Citation Nr: 18152108 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 14-02 756 DATE: November 20, 2018 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. An initial 10 percent evaluation, but no higher, for lumbar spine with mild degenerative changes throughout the appeal period is granted. An initial rating in excess of 10 percent for right leg radiculopathy is denied. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s current bilateral hearing loss is related to acoustic trauma sustained in active service. 2. The evidence of record demonstrates that the Veteran’s tinnitus is secondary to his service-connected bilateral hearing loss. 3. By resolving reasonable doubt in his favor, the Veteran is shown to have x-ray evidence of arthritis with noncompensable limitation of motion and painful motion throughout the appeal period; the Veteran’s thoracolumbar spine is not shown to have forward flexion to 60 degrees or less or to have a combined range of motion to 120 degrees or less, muscle spasm or guarding that resulted in abnormal gait or spinal contour, or any incapacitating episodes or evidence of physician-prescribed bedrest throughout the appeal period. 4. The Veteran’s right leg radiculopathy manifested mild symptoms throughout the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral sensorineural hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for an initial 10 percent evaluation, but no higher, for lumbar spine with mild degenerative changes throughout the appeal period are met. 38 U.S.C §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5242, 5243. 4. The criteria for an initial evaluation in excess of 10 percent for right leg radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to January 1968. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, the Agency of Original Jurisdiction (AOJ) granted a 10 percent evaluation for the Veteran’s lumbar spine disability, effective October 3, 2013, and a 10 percent evaluation for the right leg radiculopathy, effective March 22, 2011. Therefore, the issues have been recharacterized as above in order to comport with those awards of benefits. Service Connection for Hearing Loss and Tinnitus Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: “(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”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including bilateral hearing loss and tinnitus (other organic diseases of the nervous system), may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a); see also Fountain v. McDonald, 27 Vet. App. 258 (2015). Service connection may also be established on a secondary basis for a disability which is proximately caused by or aggravated by a condition for which service connection has already been established. 38 C.F.R. § 3.310. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). For VA benefits, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels (dB) or greater; when the auditory thresholds for at least three of those frequencies are 26 dB or greater; or when Maryland CNC speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. Moreover, clinical hearing loss is shown where the auditory thresholds exceed 20 dB. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran contends that his current bilateral hearing loss and tinnitus are related to his active military service. In June 2011, a VA examiner diagnosed bilateral sensorineural hearing loss meeting the criteria for VA purposes. Additionally, the Veteran’s DD Form 214 shows his Military Occupational Specialty (MOS) is field artillery. Further, he was awarded the Vietnam Service Medal and Vietnam Campaign Medal. As such, acoustic trauma during his active service is conceded. Thus, the first two element of service connection have been met in this case, and the case turns solely on whether there is a nexus to service in this case. The Board finds that the evidence of record is in equipoise on this point. A November 1965 pre-induction examination, shows no abnormalities related to hearing. The accompanying Report of Medical History also does not annotate any hearing abnormalities. During his active service there were no complaints, treatment or a diagnosis related to hearing loss. The record does not contain a separation examination. Following service, there was no medical treatment for hearing loss until the filing of his claim in March 2011. In June 2011, the Veteran was afforded a VA audiology examination. The pure tone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 35 50 75 LEFT 50 25 45 55 75 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 percent in the left ear. Thus, the VA has a current bilateral hearing loss for VA purposes due to the decibels at 2000 Hz, 3000 Hz to 4000 Hz. The VA examiner diagnosed bilateral sensorineural hearing loss. However, the examiner opined that the hearing loss was less likely than not related to active military service. The rationale cited related to the fact that the Veteran worked at a General Motors plant for 35-years following service. Moreover, research studies regarding hazardous levels of noise during military service showed that 95 percent of Veterans were exposed to hazardous noise in service but less than 20 percent had complaints of hearing disturbances and even fewer had identified hearing loss. Furthermore, according to an article titled “Hearing Health and Care” in the Journal of Rehabilitation Research and Development, only 20 percent of Veteran’s returning from combat deployment in Iraq and Afghanistan have complaints of hearing disturbance and only a percentage of those have complaints of hearing loss. Lastly, the examiner cited the Noise Manual (Fifth Edition, edited by Berger et al.) and Occupational Safety and Health Administration (OSHA) regulations that the nature, degree and audiometric configuration of hearing loss were consistent with a significant history of noise exposure. In the instance case, the Veteran had been exposed to artillery noise and tank gunfire from February 2006 to January 2008. As opposed to his 35-year history of occupational noise exposure at the General Motors plant on the assembly line. His exposure to hazardous noise in civilian life was far greater than his military exposure. In January 2014, the Veteran submitted a Form 9 perfecting his appeal that included a private doctor audiological examination. The audiologist opined that in his opinion the Veteran’s hearing loss was at least as likely as not related to his active military service. Reasoning was based on his current hearing loss being consistent with the type of noise exposure that he would have incurred during his active service. The Board notes that a Supplemental Statement of the Case (SSOC) in February 2014 gave greater weight to the June 2011 VA examiner’s opinion because his rationale was considered more in-depth with citations to medical research. However, as noted in a June 2014 statement from the accredited representative, there was no separation examination of record. Further, during the audiological examination the Veteran stated that hearing protection was required at the automobile plant and there were annual hearing tests. Moreover, without a separation examination there is truly no way to determine if there was a significant auditory threshold shift during service. The June 2011 VA examiner conceded that acoustic trauma occurred during service, however, the examiner did not know to what degree without a separation examination. As such, the Board finds the probative evidence of record is in balance. In sum, the Veteran has a current bilateral hearing loss disability, acoustic trauma was experienced during his active service, and the evidence is in equipoise regarding whether there is a nexus between his active military service and current hearing loss disability. Therefore, by resolving reasonable doubt in his favor, the Board finds that service connection for bilateral hearing loss is warranted based on the evidence of record in this case. See 38 C.F.R. §§ 3.102, 3.303. Turning to the Veteran’s tinnitus, such is capable of lay diagnosis in this case. Moreover, both the VA and private audiologist noted that the Veteran had tinnitus. The Veteran, as discussed above, is service connected for his bilateral hearing loss. The Board reflects that the June 2011 examiner opined that the Veteran’s tinnitus was as likely as not a symptom related to his hearing loss. The private audiologist additionally noted that it was possible that the Veteran experienced tinnitus because of his hearing loss. Based on those opinions, the Board finds that service connection for tinnitus on a secondary basis has been met in this case; service connection for tinnitus as secondary to his service-connected bilateral hearing loss is therefore warranted at this time based on the evidence of record. See 38 C.F.R. § 3.102, 3.310. Increased Rating for Lumbar Spine and Radiculopathy Disabilities Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 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 filed his claim initial claim for service connection for a lumbar spine disability on March 22, 2011. The Veteran has been assigned a noncompensable evaluation for his lumbar spine disability for the period prior to October 3, 2013, and as 10 percent disabling under Diagnostic Code 5243 thereafter. Additionally, the Veteran has been awarded a 10 percent evaluation for his right leg radiculopathy since March 22, 2011, under Diagnostic Code 8520. The Veteran’s lumbar spine disability has been assigned an evaluation under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, which assigns a 10 percent evaluation with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation may be assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation may be assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation may be assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. Id. at Note (1). Alternatively, the Veteran’s lumbar spine disability may be evaluated under the General Rating Formula for Diseases and Injuries of the Spine, which provides a 10 percent evaluation for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, a combined range of motion of the thoracolumbar spine not greater than 120 degrees, or 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 requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the 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 are zero to 30 degrees, and left and right lateral rotation are 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. Id. at Note (2). 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). Respecting the right leg radiculopathy, under Diagnostic Code 8520, which rates injuries to the sciatic nerve, a 10 percent rating is warranted for a mild incomplete paralysis. Moderate incomplete paralysis warrants a rating of 20 percent. Moderately severe incomplete paralysis warrants a 40 percent evaluation. Severe incomplete paralysis, with marked muscular atrophy, warrants a 60 percent evaluation. And finally, complete paralysis, defined as: the foot dangles and drops, no active movement possible of muscles below the knee, or flexion of the knee weakened or (very rarely) lost, warrants an 80 percent evaluation. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. The words “mild,” “moderate,” and “severe” are not defined in the VA Schedule for Ratings 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. It should also be noted that use of such terminology by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. § 4.2, 4.6. Turning to the evidence of record, the Veteran filed a claim for a low back injury in March 2011. In June 2011, the Veteran was afforded a VA examination for his lumbar spine. He reported that he always experienced discomfort in his lower back. The issue arose from an accident on active duty where a bunker collapsed on him leaving him pinned under the debris. He asserted that his back was getting progressively worse. At night, when he laid down to rest was generally the time of day he felt best. The examiner observed his gait was normal. Thoracolumbar spine Range of motion (ROM) forward flexion was recorded as 0 to 90 degrees and extension was recorded as 0 to 30 degrees. There was no objective evidence of pain following repetitive motion or additional limitations after 3 repetitions of ROM testing. Further, there was no history of urinary incontinence, ankylosis, incapacitating episodes, or other objective spinal abnormalities. The examiner diagnosed lumbar spine with mild degenerative changes. Moreover, the examiner concluded that the lumbar spine disability was at least likely as not related to his active military service. Finally, there was no impact on his occupational functioning or usual daily activities, although the Veteran reported that his lumbar spine did not “bother what [he did]. It’s just that the constant pain is there.” Regarding radiculopathy, the Veteran reported constant back pain that ached down his right leg. After evaluating the lumbar spine, the examiner concluded that the lumbar spine condition and right leg condition were at least likely as not caused by or a result of the injury he sustained on active duty. Magnetic Resonance Imaging (MRI) results submitted in July 2012, revealed mild degenerative changes from L2-L3 through L4-L5. Additionally, a July 2012 Computerized Axial Tomography (CT) scan showed degenerative disc disease which was advanced and narrowing along the lumbar spine. In October 2013, the Veteran was afforded another VA examination for his spine to determine his current symptomatology. He reported daily back pain and awakening on a nightly basis approximately 3 hours after going to bed. Bending caused pain and he could not lift as well as he used to previously. The examiner observed a normal gait. The Veteran was also able to walk on his toes and heals without difficulty occasionally losing balance attempting a tandem gait. The examiner recorded range of motion for forward flexion to 70 degrees and extension was to 25 degrees after repetitive motion testing; his combined range of motion after repetitive motion testing was greater than 120 degrees. Flare-ups were noted and after repetitive motion the examiner described less movement than normal and pain on movement. Moreover, there were muscle spasms with bilateral flexion and rotation was worse on the left. Tenderness to the para-vertebral muscle bilaterally was also observed. Muscle strength testing reveled 5/5 hip flexion. The examiner also annotated Intervertebral Disc Syndrome (IVDS). However, there were no incapacitating episodes over the past 12 months. No ankylosis or other spinal abnormalities were recorded. The diagnosis was degenerative disc disease of the lumbar spine. Regarding radiculopathy, the Veteran reported that if he sat for a long period of time his leg would fall asleep. He would then have to stand in order for the leg to awaken. His symptoms that were attributable to the neuropathy on his right lower extremity included moderate constant pain; paresthesias and/or dysesthesias at a moderate level and moderate numbness. Muscle strength was 5/5 for knee extension, ankle plantar flexion and ankle dorsiflexion. His gate was observed as normal. The examiner concluded that the sciatic nerve manifested incomplete paralysis with mild severity. Potential functional impact with substantial gainful activity was noted, however the Veteran was retired. He did report that he could no longer march in Veteran of Foreign War parades. Further, he attempted to walk 2 to 3 times per week approximately a half mile to a mile. Based on the foregoing evidence, the Board finds that the Veteran warrants a minimum compensable evaluation in this case for his lumbar spine disability under 38 C.F.R. § 4.59. As noted in the Veteran’s June 2011 VA examination, the Veteran reported pain, although no painful motion was noted on examination and range of motion testing. The Board finds that the Veteran is competent and credible to state that he has back pain in this case. Accordingly, by resolving reasonable doubt in this case, the Board finds that there is evidence of painful motion with x-ray evidence of arthritis, and therefore a 10 percent evaluation under Diagnostic Code 5003 is warranted in this case; throughout the appeal period; such satisfies the requirements in this case under 38 C.F.R. § 4.59. See 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003. Turning to whether the Veteran warrants an evaluation in excess of 10 percent for his lumbar spine disability in this case, the Board finds that the Veteran does not. As noted above there is no evidence of any physician-prescribed bedrest or any incapacitating episodes at any time during the appeal period. Furthermore, the Veteran’s forward flexion is only shown to be limited to 70 degrees during the appeal period, and his combined range of motion was shown to be greater than 120 degrees throughout the appeal period. Furthermore, there is no evidence of any muscle spasm or guarding that resulted in abnormal spinal contour or gait throughout the appeal period. Consequently, a higher evaluation under either of the General Formulas above is not warranted in this case. In short, the Board assigns the Veteran a 10 percent evaluation, but no higher, for his lumbar spine disability throughout the appeal period. His increased evaluation claim on appeal is granted to that extent, but is denied in all other respects. See 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Codes 5003, 5242, 5243. Finally, with respect to the right leg radiculopathy, the Board finds that the Veteran’s right leg radiculopathy reflected symptomatology more nearly approximated by a 10 percent rating. Specifically, the October 2013 VA examination recorded incomplete paralysis with mild severity. The Board has also considered the lay evidence in this case, in particular the statements provided the Veteran and his accredited representative in his October 2018 IHP. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case peripheral neuropathy, it falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the competent probative medical evidence and the October 2013 VA examination carry the greatest weight. The totality of the weight of competent, probative evidence shows the Veteran’s symptomatology reflects a frequency, severity, and duration commensurate with a 10 percent rating. Moderate symptoms of 20 percent have not been present during the period on appeal. As such, the next-higher rating is not warranted. Moreover, the evidence shows generally the same symptomatology throughout the period on appeal that staged ratings are not applicable. See Fenderson, 12 Vet. App. at 126-27. In sum, the Board finds that the preponderance of the evidence is against the claim of entitlement to an initial rating in excess of 10 percent for the Veteran’s right leg radiculopathy disability. See 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520. In so reaching the above conclusions, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. M. Williams, Associate Counsel