Citation Nr: 1758029	
Decision Date: 12/14/17    Archive Date: 12/28/17

DOCKET NO.  13-12 489	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1.  Entitlement to a disability rating in excess of 10 percent for a back disorder.

2.  Entitlement to a compensable disability rating for hearing loss in the left ear.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

David R. Seaton, Associate Counsel
INTRODUCTION

The Veteran served on active duty from September 1986 to September 1990.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. 

These matters were previously before the Board, and, in September 2016, the Board remanded these matters for further development.  Further development in substantial compliance with the Board's remand instructions has been completed.


FINDINGS OF FACT

1.  Even after taking additional functional impairment into consideration, the Veteran's back disorder did not manifest in forward flexion of 60 degrees or less; a combined range of motion of 120 degrees or less; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 

2.  The hearing acuity in the Veteran's right ear was assigned a hearing level of Level I throughout the period on appeal.
	
3.  The hearing acuity in the Veteran's left ear was shown to be productive of Level I hearing impairment throughout the period on appeal.  


CONCLUSIONS OF LAW

1.  The criteria for a disability rating in excess of 10 percent for a back disorder have not been met.  38 U.S.C. 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2017).

2.  The criteria for a compensable disability rating for hearing loss of the left ear have not been met.  38 U.S.C. 1155 (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist 

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development.  See Shinseki v. Sanders, 129 U.S. 1696 (2009).  Thus, adjudication of his claim at this time is warranted.

As to VA's duty to assist, 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).  Service treatment records, VA treatment records, and private treatment records have been obtained.  Additionally, the Veteran testified at a personal hearing before the Board, and a transcript of the hearing is of record.

The Veteran was also provided with several VA examinations and neither the Veteran nor his representative has objected to the adequacy of any of the examinations conducted during this appeal.  See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). 

The Board notes that these matters were previously remanded in September 2016 in order to provide the Veteran with additional VA examinations.  Additional VA examinations were provided in substantial compliance with the Board's previous remand instructions.
As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  There is no prejudice to the Veteran in adjudicating this appeal, because VA's duties to notify and assist have been met.

Increased Rating

The Veteran contends that he is entitled to increased disability ratings for multiple previously service-connected disabilities.  Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work.  38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.

Back

The Veteran is seeking a rating in excess of 10 percent for a back disorder.  He 
first filed for service connection for a back disability in November 2010, and, in June 2011, the RO granted service connection and assigned a disability rating of 10 percent effective the date the claim was received.  The Veteran appealed the rating that was assigned.

Disability ratings of the lumbar spine are assigned pursuant to the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes and the General Rating Formula for Diseases and Injuries of the Spine.  38 C.F.R. § 4.71a.  Nevertheless, the Formula for Rating IVDS Based on Incapacitating Episodes does not provide an adequate basis for an increased disability rating.  The Veteran was provided multiple VA examinations which did not indicate that he had manifested incapacitating episodes due to IVDS, and the Veteran's treatment records do not contain a diagnosis of incapacitating episodes or a record of physician prescribed bedrest as defined by the rating schedule.  Therefore, the Board shall only consider the General Rating Formula for Diseases and Injuries of the Spine in assigning the Veteran's disability ratings.

Under the General Rating Formula for Diseases and Injuries of the Spine, a disability rating of 10 percent is assigned when the Veteran's disability manifests in the following ways: forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; the 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; or, vertebral body fracture with loss of 50 percent or more of the height.  38 C.F.R. § 3.71a, General Rating Formula for Diseases and Injuries of the Spine.

A disability rating of 20 percent is assigned when the Veteran's back disability manifests in the following ways: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine is 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.  Id.

A disability rating of 40 percent is when the Veteran's back disability manifests in: forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.  38 C.F.R. Id.

A disability rating of 50 percent is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine, and a total disability rating is assigned when there is unfavorable ankylosis of the entire spine.  38 C.F.R. § 3.71a, General Rating Formula for Diseases and Injuries of the Spine.

Ankylosis of the spine has not been raised by the record, because the Veteran has undergone multiple VA examinations which indicate that he does not have spinal ankylosis, and the Veteran's treatment records do not contain a diagnosis of ankylosis or reports of or treatment for periods of a permanent total loss of range of motion of the thoracolumbar spine or the entire spine.  Therefore, the record does not contain an adequate basis to assign the Veteran with a disability rating of 50 percent or a total disability rating.  As such, the Board shall only consider assigning a disability rating of 40 percent based on criteria other than ankylosis of the thoracolumbar spine.

The Board notes that objective neurologic abnormalities associated with spinal diseases are to be evaluated separately under appropriate diagnostic codes.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1).  The Board also notes that, in May 2017, the RO granted service connection for radiculopathy of the lower right extremity associated with his lumbar spine disability and assigned the Veteran disability rating of 10 percent.  The Veteran was provided with his appellate rights should he disagree with the rating assigned, but to date he has not filed a notice of disagreement in response to this rating decision or otherwise challenged the adequacy of these determinations, and, therefore, the Board shall not discuss the Veteran's associated neurological abnormalities any further in conjunction with the evaluation of his back disability.

The Veteran's treatment records indicate that the he has experienced back symptoms throughout the period on appeal including pain and limited range of motion.

The Veteran underwent a VA examination in April 2011 at which he reported experiencing severe chronic pain in his upper and middle back.  The Veteran's forward flexion was to 90 degrees, and his combined range of motion was 211 degrees with pain throughout the full range of motion.  The examiner did not observe muscle spasms or alignment problems of the back.

The Veteran testified at a personal hearing before the Board in July 2016 that his back condition had increased in severity since 2011.  The Veteran stated that his back symptoms included: fatigue and muscle spasms.  Additionally, the Veteran's representative argued that the fact that the Veteran manifested pain throughout the full range of motion entitles him to a disability rating of 40 percent.  See Transcript.

The Veteran underwent another VA examination in February 2017.  The Veteran reported progressive stiffness and less flexibility worse when first getting up after sleeping.  The Veteran also indicated that he had constant aching pain which increased with activities.  The Veteran's forward flexion was to 90 degrees, and his combined range of motion was 220 degrees.  The examiner noted pain on the examination and indicated that it caused functional loss, but the examiner indicated that there was no pain with weight bearing.  Nevertheless, the Veteran did not manifest additional functional loss or loss of range of motion after three repetitions of range of motion testing.  In spite of this, the examiner described the Veteran's additional functional loss in terms of the following range of motion estimates: forward flexion to 80 degrees; and a combined range of motion of 170.  The examiner further described additional functional loss during flare-ups in terms of the following range of motion estimates: forward flexion to 70 degrees; and a combined range of motion of 135 degrees.  The examiner indicated that the Veteran did not manifest guarding, muscle spasm, IVDS, or ankylosis.  The Veteran reported that he used assistive devices including to lumbar support while driving his truck.

Extensive VA treatment records have been reviewed but while they confirm back pain, they do not show back symptoms that were not described on the VA examinations.

The weight of the evidence indicates that the Veteran is not entitled to a disability rating in excess of 10 percent for a back disorder.  In order to meet the criteria for a disability rating in excess of 10 percent the evidence must show the Veteran's forward flexion is functionally limited to 60 degrees or less; that the combined range of his motion is functionally limited to 120 degrees or less; or that muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour.  

Here, the Veteran's forward flexion and combined range of motion was measured multiple times during the period on appeal, but the range of motion demonstrated by the Veteran consistently exceeded the limitations required for a higher rating.  Additionally, the record does establish that the Veteran has either an abnormal gait or an abnormal spinal contour.  Therefore, the criteria for an increased disability rating  for a back disorder have not been met.

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).  Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  38 C.F.R. § 4.40.  Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability.  38 C.F.R. § 4.45.  Even if range of motion was slightly limited by pain however, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  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.  Id.

The Veteran has clearly manifested additional functional loss due to chronic pain and painful flare-ups.  Even taking this into consideration however, the Veteran is not entitled to an increased disability rating for his back disability.  The Board notes that the Veteran's representative has argued that the Veteran should be assigned a disability rating of 40 percent, because the Veteran has manifested pain throughout the entire range of motion.  As previously noted however, pain alone is not sufficient to warrant an increased disability rating, because pain must impact of limit the Veteran's range of motion.  See Mitchell; see also Johnston v. Brown, 10 Vet. App. 80 (1997) (holding when that a musculoskeletal disability rating that has been assigned the maximum disability rating based on limitation of motion precludes further DeLuca analysis).  In this case, the examiner in 2017 considered this question, but estimated that the Veteran's forward flexion was functionally limited to 70 degrees and that his combined range of motion was functionally limited to 135 degrees.  As such, even taking functional limitation into account, the evidence of record clearly establishes that the Veteran did not show the limitation required for a rating in excess of 10 percent.  Therefore, the Veteran's additional functional loss due to pain and painful flare-ups does not provide an adequate basis for an increased rating claim.

Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to a disability rating in excess of 10 percent for a back disorder.  As such, a rating in excess of 10 percent for a back disorder is denied.

Hearing Loss

The Veteran is seeking a compensable rating for his hearing loss of the left ear.  He first filed for service connection in November 2010, and, in June 2011, the RO granted service connection and assigned a noncompensable rating effective the date the claim was received.  The Veteran appealed.

In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies 1,000 cycles per second (Hz), 2,000 Hz, 3,000 Hz and 4,000 Hz.  38 C.F.R. § 4.85.  Speech discrimination scores must be determined using a recording of the Maryland CNC word list.  Id.  See also Handbook of Standard Procedures and Best Practices for Audiology Compensation and Pension Examinations, p. 9.  The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness.  VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a pure tone audiometry test.  The vertical lines in Table VI (in 38 C.F.R. § 4.85 ) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the pure tone decibel loss.

The Veteran's treatment records indicate that the Veteran manifested hearing loss throughout the period on appeal.  

The Veteran underwent a VA examination in March 2011.  The measured pure tone threshold values were as follows in decibels: 


Hertz

500
1000
2000
3000
4000
RIGHT
10
5
10
5
35
LEFT
5
10
5
35
50

The average pure tone threshold in the right ear was 13.75 decibels and 25 decibels in the left ear.  The Veteran's speech recognition score was 94 percent in the right ear and 92 percent in the left ear.  The examiner indicated that the Veteran's hearing caused him difficulty hearing female voices; trouble hearing over the phone; and difficulty with television and movie dialogue.

In November 2015, the Veteran was evaluated for hearing aids.  The Veteran indicated that he seldom had problems hearing voices at work.  The Veteran's hearing of the right ear was within normal limits at frequencies less than 4000 Hz with moderate to severe hearing loss at 4000 Hz.  The Veteran's hearing of the left ear was within normal limits at frequencies less than 3000 Hz and moderate to severe hearing loss from 3000 Hz to 4000 Hz.  The Veteran's speech recognition score was tested, but it is unclear whether the Maryland CNC word list was used.  The Veteran was issued hearing aids in December 2015.  

The Veteran testified at a personal hearing before the Board in July 8, 2016.  The Veteran indicated that he had been recently issued hearing aids, and that his hearing had increased in severity since his most recent VA examination.  See Transcript.

The Veteran underwent a VA examination in February 2017.  The measured pure tone threshold values were as follows in decibels: 


Hertz

500
1000
2000
3000
4000
RIGHT
10
10
15
20
55
LEFT
10
15
20
60
65

The average pure tone threshold in the right ear was 25 decibels and 40 decibels in the left ear.  The Veteran's speech recognition score was 94 percent in the right ear and 96 percent in the left ear.  The examiner indicated that the Veteran's hearing caused a hard time hearing his wife as well as certain tones.

The percentage evaluation assigned for hearing loss is derived by intersecting the vertical column of Table VII (in 38 C.F.R. § 4.85 ) appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity.  For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent.  See 38 C.F.R. § 4.85.  Using Table VI in 38 C.F.R. § 4.85, the pure tone average and speech recognition are combined to give each ear a numeric designation for use on Table VII to determine the correct disability level.  

When, as here, only one ear is service connected for hearing loss, the law allows for compensation for hearing loss as if both ears were service-connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385 unless the non service-connected hearing loss is the result of the Veteran's willful misconduct.  See 38 C.F.R. § 3.383.  

The Board will consider first whether the right ear has a hearing loss under 38 C.F.R. § 3.385.  Here, the Veteran showed hearing loss on his second VA examination as the decibel loss in his right ear was 55 at 4,000 Hz.  However, the left ear is not shown to be ratable at 10 percent.
As such, for rating purposes, the Veteran is assigned a numeric designation of Level I for the right ear that has not been granted service connection (of note, this would be the same, even if the right ear was rated based on the examination results).

At the March 2011 VA examination, the left ear had a pure tone average of 25 dB and a speech recognition score of 92 percent; therefore, the left ear warranted a designation of I.  As discussed above, the Veteran's right ear is assigned a designation of I.  Exceptional hearing was not shown by the examination.  As a result, the percentage evaluation in March 2011 was noncompensable.

At the February 2017 VA examination, the left ear had a pure tone average of 40 dB and a speech recognition score of 96 percent; therefore, the left ear warranted a designation of I.  Again, the Veteran's right ear is assigned a designation of I.  Exceptional hearing was not shown by the examination.  As a result, the percentage evaluation in February 2017 was noncompensable.

VA treatment records were reviewed but do not show the results of any additional audiometric testing. 

The Board has considered whether a higher evaluation for hearing loss is available based on exceptional patterns of hearing impairment under 38 C.F.R. § 4.86. Nevertheless, as the Veteran's pure tone thresholds do not show 55 dB or more at all of the required frequencies or, 30 dB or less at 1000 Hz and 70 dB or more at 2000 Hz, for the either ear on any audiometric test, § 4.86 does not apply.

The Veteran has provided lay reports, in both written statements and oral testimony, of the severity of his hearing loss.  Lay reports describe the Veteran's functional limitations related to hearing.  The Veteran is competent to describe the effects his hearing loss has on his daily functioning, and the Board finds that they are credible.  These descriptions of the Veteran's service-connected hearing loss, however, must be considered in conjunction with the rating criteria.  The VA examination reports included hearing examination and testing and, thus, addressed the functional effects caused by service-connected hearing loss.  The Board emphasizes that disability ratings are derived by a mechanical application of the rating schedule.  See Lendenmann.

The Board appreciates the difficulty that the Veteran's hearing loss causes him, and recognizes his frustration with the testing mechanisms that are employed to measure it.  The schedular rating criteria, however, are clearly laid out in the VA regulations and are consistently administered in all hearing loss cases.  As such, the Board does not have the authority to direct a different hearing test or rating system.

Here, the weight of the evidence fails to demonstrate that the Veteran is entitled to a compensable disability for his hearing loss of the left ear, and his claim is denied.  

TDIU

The Board has also considered whether the issue of entitlement to a total disability rating due to individual unemployability (TDIU) has been raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  The Board finds that TDIU has not been raised by the record, because, in a February 2017 VA examination, the Veteran - although noting that he had to take advantage of the Family and Medical Leave Act four to six times per month - reported that he was currently employed, and he has not specifically alleged that he cannot obtain or maintain substantially gainful employment as a result of either his back disability or his left ear hearing loss.


ORDER

A disability rating in excess of 10 percent for a back disorder is denied.

A compensable disability rating for hearing loss of the left ear is denied.


____________________________________________
MATTHEW W. BLACKWELDER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs