Citation Nr: 1804030 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-08 957 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 10 percent for a lower back disorder, diagnosed as spondylosis, from November 1, 2010, and in excess of 20 percent from October 8, 2015. 2. Entitlement to a compensable rating for bilateral hearing loss. 3. Entitlement to a rating in excess of 10 percent for tinnitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1986 to October 2010. This matter comes before the Board of Veterans Appeals (Board) on appeal from January 2011 and March 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. Jurisdiction over this appeal is now with the RO in Waco, Texas. The Veteran requested a hearing in this matter; however, she withdrew this request in a letter dated October 2015. FINDINGS OF FACT 1. For the period prior to October 8, 2015, the Veteran's lower back disorder has been characterized by pain and limitation of motion between 60 and 85 degrees. Limitation of motion between 30 and 60 degrees has not been shown. 2. For the period from October 8, 2015, the Veteran's lower back disorder has been characterized by pain and limitation of motion between 30 and 60 degrees. Forward flexion of the thoracolumbar spine to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, have not been shown. 3. The neurological symptoms in the Veteran's right lower extremity have been characterized by normal reflexes, normal muscle function, and normal sensitivity to light touch, as well as no pain, paresthesias, dysesthesias, or numbness in the legs. 4. At his most recent VA examination of record, the Veteran's hearing loss in both ears was characterized by Level I. 5. The 10 percent disability rating currently in effect is the maximum schedular rating for tinnitus. CONCLUSIONS OF LAW 1. For the period prior to October 8, 2015, the criteria for a rating in excess of 10 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. § 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237 (2017). 2. For the period from October 8, 2015, the criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. § 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237 (2017). 3. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 4.85, Diagnostic Code 6100, 4.86 (2017). 4. The criteria for an initial disability rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. § § 1155 , 5107 (2014); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2014) and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by way of letters to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159 (2017). The Board recognizes that in the exams discussed below, the examiner did not measure the Veteran's range of motion of the spine while weight-bearing and in both active and passive motion, per the holding in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). However, the Board finds that remanding the appeal would not be of benefit to the Veteran in this case, as his demonstrated ranges of motion are so far in excess of what is required for an increased rating that these results would plausibly show that an increased rating is warranted. Moreover, the remaining criteria require a showing of ankylosis or numerous incapacitating episodes, which are not shown. As such, the factors addressed Correia are no longer pertinent in addressing the merits of this claim. Therefore, VA has met its duty to assist in this respect. Accordingly, the Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. Hence, the Board is satisfied that the duty to assist was met. 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159(c) (2017). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the above-cited claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2017). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). Where evidence indicates that the degree of disability increased or decreased during appeal period following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10 , 4.40, 4.45 (2017); see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § 4.59 (2017). For the period prior to October 8, 2015, the Veteran is assigned a 10 percent rating for her lumbar spine disability under 38 C.F.R. § 4.71a, DC 5242 (addressing degenerative arthritis of the spine). For the period after October 8, 2015, the Veteran is assigned a 20 percent rating, based on the results of her October 2015 VA examination. Spine Prior to October 8, 2015 38 C.F.R. § 4.71a, DC 5242 applies a general rating that is applicable for most spine disabilities. Under this rating formula, a 20 percent rating is warranted when the evidence shows: * Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; * Combined range of motion of the thoracolumbar spine not greater than 120 degrees; * Muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis; or * Intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months. 38 C.F.R. § 4.71a, DCs 5237, 5242 (2017). A 40 percent rating is warranted when the evidence shows: * Favorable ankylosis of the entire thoracolumbar spine; or * Intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Ankylosis is the "immobility and consolidation of a joint due to disease, injury, or surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). The term "combined range of motion" refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, DC 5242, Note 2 (2017). Additionally, an "incapacitating episode" is "a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, DCs 5237, 5242, Note 1 (2017). Based on the evidence of record, a rating in excess of 10 percent is not warranted prior to October 8, 2015. Specifically, at a VA examination in August 2010, the Veteran complained of stiffness and lower back pain daily, treated with Celebrex. There was also tenderness in the lower lumbar area. However, her examiner noted normal range of motion. At her January 2013 examination, the Veteran complained of pain upon heavy lifting and walking more than two miles. However, she endorsed a range of motion of 70 degrees forward flexion, with pain limiting it to 65 degrees. Her combined range of motion was 190 degrees. Moreover, there was no evidence of intervertebral disk syndrome, nor any indication that the Veteran was prescribed bed rest by a physician. Further, there was no muscle spasm or guarding. These ranges of motion fit within her current rating of 10 percent. Accordingly, a rating in excess of 10 percent is not warranted. In this regard, it is important for the Veteran to understand that the moderate pain and functional limitations she has cited are the basis for the 10 percent finding. See 38 C.F.R. § 4.59 (2017). Spine From October 8, 2015 Based on the evidence of record, a rating in excess of 20 percent is not warranted for the period since October 8, 2105. At her October 2015 VA examination, the Veteran demonstrated forward flexion of 60 degrees. She reported flare-ups after a long day of working, causing lower back pain which radiates down her right leg. However, she endorsed no functional loss, and during flareups, endorsed forward flexion of 45 degrees, which still warrants a rating of 20 percent. Post-repetitive use testing showed pain upon rest after testing. However, there was no additional loss of function or range of motion after three repetitions. The presence of a measurable range of motion throughout the appeal period precludes a finding of ankylosis, which, absent a limitation of flexion to 30 degrees, is necessary for the next highest rating in excess of 20 percent. Further, there is no evidence of record that the Veteran was prescribed bedrest at any point during the appeal period. Accordingly, the Board concludes that a rating in excess of 20 percent for the Veteran's lumbosacral spine disability is not warranted. Neurological Abnormalities When evaluating the extent of a Veteran's spine disability, the Board is required to consider whether a separate evaluation is warranted for any associated neurological abnormality including, but not limited to, bowel or bladder impairment, neurological impairment in the extremities or other such disorders, which are to be evaluated under the appropriate diagnostic code. See 38 C.F.R. § 4.71(a), Note 1 (2017). The Veteran has not endorsed any bowel or bladder impairment. However, the Veteran is presently in receipt of a 10 percent disability rating for neurological symptoms, to include pain and numbness, in her right leg. This rating is granted under 38 C.F.R. § 4.124a, DC 8520, which addresses paralysis of the sciatic nerve. The Board feels that this is the most appropriate diagnostic code. Under this diagnostic code, a 20 percent rating is warranted when the condition is "moderate" in nature. In October 2015, a medical examiner diagnosed the Veteran with mild neuropathy. However, her peripheral nerve reflex in her knees and ankles was normal (2+), she had normal muscle function, and normal sensitivity to light touch. She endorsed no weakness, stiffness, numbness, dysesthesias, or pain in her leg. Accordingly, a November 2015 rating decision awarded the Veteran a 10 percent rating. The Board finds that this rating is warranted. Other Considerations In considering these ratings, the Board has considered the impact of functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). In this case, while the Veteran complains of pain, the additional functional loss caused by the pain is accounted for in her range of motion measurements. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). Put another way, while the Veteran has complained of pain, these complaints are adequately contemplated in the ratings she currently receives. For the foregoing reasons, a 10 percent rating prior to October 8, 2015, and a 20 percent rating from that date, is warranted for the Veteran's lumbar spine spondylosis. Bilateral Hearing Loss The Vet disagrees with the rating she has received for her bilateral hearing loss, which was assigned under 38 C.F.R. § 4.85, DC 6100 (2017). Ratings for hearing loss, which range from noncompensable to 100 percent, are based on an organic impairment of hearing acuity as demonstrated by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (Hz). The degree of disability from service-connected hearing loss is rated based on 11 auditory acuity levels with Level I, representing essentially normal acuity, through level XI, representing profound deafness. See 38 C.F.R. § 4.85 (2017). An alternative rating method may be used when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz ) is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1,000 Hz and 70 decibels or more at 2,000 Hz. 38 C.F.R. § 4.86 (2017). VA will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa based on whichever results in the higher numeral. Id. In hearing loss rating cases, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are conducted without the use of hearing aids. 38 C.F.R. § 4.85(a) (2017). Based on the evidence of record, a compensable rating is not warranted. Specifically, at a VA examination in January 2013, the Veteran stated that she does not hear as well as she used to, due to exposure to gunfire in service. Upon examination, her pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 35 55 50 42.5 LEFT 35 40 55 55 46.25 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear. An exceptional pattern of hearing impairment has not been shown. Based on these values, the Veteran demonstrates Level I hearing loss in both ears. See 38 C.F.R. § 4.85, Table VI (2017). Applying these results to Table VII, a noncompensable rating is for application. Therefore, a compensable rating is not warranted. Tinnitus The Veteran asserts that she is entitled to an initial rating in excess of 10 percent for her service-connected tinnitus. The Board finds that the Veteran has been assigned the maximum 10 percent rating which is the maximum schedular rating available for tinnitus. 38 C.F.R. §4.87, Diagnostic Code 6260 (2017). Further, under Diagnostic Code 6260, there is no provision for assignment of an increased schedular rating or a separate 10 percent evaluation for tinnitus of each ear. Therefore, the Board finds that an initial disability rating in excess for 10 percent for tinnitus is not warranted. The Board has also considered the Veteran's statements that her disabilities are worse than the ratings she currently receives, and that he was fitted for hearing aids during the appeal period. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses, she is not competent to identify a specific level of disability of her service-connected disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's lumbar spine and shoulder disabilities have been provided by the medical personnel who have examined her during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of her relevant symptoms related to the issue on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). In making this conclusion, the Board notes the Veteran's contentions that she has to take off work two to three days a month. However, the Board does not consider this "marked" interference in employment sufficient to warrant an extraschedular rating. Moreover, the Veteran has not pointed to any tangible effect of these conditions on her ability to perform even sedentary employment. In addition, the record does not reflect any hospitalizations for the Veteran's disabilities on appeal. As such, these factors do not merit referral for ratings in excess of those already granted for the periods on appeal. Lastly, a total disability rating based on individual unemployability (TDIU) is not for consideration. The Veteran does not contend, and the evidence does not show, that her service-connected disabilities render her unemployable. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). While the Veteran mentioned an increase in back pain after a long day at work to her October 2015 examiner, and while she mentioned taking approximately two to three days sick leave from work per month, her examiner also noted that her condition does not impact her ability to work. Accordingly, consideration for a TDIU rating is not warranted. ORDER A rating in excess of 10 percent for a lower back disorder, diagnosed as spondylosis, from November 1, 2010, and in excess of 20 percent from October 8, 2015, is denied. A rating in excess of 10 percent for right lower extremity radiculopathy is denied. A compensable rating for bilateral hearing loss is denied. A rating in excess of 10 percent for tinnitus is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs