Citation Nr: 18153382 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 07-15 898 DATE: November 27, 2018 ORDER Entitlement to a compensable disability rating for right ear hearing loss is denied. REMANDED Entitlement to a disability rating in excess of 40 percent for status post L4-5, L5-S1 fusion and status post posterior lateral pedicle screw immobilization is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to January 29, 2010, is remanded. FINDING OF FACT The Veteran’s hearing loss is manifested by puretone threshold averages no higher than 46 decibels (dB) in the right ear, and speech recognition scores no lower than 92 percent in the right ear. CONCLUSION OF LAW The criteria for a compensable rating for right ear hearing loss have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1980 to November 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2006 rating decision, which granted a 40 percent disability for the Veteran’s lumbar spine disability, effective March 1, 2006, and denied a compensable disability rating for the Veteran’s right ear hearing loss. The Board notes that the Agency of Original Jurisdiction assigned the Veteran’s lumbar spine disability temporary total disability ratings under 38 C.F.R. § 4.30 in several rating decisions. A January 2013 rating decision granted the Veteran a TDIU rating, effective January 29, 2010. In January 2010, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video-conference hearing. A transcript of that hearing is of record. The issues presently before the Board were previously remanded in July 2010 and September 2016. Increased Rating Disability evaluations are determined by comparing the Veteran’s present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to a compensable disability rating for right ear hearing loss is denied. The Veteran’s service-connected right ear hearing loss is currently rated as zero-percent disabling under 38 C.F.R. § 4.85, Diagnostic Code 6100. In evaluating hearing loss, disability ratings are derived from a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests using the Maryland CNC word list, in conjunction with the average hearing threshold, measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. 38 C.F.R. § 4.85, Diagnostic Code 6100. The rating schedule establishes eleven auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI for profound deafness. See id. VA audiometric examinations are generally conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. Id. Table VI in 38 C.F.R. § 4.85 is then used to determine the numeric designation of hearing impairment based on the puretone threshold average derived from the audiometry test, and from the results of the speech discrimination test. The horizontal rows in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. See id. The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. Id. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row corresponding to the percentage of discrimination and the vertical column corresponding to the puretone decibel loss. Id. The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column corresponding to the numeric designation for the ear having the better hearing acuity (as determined by Table VI) and the horizontal row corresponding to the numeric designation level for the ear having the poorer hearing acuity (as determined by Table VI). There are alternative criteria for certain exceptional patterns of hearing loss. Specifically, if puretone thresholds in each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 dB or more, an evaluation will be based either on Table VI or Table VIA in 38 C.F.R. § 4.85, whichever results in a higher evaluation. 38 C.F.R. § 4.86(a). When the puretone threshold is 30 dB or less at 1000 Hertz and 70 dB or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIA under 38 C.F.R. § 4.85, whichever results in the higher Roman numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). The Veteran underwent a VA examination in May 2006. The examination report reflects a puretone threshold average of 23 dB in the right ear. Speech recognition testing yielded a score of 94 percent in the right ear. The examination report also reflects a puretone threshold average of 9 dB and a speech recognition score of 98 percent in the non-service-connected left ear. A June 2007 VA Physical Medicine Rehabilitation Consultation shows that there is mild to moderate severe conductive hearing loss in the Veteran’s right ear. The Veteran underwent a VA examination in February 2008. The examination report reflects a puretone threshold average of 46.25 dB in the right ear. Speech recognition testing yielded a score of 94 percent in the right ear. The examination report also reflects a puretone threshold average of 22.5 dB and a speech recognition score of 94 percent in the non-service-connected left ear. The Veteran underwent a medical examination in November 2008. The examination report reflects a puretone threshold average of 25 dB in the right ear. Speech recognition testing yielded a score of 96 percent in the right ear. The examination report also reflects a puretone threshold average of 18 dB and a speech recognition score of 98 percent in the non-service-connected left ear. The Veteran underwent an audio evaluation in July 2009, which provides that the Veteran demonstrates a mild conductive hearing loss in the right ear and high frequency hearing loss in both ears to a mild degree and that the Veteran can effectively communicate with good speech and good understanding. The Veteran underwent a VA examination in July 2009. The examination report reflects a puretone threshold average of 25 dB in the right ear. Speech recognition testing yielded a score of 96 percent in the right ear. The examination report also reflects a puretone threshold average of 20 dB and a speech recognition score of 94 percent in the non-service-connected left ear. The Veteran underwent a VA examination in November 2010. The examination report reflects a puretone threshold average of 46 dB in the right ear. Speech recognition testing yielded a score of 92 percent in the right ear. The examination report also reflects a puretone threshold average of 30 dB and a speech recognition score of 96 percent in the non-service-connected left ear. The Veteran underwent a VA examination in June 2011. The examination report reflects a puretone threshold average of 32 dB in the right ear. Speech recognition testing yielded a score of 96 percent in the right ear. The examination report also reflects a puretone threshold average of 20 dB and a speech recognition score of 100 percent in the non-service-connected left ear. A February 2012 VA Physical Medicine Rehabilitation Consultation shows that there is mild to moderate mixed hearing loss in the Veteran’s right ear and that right ear hearing is stable. A May 2015 VA Physical Medicine Rehabilitation Consultation shows that there is a slight decrease in several frequencies in each ear compared to the previous examination in 2012 and that the Veteran has a speech recognition score of 92 percent in the right ear and 100 percent in the non-service-connected left ear. The Veteran underwent a VA examination in August 2017. The examination report reflects a puretone threshold average of 42.5 dB in the right ear. Speech recognition testing yielded a score of 94 percent in the right ear. The examination report also reflects a puretone threshold average of 36.25 dB and a speech recognition score of 94 percent in the non-service-connected left ear. To determine the appropriate rating for the Veteran’s hearing loss, the above values are applied to Table VI. See 38 C.F.R. § 4.85. With respect to the right ear, the point where a puretone threshold average of 46 dB (the highest of record during the pendency of this claim) intersects with a speech discrimination score of 92 percent (the lowest of record) yields a numeric designation of I. With respect to the non-service-connected left ear, the point where a puretone threshold average of 36.25 dB (the highest of record during the pendency of this claim) intersects with a speech discrimination score of 94 percent (the lowest of record) yields a numeric designation of I. The point where designations I and I (as derived from Table VI) intersect on Table VII yields a 0 percent or noncompensable rating under Diagnostic Code 6100. See 38 C.F.R. § 4.85. Accordingly, the criteria for a compensable rating have not been demonstrated by a mechanical application of the rating schedule. The Veteran’s puretone thresholds shown in the VA examination reports do not reflect the exceptional patterns of hearing loss described in the rating schedule. See 38 C.F.R. § 4.86. Therefore, the alternative rating criteria do not apply. See id. The Board has considered the Veteran’s description of his difficulties with hearing, including that his right ear hearing loss forces him to turn the volume up on his television, position himself to better understand spoken conversations, and read lips, which he described during his January 2010 video-conference hearing. The Board does not doubt that the Veteran’s hearing loss causes him considerable challenges. The Board sincerely empathizes with the Veteran, but is bound to apply the applicable rating criteria. For the reasons explained above, the criteria for compensable disability rating are not satisfied. Because there is no evidence showing that his hearing loss has satisfied the criteria for a compensable rating at any point during the appellate period, staging is not warranted. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The functional effects of the Veteran’s difficulty hearing and understanding speech in various contexts are contemplated by the rating schedule. See Doucette v. Shulkin, 28 Vet. App. 366, 369, 371 (2017). Therefore, the claim does not warrant referral for extraschedular consideration. See id. In sum, the Veteran’s right ear hearing loss has not met or more nearly approximated the criteria for a compensable disability rating at any point during the pendency of this claim. Accordingly, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App.at 55-57. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 40 percent for status post L4-5, L5-S1 fusion and status post posterior lateral pedicle screw immobilization is remanded. The Veteran has undergone many VA examinations to evaluate the severity of his service-connected lumbar spine disability, but many of these VA examination reports do not contain adequate information concerning the severity, frequency, and duration of the Veteran’s flare-ups, as well as precipitating and alleviating factors and the extent of functional impairment and an estimation of the additional loss of range of motion during a flare-up. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran has reported flare-ups of his lumbar spine disability in VA examinations in May 2005, May 2006, May 2007, November 2008, September 2009, November 2010, June 2011, and August 2017. The Veteran underwent a VA examination in May 2005. The examination report demonstrates that the Veteran experiences three to four flare-ups per month that last three to four days per flare-up with pain that is rated 9/10. The examination report indicates that the Veteran experiences flare-ups as a result of physical activity, excessive walking and standing, and lifting. The examination report also shows that the Veteran’s flare-ups are alleviated with medication. The Veteran underwent a VA examination in May 2006. The examination report indicates that the Veteran’s experiences flare-ups two to three times per month, which last two to three days at a time, and requires the Veteran to seek bedrest for two to three days in response to each flare-up. The examination report also shows that the Veteran’s flare-ups occur because of increased activity. The Veteran underwent a VA examination in May 2007. The examination report demonstrates that the Veteran experiences daily flare-up pain that is rated 9/10, and that he has occasional sharp shooting pain down his right leg. Further, the examination report shows that the Veteran’s flare-up pain is provoked by physical activity and exertion on his back, which is alleviated by a hot bath and medication. The Veteran underwent a VA examination in November 2008. The examination report shows that the Veteran experiences flare-ups every two weeks with radiating pain down the posterolateral aspect of his right leg to his toes. The examination report also indicates that the Veteran’s flare-ups occur when he stands or sits for more than 45 minutes or walks more than one half mile and are alleviated in five days with rest, applying hot packs to his back, and increasing his medication. The Veteran also uses a straight cane during flare-ups. The Veteran underwent a VA examination in September 2009. The examination report provides that the Veteran experiences flare-ups of severe pain that occurs two to three times per month due to increased activity, which is alleviated by hot tub soaks, medication, and rest. The examination report further states that the duration of a flare-up typically lasts two to three days. An estimation of the additional limitation of range of motion could not be determined without resort to speculation. A January 2010 VA Neurosurgery Consultation Note shows that the Veteran advised of a flare-up of his lower back symptoms. The Veteran’s claims folder contains a November 2010 Compensation and Pension examination report that demonstrates that the Veteran reports experiencing flare-ups of increased pain due to prolonged sitting, standing, and walking. Flare-ups of pain can last from two days to one week. The examination report shows that the Veteran’s flare-ups are alleviated by injections and pain medication and that the flare-ups impair his day-to-day functioning. The Veteran underwent a VA examination in June 2011. The examination report indicates that the Veteran’s low back pain is worsening and that he experiences dull, achy pain with occasional sharp shooting pain that radiates to his right leg. The examination report also shows that the Veteran experiences flare-ups with pain rated 9/10, that occur on average five times per week, which are caused by standing and walking and alleviated by using a cane. The Veteran underwent a VA examination in August 2017. The examination report shows that the Veteran’s flare-ups are described as pain that forces him to rest until he can work or perform chores. In terms of functional impairment, the Veteran is unable to bend to his toes due to the pain. The examination report indicates that the examination is not being conducted during a flare-up, that pain, fatigue, weakness, and a lack of endurance cause functional loss and that the estimation of the additional loss of range of motion during a flare-up is described as forward flexion of the lumbar spine was 0 to 45 degrees; extension was 0 to 10 degrees; right lateral flexion was 0 to 10 degrees; left lateral flexion was 0 to 10 degrees; and right and left lateral rotations were each 0 to 10 degrees. Therefore, retrospective medical opinions are necessary to capture the severity of the Veteran’s lumbar spine disability for the entire appeal period, with attention to the severity, frequency, and duration of the Veteran’s flare-ups, as well as precipitating and alleviating factors and the extent of functional impairment and an estimation of the additional loss of range of motion during a flare-up. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). 2. Entitlement to an effective date prior to January 29, 2010, for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. The Veteran’s service-connected lumbar spine disability is being remanded and there is the potential for an assignment of an increased disability rating prior to January 29, 2010. The assignment of an increased disability rating prior to January 29, 2010, could impact whether the Veteran meets the schedular requirements of a TDIU rating prior to that date. Thus, the issue of an effective date prior to January 29, 2010, for a TDIU rating is inextricably intertwined with the issue of an increased rating for the Veteran’s service-connected lumbar spine disability. See 38 C.F.R. § 4.16(a); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Accordingly, it must be remanded as well. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from July 2017 to the present. 2. After the above development is completed, obtain a retrospective opinion, as best as can be ascertained from the Veteran’s self-reports as well as from clinical records and other evidence, including VA examination reports. (a.) The retrospective opinion must estimate any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time for the time period from May 2005 to August 2017. The Veteran has reported flare-ups of his lumbar spine disability in VA examinations in May 2005, May 2006, May 2007, November 2008, September 2009, November 2010, June 2011, and August 2017. (b.) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mussey, Associate Counsel