Citation Nr: 18149971 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-41 402 DATE: November 14, 2018 ORDER Entitlement to service connection of left ear hearing loss is denied. Entitlement to an initial rating of 60 percent for postlaminectomy syndrome is granted, for purposes of accrued benefits. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity is denied. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity is denied. Entitlement to an initial compensable rating for left knee strain is denied. Entitlement to an initial compensable rating for right knee strain is denied. Entitlement to an initial compensable rating for right ear hearing loss is denied. FINDINGS OF FACT 1. The Veteran did not have left ear hearing loss prior to his death. 2. From the date of service connection, the Veteran’s postlaminectomy syndrome resulted in intervertebral disc disease with incapacitating episodes of at least 6 weeks in the prior 12 months. 3. For the period on appeal, the Veteran’s left lower extremity radiculopathy was manifested by mild symptoms. 4. For the period on appeal, the Veteran’s right lower extremity radiculopathy was manifested by mild symptoms. 5. The Veteran’s left knee strain did not result in any loss of range of motion or instability; he did not have a diagnosis of left knee arthritis. 6. The Veteran’s right knee strain did not result in any loss of range of motion or instability; he did not have a diagnosis of right knee arthritis. 7. For all periods on appeal, available audiogram results showed right ear hearing loss manifested by hearing impairment no worse than auditory acuity Level I in the right ear. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. 2. The criteria for an initial 60 percent rating for postlaminectomy syndrome were met, for purposes of accrued benefits. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.71a, Diagnostic Codes (DCs) 5235-42, 5243. 3. The criteria for an initial rating in excess of 10 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.124a, DC 8520. 4. The criteria for an initial rating in excess of 10 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.124a, DC 8520. 5. The criteria for an initial compensable rating for left knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.71a, Diagnostic Codes (DCs) 5003, 5256-63. 6. The criteria for an initial compensable rating for right knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.71a, Diagnostic Codes (DCs) 5003, 5256-63. 7. The criteria for a compensable rating for right ear hearing loss were not met 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.85, DC 6100. REFERRED The issues of entitlement to dependency and indemnity compensation (DIC) benefits, survivors pension benefits, and accrued benefits were claimed December 2014 and are referred to the Agency of Original Jurisdiction (AOJ) for adjudication. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2004 to August 2013. The Veteran died in August 2014. The appellant is the Veteran’s surviving spouse who has successfully substituted as appellant on the claims pending at the time of the Veteran’s death. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 1. Entitlement to service connection of left ear hearing loss Prior to his death, the Veteran sought service connection bilateral hearing loss. Service connection of right ear hearing loss was granted in the October 2013 rating decision, and the rating assigned for that disability is addressed below. Service connection of left ear hearing loss was denied and the Veteran appealed that denial. His spouse has substituted on that claim and now seeks service connection for the Veteran’s left ear hearing loss. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies, 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In April 2013, the Veteran was afforded a VA examination in connection with his military medical board evaluation and initial claim for VA benefits. That examination showed audiogram testing with the following puretone thresholds in Hertz: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 15 25 40 LEFT 15 15 15 15 20 Maryland CNC Testing showed speech discrimination scores of 100 percent in the left ear, and 94 percent in the right ear. While that test showed hearing loss of 40 decibels at 4000 Hz, and therefore hearing loss in the right ear within the definition of that term (indeed, that claim was subsequently granted), the claim for left ear hearing loss must be denied because none of the auditory thresholds are 40 decibels or greater, and the Veteran did not have at least three thresholds at 26 decibels or greater in that ear. Further, his speech discrimination score for that ear was greater than 94 percent. As such, he did not meet the criteria for a diagnosis of hearing loss for VA purposes in that ear at that time. The Board has carefully reviewed the available medical records but found no evidence that the Veteran had hearing loss within the statutory definition of that disability prior to his untimely death in August 2014. Therefore, the claim fails the first criteria of service connection, namely a presently diagnosed disability, and must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the disabilities on appeal, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, “[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.” 38 C.F.R. § 4.7. 2. Entitlement to an initial rating in excess of 10 percent for postlaminectomy syndrome The Veteran was in receipt of service connection for postlaminectomy syndrome (referred as low back pain with radiculopathy and chronic pain) with a rating of 10 percent disabling. The Veteran’s postlaminectomy syndrome was rated under diagnostic code 5243, which compensates for intervertebral disc syndrome (IVDS). Under the applicable diagnostic criteria, IVDS is assigned a 10 percent rating with incapacitating episodes having a total duration of at least 1 week, but less than 2 weeks during the prior 12 months. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5243. A 20 percent rating is assigned for IVDS with incapacitating episodes having a total of 2 weeks, but less than 4 weeks in the prior 12 months. Id. A 40 percent rating is assigned for IVDS with incapacitating episodes having a total of 4 weeks but less than 6 weeks in the prior 12 months. Id. Finally, a 60 percent rating is assigned for IVDS with incapacitating episodes of at least 6 weeks in the prior 12 months. Id. Here, the Board finds that a 60 percent rating should be assigned under diagnostic code 5243. At the time of his April 2013 examination, the Veteran was found to have chronic pain post-laminectomy, with implanted spinal stimulator and numerous spinal injections/epidurals. The examiner stated that his course since onset was progressively worse and stated that his pain would continue to be severe and chronic forever. The examiner stated that the Veteran did have IVDS, with flare-ups daily to weekly, lasting more than a month in duration. He stated that those flare-ups of IVDS were severe in nature. As for duration in the past 12 months, the examiner stated that his IVDS of the thoracolumbar region was constant daily with any movement. The Board is satisfied that this examination showed an overall disability picture that more nearly approximates IVDS with incapacitating episodes of at least six weeks in the prior 12 months. Indeed, it was this examination which led to the Veteran’s medical separation from the military. As such, the Board will assign the maximum available rating for IVDS from the date of service connection under Diagnostic Code 5243. The Board does note that in the alternative, diseases of the spine may be rated under Diagnostic Codes 5235-5242, which rate based on limitation of motion or evidence of ankylosis. Under such criteria, the only rating in excess of the 60 percent already assigned for IVDS is a 100 percent total rating which requires evidence of unfavorable ankylosis of the entire (cervical and thoracolumbar) spine. See 38 C.F.R. § 4.71a, DCs 5235-5242. In this case, neither the April 2013, nor his service treatment records, show any evidence of ankylosis of the spine. Even accounting for painful motion, there is no evidence that the Veteran’s low back disability resulted in stiffening and immobility of the spine such that would be found with fusion of the bones. Therefore, a 100 percent rating for unfavorable ankylosis of the entire spine is not supported by the evidence. In sum, the Board finds that the Veteran’s postlaminectomy syndrome should be granted an increased rating of 60 percent based on IVDS for the entire period on appeal, effective the date of service connection. 3. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity 4. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity In addition to his postlaminectomy syndrome, the Veteran had established separate grants of service connected for related radiculopathy of the right and left lower extremities, rated as 10 percent disabling each. Lower extremity radiculopathy is rated under Diagnostic Code 8520, which compensates for paralysis of the sciatic nerve. Under the applicable diagnostic criteria, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is assigned for moderate incomplete paralysis. A 40 percent rating is assigned for moderately severe incomplete paralysis. A 60 percent rating is assigned for severe incomplete paralysis with marked muscular atrophy. Finally, for compete paralysis of the sciatic nerve (described as the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or lost), an 80 percent rating is assigned. 38 C.F.R. § 4.124a, DC 8520. The words “mild,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in VA’s Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The Veteran was examined in April 2013, at which time neurological testing was normal in the lower extremities with the exception of an absent ankle jerk reflex bilaterally. Vibration, pain/pinprick, positional sense, and light touch testing were all normal. There was no dysesthesias found. Motor examination was normal and no muscle atrophy was found. Low back and bilateral leg pain was found, with fair response to current treatment. His foot examination showed generalized tenderness on the plantar surface. In terms of functionality, the examiner stated that his postlaminectomy syndrome plus his radiculopathy would result in decreased mobility, problems lifting and carrying, and decreased strength in the lower extremities. He was noted to use a neurological stimulator which helped his radicular symptoms, but he could not leave it on at all times as it resulted in an unpleasant tingling in his mid-back. The Board has also reviewed the Veteran’s available treatment records, to include his service treatment records, none of which explicitly address the period on appeal but do give an idea of the symptoms attributable to his radiculopathy. For example, in September 2012, he was found to have normal station and gait with continued pain radiating down his leg, which he described as “dull” and burning.” Neurological testing at that time was normal. In July 2013, just before his separation from service, he reported that his radicular symptoms had improved due to his nerve stimulator implant in December 2012 (he reported that it had helped “greatly”). He denied any neurological symptoms other than the improved pain. After careful review, the Board finds that an increased rating should not be granted for either lower extremity. In reaching this conclusion, the Board notes that the Veteran’s radiculopathy resulted in symptoms that were sensory at most. While he did experience pain, there is no indication that he sustained any other neurological complications in his lower legs, and the evidence of record indicates that his radicular pain had actually improved following the implantation of a nerve stimulator in December 2012. He did not have any weakness or other sensory issues such as loss of feeling in his legs. He did not have muscular atrophy. He certainly did not have any evidence of foot drop of loss of muscle use in the legs. The Board does acknowledge the appellant’s representative’s argument that the Veteran’s radiculopathy was worse than that which was reported in the available medical records. Generally, when a claimant asserts that a disability had worsened beyond what was reported in the most recent VA examination, the appropriate procedure is to request a new examination. Unfortunately, in this case, the Veteran passed away approximately one year after he was granted service connection for right and left radiculopathy, and therefore remanding for a new examination would be impossible. The Board is limited to adjudicating the claim based on the available evidence. In sum, the Board finds that for all periods on appeal, the Veteran’s bilateral lower extremity radiculopathy was mild in nature, and therefore increased ratings should not be granted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. 5. Entitlement to an initial compensable rating for left knee strain 6. Entitlement to an initial compensable rating for right knee strain Prior to his untimely death, the Veteran was granted service connection for bilateral knee strain, and assigned a noncompensable rating for each knee. He asserted that he was entitled to higher ratings. The Veteran’s bilateral knee strain has been assigned noncompensable ratings based on a diagnosed disability with no compensable symptoms. Knee disabilities are rated under various Diagnostic Codes depending on the symptoms associated with the disability. For example, a 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, DC 5258. Limitation of flexion of the knee results in a noncompensable rating when flexion is limited to 60 degrees or more. A 10 percent rating is assigned for limitation of flexion to 45 degrees. Limitation of flexion to 30 degrees results in a 20 percent rating. finally, limitation of flexion to 15 degrees or less is assigned a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260. Limitation of extension to 5 degrees or less is assigned a noncompensable rating. Extension limited to 10 degrees is assigned a 10 percent rating. Extension limited to 15 degrees is assigned a 20 percent rating. Extension limited to 20 degrees is assigned a 30 percent rating. Extension limited to 30 degrees is assigned a 40 percent rating. Finally, extension limited to 45 degrees or greater is assigned a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. A knee disability resulting in recurrent subluxation or lateral instability is assigned a 10 percent rating when such symptoms are slight in nature. Moderate symptoms result in a 20 percent rating. Severe symptoms result in a 30 percent rating. 38 C.F.R. § 4.71a, DC 5257. Ankylosis of the knee results in a 30 percent rating for ankylosis in a favorable angle in full extension, or in slight flexion between zero and 10 degrees. A 40 percent rating is assigned for ankylosis in flexion between 10 and 20 degrees. Flexion between 20 and 45 degrees is assigned a 50 percent rating. finally, extremely unfavorable ankylosis, implying fixed flexion of 45 degrees or more is assigned a 60 percent rating. 38 C.F.R. § 4.71a, DC 5256. Ratings are also assigned for tibia and fibula impairment and genu recurvatum, although the evidence does not support any such pathology in this case. 38 C.F.R. § 4.71a, DCs 5262-63. When rating based on limitation of flexion, a separate rating may be assigned for knee disabilities based on limitation of flexion as well as limitation of extension of the knee. Likewise, separate ratings may be assigned based on limitation of motion, as well as instability or subluxation, if found. See VAOPGCPREC 23-97 (Multiple Ratings for Knee Disability). 