Citation Nr: 18145434 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-33 772 DATE: October 29, 2018 ORDER Service connection for a cervical spine disability is denied. A rating in excess of 20 percent for a lumbar spine disability is denied. A rating in excess of 10 percent for tinnitus is denied. A compensable rating for a lumbar spine scar is denied. REMANDED Service connection for bilateral hearing loss is remanded. FINDINGS OF FACTS 1. The preponderance of the evidence of record is against finding that the Veteran has a current diagnosis of a cervical spine disability. 2. Even considering his complaints of pain and functional loss, the forward flexion in the Veteran’s thoracolumbar spine has not been shown to be functionally limited to 30 degrees or less; ankylosis of the thoracolumbar spine has not been shown; and the Veteran has not been prescribed bed rest to treat his lumbar spine disability. 3. Throughout the entire appeal period, the Veteran has been in receipt of the maximum schedular rating for tinnitus and there is no showing that his tinnitus is unique or unusual. 4. The Veteran’s lumbar spine scar does not result in any limitation of function; and it is not objectively deep, painful, or unstable. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disorder are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. 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; 38 C.F.R. §§ 4.7, 4.10, 4.14, 4.71a, Diagnostic Codes 5242-43. 3. Entitlement to a rating in excess of 10 percent for tinnitus is not warranted. 38 U.S.C. §1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.87, Diagnostic Code 6260 4. The criteria for an initial compensable disability rating for a lumbar spine scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September November 1969 to November 1971. This matter is on appeal from a September 2013 rating decision. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is seeking service connection for a cervical spine disability. However, he has not provided any evidence to establish a current cervical spine disability, or any explanation as to why a chronic cervical spine disability either began during or was otherwise caused by his military service. Service treatment records are silent for a cervical spine condition. The Veteran’s separation examination in 1971 show no abnormalities of the cervical spine. Post service, VA examinations do not show a cervical spine disorder. A July 2014 private treatment note reported no abnormalities regarding the Veteran’s neck. The Board acknowledges that there are several notations in the Veteran’s private treatment records that he underwent neck surgery. However, no information has been provided as to where such a surgery took place, or what it addressed. It is acknowledged that the Veteran underwent several lumbar spine surgeries, but aside from the notation of neck surgery periodically in the records, the Board found no surgical records or any explanation as to what operation was allegedly performed or what it was attempting to correct. Moreover, there is no description of any chronic cervical spine disability in the medical evidence of record, and nothing to suggest a cervical spine disability either began during or was otherwise caused by his military service. As such, even if neck surgery did take place, there is no suggestion that it was to address a service related neck injury or service related cervical spine disability. The Board finds that the weight of the evidence of record demonstrates that the Veteran does not have a current diagnosis of a cervical spine disability or pain in the spine that results in functional impairment. The Veteran has not met his burden of establishing the existence of a current disability. “In the absence of proof of a present disability there can be no valid claim.” See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, the claim for service connection for a cervical spine disability is denied. Increased Rating Lumbar Spine By way of history, the Veteran was granted service connection for a low back disability and assigned a 20 percent rating by a September 2013 rating decision. He filed a Notice of Disagreement in January 2014, asserting a higher rating. Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The evidence of record does not show that the Veteran has experienced any IVDS for his lumbar spine disability or been prescribed bed rest to treat any back problem. Because the prescription of bed rest is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, a rating based on IVDS is not appropriate and the Veteran’s lumbar spine disability will thus 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 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is 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 evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. An August 2013 VA examination report indicated that the Veteran reported flare ups of the lumbar spine. He demonstrated forward flexion in his lumbar spine to 70 degrees, with pain manifesting at 50 degrees. His extension was to 15 degrees with pain manifesting at 10 degrees. After a repetitive use test, his forward flexion was to 60 degrees and extension at 10 degrees. He reported functional loss with less movement than normal, pain on movement, with interference with sitting, standing, and weight bearing. There was no muscle atrophy, and no evidence of ankylosis. His sensory examination revealed normal findings. The Veteran also reported that he can no longer work due to his back because he is unable to bend, lift, and twist. Private treatment records dating July 2014 revealed that x-rays results were unchanged from those taken from April 2013. Compared to a September 2012 x-rays, the physician found stable interbody fusion of the L4-5, with degenerative changes in the lumbar spine. In January 2015, the Veteran continued to complain of lower back pain. He visited Carolinas Center for Advanced Management of Pain and underwent a spinal cord stimulator trial. The Veteran’s clinical records show that he was treated for back pain, but do not describe findings consistent with ankylosis of the entire spine. The Board finds that a rating in excess of 20 percent is not warranted. As demonstrated at the August 2013 VA examination, the Veteran’s forward flexion was limited at 60 degrees and extension at 10 degrees. Additionally, without showing of ankylosis, the Veteran does not show symptoms consistent with a 40 percent evaluation or higher. As such, a rating in excess of 20 percent is not warranted. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. The Veteran has reported back pain. However, he retained lumbar spine range of motion greater than that which equates to a 40 percent rating. That is, painful motion was noted to begin at 50 degrees, and repetitive motion only limited forward flexion to 60 degrees. As such, neither test suggested that the Veteran’s forward flexion in his back was functionally limited to 30 degrees or less. While the Veteran clearly experiences back pain, 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, 25 Vet. App. 32, 36-38. 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. at 43. Here, a compensable 20 percent rating has been assigned based on the Veteran’s limited range of lumbar spine motion and back pain, but the evidence does not show that the Veteran has been so functionally limited by symptoms such as weakness, stiffness, fatigability, and lack of endurance as to support a rating in excess of 20 percent based on limitation of motion. Tinnitus The Veteran is seeking a rating in excess of 10 percent for his tinnitus. He was granted service connection for tinnitus in a September 2013 rating decision, and assigned a 10 percent rating, the highest schedular rating available for tinnitus. Tinnitus is evaluated under Diagnostic Code 6260, which explicitly prohibits a schedular rating in excess of 10 percent for tinnitus whether the tinnitus perceived in just one ear or in both ears. Thus, the claim for a schedular rating in excess of 10 percent for tinnitus, including based on assignment of separate 10 percent ratings for each ear, must be denied as lacking legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). The claim for an increased rating for tinnitus is denied. The Board has also considered whether referral for an extraschedular rating is warranted for the service connected tinnitus. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). At the August 2013 VA examination, the Veteran described his longstanding tinnitus as constant ringing in his ears, which has increased in intensity at times. However, the compensable rating that is assigned is intended to compensate for the ringing the Veteran experiences. The Veteran has not described any symptoms of his tinnitus that are not contemplated by the schedular rating criteria. As such, the Board finds that the Veteran’s tinnitus has not presented such an exceptional disability picture to render the schedular evaluation inadequate. Thus, a referral for extraschedular consideration is not warranted. Lumbar spine scar The Veteran was granted service connection for a lumbar spine scar by an September 2013 rating decision and assigned a noncompensable rating effective August 10, 2013. He disagrees with the initial evaluation and asserts he is entitled to a higher rating. Under Diagnostic Code 7804, a 10 percent rating is assigned for one or two scars that are unstable or painful. A 20 percent rating is assigned for three or four scars that are unstable of painful. A 30 percent rating is assigned for five or more scars that are unstable or painful. Alternatively, a compensable rating may be assigned under several other Diagnostic Codes. For scars that do not affect the head, face or neck, a 10 percent rating may be assigned if a scar is deep and nonlinear and covers an area of at least 6 square inches (39 sq. cm.) (a deep scar is one associated with underlying soft tissue damage) (38 C.F.R. § 4.118, Diagnostic Code 7801); or 2) superficial (meaning that it is not associated with underlying soft tissue damage) and nonlinear and covers an area of at least 144 square inches (929 sq. cm), (38 C.F.R. § 4.118, Diagnostic Code 7802). At an August 2013 VA examination, it was noted that the Veteran has a scar on his lumbar spine. However, the scar was neither reported as painful or unstable. The scar was also less than 39 square cm (6 square inches). Then, at his July visit to his private physician for his back condition, the Veteran was noted to have some scar tissue on the right side of his L1-2. There was no indication from the Veteran that the scar resulted in pain or limited motion. The Veteran’s treatment records do not document any complaints or treatment for his lumbar spine scar. Thus, the Veteran’s medical records do not document any deep scars, unstable scars, or painful scars. The Board is sympathetic to the concerns that have been voiced. However, the medical evidence of record contains no evidence showing that the Veteran’s lumbar spine scar results in findings that would warrant the assignment of a compensable schedular rating. As such, the criteria for a compensable rating for the Veteran’s lumbar spine scar have not been met, and the Veteran’s claim is denied. REASONS FOR REMAND The issue of increased rating for bilateral hearing loss is remanded for additional development. While the August 2013 VA audiology testing showed hearing loss at a noncompensable level, the Veteran submitted private audiology testing conducted at Costco in July 2014. Those results are in graphical form, but are clear and the Board may review them. It suggested worsened hearing in the left ear but better hearing in the right ear, when compared to the August 2013 VA audiology results. The private test also failed to provide speech discrimination test results. Given the inconsistent finding, the Board finds that a new VA examination is warranted. The matter is REMANDED for the following action: 1. Schedule the Veteran for a new VA examination to assess the severity of his service connected bilateral hearing loss. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel