, the evidence in the present case does not establish such an exceptional disability picture as to render the schedular criteria inadequate.  The schedular rating criteria for rating hearing loss provide for disability ratings based on audiometric evaluations, to include speech discrimination and puretone testing.  Here, all the Veteran's hearing loss symptoms and described hearing impairments are contemplated by the schedular rating criteria.  

The Veteran's hearing loss disability is manifested by difficulty discerning who is speaking when in groups or in the presence of a lot of background noise; difficulty hearing women's voices; and, needing to regularly ask others to repeat themselves. See August 2017 Hearing Transcript, p. 11.  The ability of the Veteran to hear sounds and voices is measured and rated by an audiometric test, as this test measures different frequencies and captures high frequency hearing loss from sources including voices, music, sirens, and certain high pitched sounds.  The ability of the Veteran to understand people and having to ask others to repeat themselves on a regular basis is rated by a speech recognition test-a test that measures conversation comprehension, words, and missed conversations.  The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns, which were not demonstrated in this case, and as measured by both audiometric testing and speech recognition testing.  See Doucette, 28 Vet. App. 366 (holding "that the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech").  

The inherent purpose of the schedular rating criteria is to determine, as far as practicable, the severity of functional impact resulting from a service-connected disability, including any resultant occupational and social impairment, and therefore contemplates the Veteran's difficulties functioning in a social environment due to hearing loss.  Accordingly, the Board finds that the Veteran's reported hearing related difficulties are factors contemplated in the regulations and schedular rating criteria.  See id. (holding that "an inability to hear or understand speech or to hear other sounds in various contexts...are contemplated by the schedular rating criteria"). 

According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extraschedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations."  Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability, or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities present a disability picture not adequately captured by the schedular ratings for those disabilities.  In this case, the Veteran has not asserted, and the evidence of record has not suggested, 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. 

Comparing the Veteran's disability level and symptomatology of the bilateral hearing loss to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate.  There are no additional expressly or reasonably raised issues presented on the record.  Absent any exceptional factors associated with hearing loss, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

Herniated nucleus pulposus L5-S1, post-operative with arthritis

The Veteran's service-connected herniated nucleus pulposus L5-S1, post-operative with arthritis, has been rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237.  Under DC 5237, the back condition is to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine.  

Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or, localized tenderness not resulting in abnormal gait or abnormal spinal contour.

A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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.

A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.

A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.

A 100 percent rating is assigned for unfavorable ankylosis of the entire spine.

The Veteran contends that he is entitled to a rating in excess of 20 percent for his herniated nucleus pulposus L5-S1, post-operative with arthritis, because the current assigned 20 percent rating does not adequately represent the severity of his condition.  The Veteran's back condition has significantly changed over the course of the appeal period; thus, staged ratings have been assigned accordingly. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

For the period prior to March 7, 2017, there is no evidence that indicates that the Veteran's herniated nucleus pulposus L5-S1, post-operative with arthritis, was characterized by forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the thoracolumbar spine.  

The Veteran underwent a VA examination in September 2011.  On range of motion testing, the Veteran's forward flexion was to 80 degrees with no objective evidence of painful motion; extension to 30 degrees with no objective evidence of painful motion; right lateral flexion to at least 30 degrees with no objective evidence of painful motion; left lateral flexion to at least 30 degrees with no objective evidence of painful motion; right lateral rotation to at least 30 degrees with no objective evidence of painful motion; and, left lateral rotation to at least 30 degrees with no objective evidence of painful motion.  The Veteran was able to perform repetitive-use testing with three repetitions without any additional limitation in range of motion following repetitive-use testing.  The examiner did not observe any guarding, muscle spasms, localized tenderness, or pain to palpation.

In a June 2014 radiology report, levoconvex curvature of the lumbar spine without significant lateral subluxation was found. February 2015 VA Treatment Records, p. 2.  The impression was multilevel degenerative disc and joint changes with greatest height loss at the L2-3 and L5-S1 levels.  The Veteran was also seen for back pain in June 2014, November 2014 and December 2014. March 2015 VA Treatment Records (pt. 5), p. 6; March 2015 VA Treatment Records (pt. 4), p. 15; March 2015 VA Treatment Records (pt. 2), p. 16. 

In light of the evidence, the Board finds that there is insufficient evidence to warrant a rating in excess of 20 percent for the period prior to March 7, 2017.  In order to receive a higher evaluation, there must be forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.  The September 2011 examiner noted forward flexion to 80 degrees with no objective evidence of painful motion at any degree, and the examiner also did not note any ankylosis.  The June 2014 radiology report also did not reflect a finding of ankylosis of the thoracolumbar spine, and none of the treatment records from this time indicate that the Veteran's forward flexion was limited to 30 degrees or less.  The pain reported by the Veteran during this period is contemplated by the 20 percent rating.  Thus, the Board concludes that the weight of the evidence preponderates against a finding of entitlement to a rating in excess of 20 percent for herniated nucleus pulposus L5-S1, post-operative with arthritis, for the period prior to March 7, 2017.

For the period starting March 7, 2017, the Board finds that the evidence preponderates in favor of a finding of entitlement to a rating in excess of 20 percent.  The Veteran underwent a second VA examination in March 2017.  On range of motion testing, the Veteran's forward flexion was to 40 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees.  The examiner noted that the Veteran exhibited pain on all motions.  The examiner also observed muscle spasm or guarding, and localized tenderness-none of which resulted in an abnormal gait or spinal contour.  

During the August 2017 videoconference hearing, the Veteran stated that he has a difficult time performing tasks that require him to bend forward, such as changing the sheets. August 2017 Hearing Transcript, p. 6.

The Board finds that the Veteran's disability picture more closely approximates the picture contemplated at the 40 percent rating for the period starting March 7, 2017.  A rating of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine.  As no unfavorable ankylosis has been noted, this rating is not applicable.  However, during the March 7, 2017 VA examination, the examiner noted that the Veteran had forward flexion to 40 degrees and pain on all motions of the thoracolumbar spine.  The Board finds that this level of limitation is akin to favorable ankylosis.  Accordingly, the Board concludes that the weight of the evidence preponderates in favor of a finding of entitlement to a 40 percent rating, and no higher, for herniated nucleus pulposus L5-S1, post-operative with arthritis, for the period starting March 7, 2017.

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette, 28 Vet. App. at 369 (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).


ORDER

A compensable rating for bilateral hearing loss is denied.

A rating in excess of 20 percent for herniated nucleus pulposus L5-S1, post-operative with arthritis, for the period prior to March 7, 2017 is denied.

An increased rating of 40 percent, and no higher, for herniated nucleus pulposus L5-S1, post-operative with arthritis, for the period starting March 7, 2017 is granted.





REMAND

The issue of entitlement to TDIU was raised in the Veteran's testimony during the August 2017 hearing. See August 2017 Hearing Testimony, p. 14.  The Veteran contends that he is unemployable due to his service-connected disabilities.  However, the Veteran does not currently meet the percentage thresholds for schedular TDIU. See 38 C.F.R. § 3.340, 3.341, 4.16(a) (2017).  The Board finds that extraschedular consideration of TDIU is warranted. See 38 C.F.R. § 4.16(b) (2017).  
Accordingly, on remand, the AOJ should obtain a medical opinion that addresses the collective impact of the Veteran's service-connected disabilities on his employability.  After obtaining such an opinion, the claim for TDIU should be referred to VA's Director for Compensation Service for extraschedular consideration.

Ongoing VA medical records should also be obtained. See 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Obtain all updated treatment records, to include any records from the San Antonio VA Medical Center from March 2015 to the present, and associate them with the claims file or virtual record.

2. After all outstanding records have been associated with the claims file, schedule the Veteran for a VA examination by an appropriate examiner.  The ultimate purpose of the examination is to ascertain the collective impact of the Veteran's service-connected disabilities on his ability to work.  If appropriate, any studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner is requested to review all pertinent records associated with the electronic claims file.  

The examiner should elicit and set forth the pertinent facts regarding the Veteran's medical, education and employment history; day-to-day functioning; and, industrial capacity.  The examiner should address the Veteran's current ability to function in an occupational environment.

The examination report should also indicate if there is any form of employment that the Veteran could perform and, if so, what type.  A written copy of the report should be associated with the claims file.

3. After completing the above actions, refer the Veteran's case to VA's Director of Compensation Service for extraschedular consideration of the Veteran's TDIU claim pursuant to 38 C.F.R. § 4.16(b).

4. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's claim should be readjudicated.  If the claim is not granted in full, the Veteran and his representative must be provided a supplemental statement of the case.  An appropriate period of time must be allowed for response.  Thereafter, if indicated, the case must be returned to the Board for an appellate decision.

The Veteran 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).




______________________________________________
A. S. CARACCIOLO 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs