Citation Nr: 18147817 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 17-59 685 DATE: November 6, 2018 ORDER A disability rating greater than 20 percent for low back strain is denied. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran’s low back strain is manifested by forward flexion to 90 degrees and a combined range of motion of 210 degrees, increased pain during flare-ups, and no evidence of favorable ankylosis. 2. Resolving all doubt in the Veteran’s favor, his tinnitus had its onset in active service. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 20 percent for low back strain have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309; VA Training Letter 10-02. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from December 1971 to December 1991. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Increased Rating The Veteran’s low back strain is currently rated 20 percent under 38 C.F.R. § 4.71a, DC 5237. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). This assists in determining, among other things, entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The provisions of 38 C.F.R. § 3.344(a) and (b) provide that, where a Veteran’s schedular rating has been both continuous and stable for five years or more, the rating may be reduced only if the examination upon which the reduction is based is at least as full and complete as the examination used to establish the higher evaluation. A rating that has been in effect for more than 5 years will not be reduced on any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. The rating agency must also take into consideration whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344 (2017). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula provides for assignment of a 20 percent rating where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating requires forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees. The 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. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine at Note (2); see also 38 C.F.R. § 4.71a, Plate V. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance for rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Alternatively, disability involving disc disease may be rated under the Formula for Rating IVDS Based on Incapacitating Episodes. That formula provides a 10 percent disability rating for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. 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. Id. at Note (1). The Court of Appeals for Veterans Claims (Court), in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 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. Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Further, in evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. Additionally, the Court has stated that flare-ups must be factored into an examiner’s assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). During the current appeal period, the Veteran underwent several x-ray examinations which revealed a stable degree of multilevel degenerative disc disease (DDD) and facet arthropathy most severe at the L4-L5 and L5-S1 vertebrae. A VA examination was conducted in February 2017. The prior diagnosis of lumbar strain was continued, with new diagnoses of lumbar DDD and osteoarthritis. Range of motion testing was forward flexion to 90 degrees; extension to 10 degrees; right lateral flexion to 30 degrees; left lateral flexion to 30 degrees; right lateral rotation to 20 degrees; and left lateral rotation to 30 degrees. The examiner found that the limited range of motion itself did not contribute to a functional loss and no pain was noted upon examination. There was no evidence of pain with weight-bearing or objective evidence of localized tenderness or pain on palpation. Passive range of motion testing could not be performed or was medically inappropriate, and there was no evidence of pain in nonweight-bearing. The Veteran was able to perform repetitive use testing with no additional functional loss. He reported that he experienced flare-ups of intermittent low back pain two to three times per month, rated as 10 out of 10 on a pain scale, lasting two to three hours and then slowly easing off. The examiner determined that she was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over time or with flare-ups. Muscle strength and sensory testing results were normal. Reflexes were absent bilaterally. No radiculopathy, ankylosis, IVDS, or neurologic abnormalities were observed. The Veteran reported regular use of a cane, but stated that it was for imbalance and not related to his back condition. X-ray examination revealed grade 1 spondylolisthesis of L4 in relation to L5 and DDD and osteoarthritic changes of the inferior lumbar spine. As regards a functional impact, the Veteran reported that he avoided lifting more than 15 pounds due to onset of his low back pain. He did not claim radiation of lumbar pain, nor numbness or tingling of his lower extremities associated with his lumbar pain. The examiner determined that the absence of reflexes was due to tense muscles during the examination and was not indicative of pathology, especially in the absence of other neurological findings. Further, she stated that lumbar strains were typically temporary and healed with proper treatment. Lumbar strains, in and of themselves, did not progress to lumbar DDD or osteoarthritis. Therefore, she determined that the findings of the current x-ray and the additional diagnoses of lumbar DDD and osteoarthritis were ot considered a progression of the lumbar strain. Additional lay statements of record described increased pain and pain with bending over. The Board notes that the Veteran’s range of motion results would equate to a 10 percent evaluation, as the combined range of motion was 210 degrees. However, the results of one examination is not evidence of sustained improvement. The examiner was unable to determine whether there was additional functional limitation with repeated use or with flare-ups. The Board notes that the Veteran was quite clear when describing