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The Veteran initially claimed bilateral knee pain. He was afforded a VA examination in April 2013. At that time he was diagnosed with bilateral knee sprain, with no other diagnosis or pathology given. His range of motion was complete to 140 degrees. Extension was complete to zero degrees. Stability testing was negative. There was no loss of range of motion on repetitive movement testing and no pain on active movement. No other joint abnormalities were identified. Reflexes and other neurological testing was normal. Muscle tone was normal and no muscle atrophy was identified. X-ray testing did not identify any type of musculoskeletal diagnosis, to include arthritis. The examiner stated that his bilateral chronic knee sprain did not have an effect on his usual daily activities and seemed to be a “minor chronic problem.” The Board finds that this examination does not give rise to a compensable rating for either knee. There is no loss of range of motion, either flexion or extension. He does not have instability, ankylosis, dislocation of the semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum. Even accounting for his pain, it does not give rise to any compensable symptoms such as limitation of flexion to 45 degrees or less or limitation of extension to 10 degrees or more. Even accounting for painful motion that is noncompensable, he would need a diagnosis of arthritis to get a minimum 10 percent rating under 38 C.F.R. § 4.71a, DC 5003, which he did not have. Thus a compensable rating is not warranted. The Board has also reviewed the Veteran’s available medical records and found no evidence that would support a higher rating. The Veteran generally did not seek treatment for his knees during service, with the exception of one incident in November 2012 where he complained of increasing knee pain. At that time, he had some crepitus in the knees but normal movement of all extremities; no effusion or erythema; no misalignment; no tenderness on palpation; no pain elicited by motion; no tenderness on ambulation; and no instability. An undefined patellofemoral dysfunction was noted, but no specific diagnosis given, and he was ordered to follow up in eight weeks if it did not improve. He did not follow up. This records also does not demonstrate any of the aforementioned compensable criteria for the knee and therefore would not support a higher rating. Physical therapy records for the Veteran’s low back disability indicate that he was able to complete knee bends and other activities without issue. There is no other identifiable evidence pertaining to the Veteran’s knees which would be relevant in adjudicating this claim. In short, because the Veteran did not have a diagnosis of arthritis of the knees, and did not exhibit any of the compensable criteria applicable to disabilities of the knees, a compensable rating for his knee disabilities is not supported in this matter. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. 7. Entitlement to an initial compensable rating for right ear hearing loss Prior to his untimely death, the Veteran sought a compensable rating for right ear hearing loss. In rating hearing loss, disability ratings are derived from the mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Disability ratings of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by pure tone audiometric tests at the frequencies of 1000, 2000, 3000 and 4000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness. An examination for hearing impairment 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 will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the pure tone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone average intersect. 38 C.F.R. § 4.85(b). The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d). Table VII, (Percentage Evaluations for Hearing Impairment) is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing. The percentage evaluation is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). If impaired hearing is service-connected for only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman numeral designation for hearing impairment of I. 38 C.F.R. § 4.85(f). In April 2013, the Veteran was afforded a VA examination in connection with his military medical board evaluation and initial claim for VA benefits. That examination showed audiogram testing with the following puretone thresholds in Hertz: HERTZ 1000 2000 3000 4000 Average RIGHT 10 15 15 40 22.5 LEFT 15 15 15 20 16.25 Maryland CNC Testing showed speech discrimination scores of 100 percent in the left ear, and 94 percent in the right ear. Application of the above audiogram results to Table VI reveals Level I hearing acuity in the right ear. 38 C.F.R. §4.85, Table VI. As noted above, service connection has not been granted for left ear hearing loss, and therefore that ear is assigned Level I hearing acuity. 38 C.F.R. § 4.85(f). Level I hearing acuity in the better ear, and level I hearing acuity in the poorer ear results in a noncompensable rating in accordance with the standards found in Table VII. 38 C.F.R. § 4.85, Table VII. Thus, a compensable rating may not be assigned based on the available audiogram results. (Continued on the next page)   The Board has carefully reviewed the evidence of record, but found no other audiogram results which would give rise to a higher rating for the period on appeal. thus, a compensable rating may not be assigned and an increased rating for right ear hearing loss is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel