Citation Nr: 18147934 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-07 663 DATE: November 6, 2018 ORDER Service connection for sciatica associated with service-connected low back disability, including lower extremity numbness, is granted. Service connection for foot flop is denied. A rating in excess of 20 percent for left shoulder disability is denied. REMANDED Entitlement to service connection for bilateral hearing loss disability is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. The Veteran has a diagnosis of sciatica related to service connected low back disability that includes lower extremity numbness. 2. The preponderance of the evidence does not show a diagnosed foot flop disability during the appeal period. 3. During the appeal period, the left shoulder disability involving his dominant (major) extremity was not more nearly manifested by motion midway between side and shoulder level. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sciatica associated with service-connected low back disability, including lower extremity numbness, are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.310(a). 2. The criteria for entitlement to service connection for foot flop are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to a rating in excess of 20 percent for left shoulder disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5200-5203. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1987 to May 1989. The Veteran is service-connected for a low back disability, degenerative disc disease. He filed separate service connection claims for bilateral sciatic pain and numbness of the legs. The Board has recharacterized the claim as service connection for sciatica associated with service-connected low back disability, including lower extremity numbness. Clemmons v. Shinseki, 23 Vet. App. 1 (2009) (when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Except as provided in 38 C.F.R. § 3.300(c), disability which is proximately due to or the result of a service connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). 1. Service connection for sciatica associated with service-connected low back disability, including lower extremity numbness. The Veteran contends that he is entitled to service connection for bilateral sciatic pain and numbness of the legs. The Board finds that the evidence warrants service connection bilateral sciatica with numbness of the legs as there is competent medical showing that this disability is proximately due to service connected low back disability. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.310(a). An August 2013 VA examination report of the lumbar spine reflects complaints of numbness and tingling to the feet. The examiner diagnosed bilateral lower extremity sciatica associated with his service-connected low back disability. In addition, medical records from May 2011, April 2012, September 2013, and June 2017 show that the Veteran has consistently complained of numbness and tingling in his legs. On balance, the weight of the evidence is in favor of the claim. Accordingly, the claim is granted. 2. Service connection for foot flop. The Veteran contends that he has a foot disability, claimed as foot flop. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of foot flop. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). The evidentiary record reflects that the Veteran has not had at any time during the appeal a diagnosis of foot flop. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1131; Degmetich v. Brown, 104 F.3d 1328 (1997). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The medical evidence of record, to include service medical records (STRs), VA medical records, and private medical records provided by the Social Security Administration (SSA), reflect no signs, symptoms, or findings for foot flop. A November 2010 SSA examination reflects normal foot muscle strength and deep tendon reflex on downgoing toes. A July 2011 VA examination report reflects normal feet. There were no findings for abnormal pathology of either foot. Gait was normal and the dorsalis pedis pulse was normal. To the extent that the Veteran believes he has foot flop, he is not competent to diagnose the disability as this is a medical determination that requires knowledge of the neurological system’s disorders and diseases along with an evaluation of relevant objective findings. The diagnosis is not susceptible to lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board recognized that the Veteran is competent to report his symptoms and that the above grant of service connection for sciatica encompasses his abnormal nerve symptoms of the lower extremities including his feet. On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 3. Entitlement to a rating in excess of 20 percent for left shoulder disability. The Veteran contends that his left shoulder disability warrants an evaluation in excess of 20 percent. Although he has not specified why he believes his disability warrants a higher rating, he has consistently stated that his symptoms include limitation of motion, pain, tenderness, numbness, and stiffness, with flare-ups. The Board concludes that the preponderance of the evidence is against a rating in excess of 20 percent for a left shoulder disability. Neither the lay nor the medical evidence show that the Veteran’s symptoms more nearly approximate the criteria for a higher rating. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5201. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation 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. A disability may require re-evaluation in accordance with changes in a veteran’s condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Veteran’s left shoulder (major) disability is rated under Diagnostic Code 5201. Under Diagnostic Code 5201 limitation of motion of the shoulder, major, is rated at 20 percent for limitation of motion to shoulder level; a 30 percent rating is warranted for motion limited to midway between side and shoulder; a 40 percent rating is provided where there is shoulder motion limited to 25 degrees from the side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Normal range of motion of the shoulder is flexion from 0 to 180 degrees, abduction from 0 to 180 degrees, and internal and external rotation from 0 to 90 degrees. 38 C.F.R. § 4.71a, Plate I. During the appeal, the Veteran left shoulder range of motion was better than to midway between side and shoulder. A May 2017 VA examination report shows that left shoulder flexion was 0 to 110 degrees. Abduction was 0 to 110 degrees. Internal rotation and external rotation were both 0 to 70 degrees. There was no additional functional loss or reduced range of motion after three repetitions of testing. Painful motion was noted on examination. However, there was no evidence of pain with weightbearing, localized tenderness or pain on palpation, or crepitus. Muscle testing was 5/5. There was no muscle atrophy or ankylosis. No rotator cuff condition, shoulder instability or dislocation, or labral pathology was suspected. There also was no impairment of the clavicle, scapula, acromioclavicular joint, or sternoclavicular joint suspected. There was no impairment of the humerus conditions. The examiner found that pain, weakness, fatigability, and incoordination did not significantly limit functional ability during flare-ups. Based on the evidence of record, the Board finds that the Veteran’s left shoulder symptomatology does not warrant an evaluation in excess of 20 percent under Diagnostic Code 5201. A higher 30 percent disability rating is warranted when functional equivalent of limitation of shoulder to midway between side and shoulder level. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). To warrant a higher evaluation, the impairment must approximate limitation of shoulder to midway between side and shoulder level. See Deluca and Mitchell, supra; see also Sharp v. Shulkin, 29 Vet. App. 26 (2017) (addressing what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups). Here, on his 2017 VA examination, the Veteran reported daily severe left shoulder pain especially with driving. However, objectively, there was normal muscle strength and no atrophy of disuse. Also, the examiner noted that pain, weakness, fatigability or incoordination do not significantly limit the Veteran’s functional ability during flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 206-07 (1995). Mindful of this, the Board finds that the Veteran’s symptoms as described do not reflect that he has functionally limited motion to midway between side and shoulder level, which is required for a higher schedular rating. Accepting the Veteran’s statements as accurate, even with a flare-up he is not limited midway between side and shoulder level of a length of time that would warrant a higher evaluation. The regulations establish that there should be stabilization of ratings. 38 C.F.R. § 3.344. Infrequent changes in impairment do not warrant a change in the evaluation. The Board accepts the Veteran’s reports of symptoms as competent and credible. However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may believe that he meets the criteria for the next higher disability rating, his complaints along with the medical findings do not meet the schedular requirements for a higher evaluation than assigned, as explained and discussed above. The Board has considered the applicability of other diagnostic codes, but finds that no other diagnostic code provides a basis for a higher or separate rating. As noted above, there are no findings for ankylosis, separation or dislocation of the shoulder, nonunion of the clavicle or scapula, or malunion of the humerus. As limitation of left shoulder motion to midway between side and shoulder level side is not demonstrated or more nearly approximated at any point during the appeal period, a higher rating is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. Because the disability has not met the criteria for a higher evaluation at any time during the appeal period, there is no basis for a staged rating. Hart v. Mansfield, 21 Vet. App. 505 (2007). The weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND 4. Entitlement to service connection for bilateral hearing loss. The Veteran has appealed an August 2013 rating decision that denied his claim for entitlement to service connection for bilateral hearing loss. The Board concludes that further development is required prior to adjudicating the Veteran’s claim. 38 C.F.R. § 19.9. According to a April 2012 VA examination report, the Veteran was diagnosed with bilateral sensorineural hearing loss and the examiner determined that it was at least as likely as not incurred in or caused by active service. However, the Veteran’s hearing loss was not sufficiently severe to meet the threshold for VA compensation purposes. However, since the April 2012 examination, evidence in the record suggests that the Veteran’s hearing has deteriorated. According to an October 2015 VA medical record, the Veteran reported difficulty hearing in most environments. Although the examiner reported that there had not been a decrease in the Veteran’s hearing since the April 2012 examination, the examiner noted that the Veteran’s speech recognition score was 92 percent in the left ear. Further, the Veteran was prescribed hearing aids in November 2015. Given that there is evidence in the record suggesting that the Veteran’s sensorineural hearing loss may have worsened since the April 2012 examination, a remand for a new VA examination to assess the status of the Veteran’s hearing impairment is warranted. 5. Entitlement to service connection for bilateral tinnitus. In addition to appealing the denial of entitlement to service connection for hearing loss, the Veteran has also appealed the denial of entitlement to service connection for tinnitus. The Board concludes that further development is required prior to adjudicating the Veteran’s claim. 38 C.F.R. § 19.9. In this regard, the Board requires a new medical opinion because the April 2012 opinion, upon which the Veteran’s tinnitus claim was denied, is inadequate. Once VA has provided an examination, it is required to provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). According to the April 2012 examination report, the examiner found that the Veteran had tinnitus, but concluded that it was less likely than not related to service because the tinnitus was occasional and occurred only when the Veteran was exposed to loud noise. However, the rationale does not address whether the Veteran’s tinnitus was caused by any in service injury or event. Further, the evidentiary record contains additional evidence that the Veteran’s tinnitus has worsened. According to a September 2015 VA medical record, the Veteran complained of chronic ringing in the ears that was made worse by loud noises. An October 2015 VA medical record shows the Veteran complained of constant tinnitus. Accordingly, the matter must be remanded for a new examination. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to address bilateral sensorineural hearing loss and tinnitus. (a.) Provide current audiometric findings for the purpose of ascertaining whether a hearing loss disability for VA purposes is shown (38 C.F.R. § 3.385). The etiology of the Veteran’s hearing loss has been determined previously and need not be addressed in the new report. (b.) Provide an opinion on whether it is at least as likely as not that the Veteran’s tinnitus was incurred in or is a result of active service, or secondary to hearing loss. Provide a complete rationale for the conclusions reached. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Gillian A. Flynn, Associate Counsel