his symptoms and limitations, and in recounting the severity, frequency, and duration of his flare-ups. Therefore, despite the examiner’s unwillingness to speculate, the Board finds that there is ample evidence provided by the Veteran himself to evaluate the extent and severity of his low back disability. The only symptom or functional impairment he reported was pain. He described his flare-ups as intermittent low back pain two to three times per month, 10 out of 10 pain, lasting two to three hours and then slowly easing off. Thus, the only additional limitation reported was increased pain. Weakness, fatigability or incoordination were not conveyed. As such, it is clear that the Veteran experienced additional functional limitation during flare-ups due to pain. He also described avoiding lifting more than 15 pounds, as it triggered his back pain. Therefore, that is an additional limitation. The Board finds that a 20 percent evaluation most closely approximates the Veteran’s level of disability. Although he does not meet the range of motion testing requirements for a 20 percent rating, there is no evidence in the record of sustained improvement and he experiences increased functional limitation during flare-ups. Therefore, a 20 percent rating best encompasses the totality of the Veteran’s disability. There is no evidence of favorable ankylosis and at no point during the appeal period is there evidence that forward flexion was limited to 30 degrees or less. As such, a higher evaluation is not warranted. Further, the examiner determined that the additional diagnoses of lumbar DDD and osteoarthritis were not a progression of the Veteran’s low back strain, and are thus not to be considered in determining the proper evaluation of the service connected disability. Also, there is no evidence of radiculopathy or other neurologic abnormalities warranting an additional rating. The absence of reflex response was determined to be due to tense muscles, and not any neurologic pathology, in light of the examination findings. Finally, there is no evidence of IVDS warranting consideration under that rating formula. Therefore, the Board finds that a disability rating in excess of 20 percent is not established. Service Connection To establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 C.F.R. § 3.303. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). In Walker, the Federal Circuit overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as “chronic” in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Fountain v. McDonald, 27 Vet. App. 258 (2015), added tinnitus as an “organic disease of the nervous system” to the list of disabilities explicitly recognized as “chronic” in 38 C.F.R. § 3.309(a). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran’s service treatment records (STRs) do not contain any complaints, symptoms, treatment, or diagnosis of tinnitus. However, there is evidence of hearing loss in service. His military occupational specialties included infantry unit leader, marksmanship instructor, and administrative clerk. Two VA examinations were conducted in conjunction with the Veteran’s claim. At a February 2017 examination, the examiner merely noted that the Veteran had not reported tinnitus. At a September 2017 examination, the Veteran stated that he noticed the onset of tinnitus many years previously. The examiner determined that his tinnitus was less likely as not caused by military noise exposure because there was no documentation of tinnitus during service and post-service. The Veteran stated in his June 2017 Notice of Disagreement that the February 2017 VA examiner had not even asked him whether he had ringing in his ears. He reported that he certainly did have ringing in his ears and hearing loss from his military noise exposure. In his November 2017 Substantive Appeal, the Veteran stated that he has had tinnitus as a recurring problem for many years since noise exposure in service. He noted that his occupations while on active duty exposed him to noise that damaged his hearing and led to the recurrent ringing in his ears. The nature of the Veteran’s duties in service establish that he had military noise exposure. The Board notes that the Veteran is also separately service-connected for bilateral hearing loss. As such, acoustic trauma in service is conceded. A lay person is competent to describe his symptoms of ringing in the ears throughout the years. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). The Board finds that the Veteran’s account of ringing in his ears from service to the present to be credible. The September 2017 VA opinion found that the Veteran’s tinnitus could not be related to service given the report of symptoms well after discharge, without reference to VA policy. VA Training Letter 10-02 states that “The onset may be gradual or sudden, and individuals are often unable to identify when tinnitus began. Tinnitus can be triggered months or years after an underlying cause (such as hearing loss) occurs. Therefore, delayed-onset tinnitus must be considered.” Because the VA examiner did not consider such, it is less probative evidence. Additionally, the evaluation of tinnitus has only recently been done by the military. The Veteran’s STRs do not indicate any testing for tinnitus. Therefore, any post-service medical opinion only has a lack of medical information in service upon which to base a nexus opinion. As such, the most probative evidence of record regarding a connection to military service must be the lay statements of the Veteran, who has contended that he experienced ringing in the ears post-service, but only relatively recently sought diagnosis. Although there is no positive opinion of record, the Veteran has conceded noise exposure, a currently diagnosed bilateral hearing loss disability for VA benefit purposes, and there is competent and credible testimony indicating ongoing tinnitus since service. As such, all reasonable doubt is resolved in the Veteran’s favor, and service connection for tinnitus is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Rachel E. Jensen, Associate Counsel