Citation Nr: 18149663 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-25 167 DATE: November 13, 2018 ORDER Service connection for hearing loss in the left ear is denied. Service connection for sleep disturbances is denied. Entitlement to an initial rating in excess of 10 percent for cervical strain is denied. Entitlement to an initial rating in excess of 10 percent for left ankle osteoarthritis with instability is denied. FINDINGS OF FACT 1. The weight of the evidence is against the finding of a current diagnosis of hearing loss in the left ear. 2. The weight of the evidence is against the finding of a current sleep related disability. 3. Even considering his complaints of pain and functional loss, range of motion testing of the Veteran’s cervical spine did not show forward flexion functionally limited to 30 degrees or less, or a combined range of motion of the cervical spine limited to 170 degrees or less; the Veteran’s cervical spine was not shown to be productive of either muscle spasm or guarding severe enough to result in either an abnormal gait or an abnormal spinal contour; ankylosis of the cervical spine was not shown; the Veteran was not prescribed bed rest to treat his cervical spine disability; and no neurologic impairment was shown to have resulted from the Veteran’s cervical spine disability. 4. The Veteran’s left ankle disability has not resulted in marked limitation of motion. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss in the left ear have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. 2. The criteria for service connection for sleep disturbances have not been met. 38 U.S.C. §§ 1131; 38 C.F.R. §§ 3.303, 3.309, 3.310 3. The criteria for a rating in excess of 10 percent for a cervical spine disability have not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.14, 4.71a, Diagnostic Code 5243. 4. The criteria for a disability rating in excess of 10 percent for a left ankle disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5271 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Marine Corps from September 2001 to September 2006. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Hearing Loss The Veteran is seeking service connection for hearing loss in his left ear. He has credibly reported experiencing loud noise exposure during his active service in Afghanistan. Such exposure is supported by the Veteran’s service treatment records (STRs) which note that he was routinely exposed to hazardous noise. While the Board concedes noise exposure in service, it is also noted that his in-service audio examinations revealed no hearing loss. As noted above, the first question to be answered is whether the Veteran has a hearing loss disability in his left ear as defined in the VA regulations. For VA purposes, hearing loss will be considered to be a disability when (1) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or (2) the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or (3) when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R.§3.385. Audiometric testing was conducted in May 2013, which showed: Frequencies 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000Hz Right Ear 10 05 05 10 05 Left Ear 05 10 10 10 15 Speech recognition testing using the Maryland CNC word list showed 100 percent in the right ear and 96 percent in the left ear. The examiner found sensorineural hearing loss (in the frequency range of 6000 Hz or higher frequencies) in the left ear; however, the decibel loss did not reach the threshold level to be considered a disability for VA purposes. Here, the Veteran does not have a disability for hearing loss in his left ear for VA purpose because his auditory thresholds in frequencies in the 500-4000 Hz range are lower than 40 decibels and his Maryland CNC Test score is over 94 percent. Additionally, the decibel loss at three frequencies was not 26 or above. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, because a hearing loss disability was not shown to be present in the Veteran’s left ear, service connection for hearing loss in left ear must be denied. Sleep Disturbances The Veteran is seeking service connection for sleep disturbances. The Veteran’s STRs do not contain complaints, treatments, or diagnosis for sleep disturbances. At his September 2001 entrance physical and September 2006 separation physical, he had normal examinations with no sleep symptoms noted. The Veteran underwent a post-service sleep study in June 2010. The study was inconclusive, with a diagnosis of snoring. The Veteran’s spouse submitted a lay statement in January 2014 indicating the Veteran has issues with sleeping and often tosses and turns in his sleep. While the Veteran contends that he has a sleep disorder, the diagnosis of this condition requires clinical testing and medical expertise, and cannot simply be diagnosed by lay observation alone; and the Veteran is not considered competent (meaning medically qualified by training or experience) to diagnose such disabilities to service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); and 38 C.F.R. § 3.159(a)(2). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, because a sleep disorder disability was not shown to be present, service connection must be denied. Increased Rating Cervical Strain The Veteran filed his service connection claim for cervical strain in September 2010. A May 2013 rating decision granted service connection with an effective date as of September 9, 2010, and the Veteran was assigned an initial 10 percent rating for his cervical strain. In September 2013, the Veteran filed a NOD seeking an increased rating. Cervical spine 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 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. 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 cervical spine disability. A March 2016 VA examiner indicated that the Veteran did not have had IVDS. 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 cervical 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 or Injuries of the Spine, a 10 percent evaluation is warranted with forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees, muscle spasm, guarding, localized tenderness not resulting in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis is present, or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted with forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, combined range of motion of the cervical spine is not greater than 170 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 is present. A 30 percent evaluation is warranted if forward flexion of the cervical spine is 15 degrees or less or there is favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted if there is unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Disease and Injuries of the Spine. Normal ranges of motion of the cervical spine are flexion from 0 to 45 degrees, extension from 0 to 45 degrees, lateral flexion from 0 to 45 degrees, and lateral rotation from 0 to 80 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. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). The Veteran’s clinical records show that he was treated for back/neck pain, which provided the basis for the initial 10 percent rating. A January 2014 lay statement from the Veteran’s spouse noted the Veteran has issues with his neck and back, and there have been several occasions where he has pulled out his back from simple activities like washing his hair or drying his hair. She also observed that the Veteran has difficulty lifting heavy objects and at times has trouble lifting their children. In March 2016, the Veteran was afforded a VA examination. He reported having flare-ups and pain when doing things as simple as turning his head too quickly, drying his hair after showering, or even sleeping. On examination, he demonstrated cervical spine flexion to 45 degrees, extension to 45 degrees, left lateral flexion to 45 degrees, right lateral flexion to 45 degrees, normal left lateral rotation to 80 degrees, and right lateral rotation to 80 degrees. The examiner reported the range of motion measurements were all normal. The examiner indicated there was pain noted on examination, but it did not result in or cause functional loss. The examiner noted there was evidence of pain with weight bearing. The examiner reported that there was no objective evidence of localized tenderness or pain on palpitation of the joint or associated soft tissue of the cervical spine. The examiner indicated that repetitive use testing did not result in any additional loss of function or range of motion. The examiner indicated that the Veteran did not have muscle spasms, localized tenderness, or guarding. He had normal 5/5 strength in his upper extremities with no muscle atrophy. The examiner indicated that the Veteran did not have ankylosis of the spine. Thus, the medical records show that the Veteran did not demonstrate forward flexion that was so functionally limited as to be consistent with a 20 percent rating. There was also no showing that the Veteran had ankylosis of the spine. The medical record does not demonstrate findings consistent with higher evaluations. As such, a rating in excess of 10 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. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). 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.; see also 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). 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 neck pain. The March 2016 VA examiner noted pain on examination, but pain did not further limit the Veteran’s range of motion. In addition, 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, 36-38 (2011). 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 10 percent rating has been assigned based on the Veteran’s limited range of cervical spine motion and neck 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 10 percent based on limitation of motion. While the Veteran reported neck pain, repetitive use testing did not reveal additional limitation that would warrant higher ratings. Overall, the Veteran’s treatment records do not demonstrate any additional functional limitations that would support the assignment of higher ratings. Accordingly, the criteria for a schedular rating in excess of 10 percent for the Veteran’s cervical strain are not met, and the Veteran’s claim is denied. Left Ankle Osteoarthritis with Instability In a May 2013 rating decision, the Veteran was granted service connection and assigned a 10 percent evaluation for his left ankle disability under Diagnostic Code 5271 effective September 9, 2010. The Veteran asserts that he is entitled to a higher rating. Diagnostic Code 5271 evaluates range of motion in the ankle. A 10 percent rating is assigned for moderate limitation of motion. A 20 percent rating is assigned for marked limitation of motion. Ankle dorsiflexion is measured from 0 degrees to 20 degrees; plantar flexion is measured from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. In March 2016, the Veteran was afforded a VA examination. He reported that he had left ankle pain with flare ups at times. On examination, he demonstrated left ankle plantar flexion to 30 (out of 45) degrees and dorsiflexion to 15 (out of 20) degrees, both with pain. The examiner indicated there was evidence of pain with weight bearing and moderate left ankle tenderness. Repetitive use testing did not result in any additional limitation of motion or functional loss. He retained reduced 5/5 left ankle strength with no muscle atrophy. The examiner specifically found that the Veteran did not have ankylosis. The examiner noted left ankle instability and laxity compared with the opposite side based on the Talar Tilt Test. The examiner reported that the Veteran had subjective complaints of pain with prolonged walking and standing at times. Because the rating schedule offers no further guidance on the issue, the Board will rely on Webster’s definitions of the terms used. “Marked” means noticeable, Webster’s II New College Dictionary, 670 (1995). “Moderate” means of average or medium quantity. Id. at 704. Having reviewed the evidence of record, the Board concludes that the Veteran’s left ankle findings are consistent with “moderate” limitation of motion. A finding of “marked” limitations is not appropriate as the Veteran retained half of normal ranges of motion and retained 5/5 strength. Moreover, in no record was the Veteran’s limitation of motion so pronounced as to be noticeable. The Veteran’s left ankle results in some limitations, but this is expected as the Veteran was provided with a compensable rating for moderate limitation of motion of the ankle. The clinical testing and observation of the Veteran’s left ankle does not suggest that his left ankle is so functionally limited that it should be described as marked. 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. See also DeLuca, 8 Vet. App. 202. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Here, while the March 2016 VA examiner indicated that the Veteran had pain with prolonged walking and standing at times, the Veteran nevertheless retained range of motion comparable to a moderate limitation of motion. The evidence simply does not support that the Veteran’s left ankle disability so functionally limits the range of motion in his ankle to support a higher rating. Thus, a greater rating for limitation of motion is not warranted under De Luca. While the Veteran has been shown to experience left ankle pain, the Court of Appeals for Veterans Claims (Court) has held that even if range of motion was slightly limited by 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 v. Shinseki, 25 Vet. App. 32, 36-38 (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. I. at 43; see 38 C.F.R. § 4.40. Here, the Veteran consistently retained range of motion comparable to moderate limitations. To the extent that it is argued that the Veteran’s range of motion is painful and therefore would merit a separate compensable rating under 38 C.F.R. § 4.59, that provision states that it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. However, here, the Veteran is currently assigned the minimum compensable rating based on limitation of motion. As such, 4.59 does not mandate a separate rating. Accordingly, a schedular rating in excess of 10 percent prior for a left ankle disability is not warranted. As such, the claim is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. O'Reilley, Associate Counsel