Citation Nr: 18157530 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 12-25 825 DATE: December 12, 2018 ORDER Service connection for tinnitus is denied. A disability rating in excess of 20 percent for degenerative disc disease (DDD) of the lumbar spine is denied. FINDINGS OF FACT 1. Tinnitus is not attributable to service and was not manifest within one year of separation from service. 2. DDD of the lumbar spine is not manifested by forward flexion limited to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of at least 4 but less than 6 weeks duration due to intervertebral disc syndrome. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for a rating in excess of 20 percent for DDD of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.27, 4.71a, Diagnostic Code (DC) 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1983 to February 1984 in the United States Army. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2010 and August 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2012, the Veteran had a hearing before a Decision Review Officer (DRO) at the RO. In June 2015, he had a Board videoconference hearing before the undersigned. Transcripts of these hearings are in the claims file. In August 2015 and October 2017, the Board remanded the claims for further development. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). For certain chronic diseases, such as tinnitus, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). For those listed chronic diseases, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). The Veteran has current tinnitus, documented on VA examination in September 2015. On his service entrance examination, tinnitus was not noted and the Veteran raised no pertinent complaints. Tinnitus was not documented in the service treatment records (STRs), and the record does not contain a separation examination report. However, personnel records show that his military occupational specialties (MOSs) in service included field artillery specialist and parachutist. In the March 2010 rating decision on appeal, VA noted that these MOSs are associated with a high probability of exposure to hazardous noise and found that in-service acoustic trauma had occurred. On VA examination in January 2010, the examiner noted the Veteran’s in-service noise exposure to grenade launchers, shoulder mounted missile launchers, Howitzers, cannon fire, M16 and 45 caliber fire, aircraft noise, and explosives noise. The Veteran reported he did not use hearing protection during military service. He reported that his tinnitus began after one day of artillery training in service when he experienced ringing and a plugged sensation in his ears, and has been constant ever since. He had no post-service occupational noise exposure but was exposed to the recreational noise of lawn mowing equipment without the use of hearing protection. Upon examination of the Veteran and a review of the claims file, the examiner opined that his tinnitus was less likely than not caused by or the result of in-service noise exposure. She stated that otoacoustic emissions tests (OAEs) measure cochlear outer hair function, and cochlear dysfunction is a cause of tinnitus. As comparative OAE testing conducted prior to and during military service had not been performed, it was unknown whether there was a change in cochlear function during military service and thus the disability was less likely than not related to military service. In June 2015, the Veteran testified before the undersigned that his tinnitus began when he broke his eardrum in service. Hearing Transcript p. 13. The Board notes this injury is not shown in the STRs. In August 2015, the Board remanded the claim for another medical opinion, noting that the January 2010 examiner had treated an absence of information of an injury as evidence that there was no injury, and had required a high degree of certainty in rendering her opinion. On VA examination in September 2015, the Veteran reported experiencing intermittent tinnitus during military service, with a duration of 5 minutes at a time. He could not recall a precipitating event. The examiner noted his in-service exposure to noise from weapons, diesel motors, gunfire, cannon fire, explosions, aircrafts, and radio noise without the use of hearing protection. There was no occupational noise exposure after service. Recreationally, he was exposed to the noise of power tools and lawn equipment without the use of hearing protection. Upon examination of the Veteran and review of the claims file, the examiner opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure. While noting a general onset in service, the examiner found that given his significant history of recreational noise exposure over many years, combined with the lack of an exact circumstance or date of onset, the tinnitus was more likely due to presbycusis and/or some other etiology. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The Veteran was clearly exposed to acoustic trauma in service. However, the fact that he sought treatment for other conditions after service, but not tinnitus, suggests, but is not dispositive of the fact, that either the condition was not then-present or that it was not continuous since service. The credibility of his report of tinnitus since service, including within one year of service, is undermined by his inconsistent reports of whether the disability has been constant or occasional and the circumstances under which it began. See Madden v. Gober, 125 F.3d 1477, 1481 (holding the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Moreover, the probative evidence does not show that the Veteran’s tinnitus is related to his active military service, including his in-service noise exposure. Rather, another etiology, presbycusis, was identified. The September 2015 VA examiner addressed the contentions of direct service connection, but opined that the Veteran’s tinnitus was not related to military service and was more likely related to his significant post-service recreational noise exposure. She based her conclusion on an examination of the claims file, including the Veteran’s reported history and symptoms. She provided a rationale for the conclusions reached. The only evidence to the contrary of the VA examination reports is the lay evidence. The Veteran reports his tinnitus was caused by in-service noise exposure, however, he does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of a medically complex disability such as tinnitus. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). In addition, as noted above, due to the inconsistent nature of his reports regarding the onset and severity of tinnitus, renders his reports unreliable for purposes of determining the etiology of the condition. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. Higher Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The Board's analysis will focus specifically on what evidence is needed to substantiate the claims, and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The probative evidence here includes the VA examination reports discussed below. The Veteran’s VA treatment records and private medical records were considered, but do not contain the specific information sufficient for rating the disability under the applicable rating criteria. The Veteran was awarded service connection for his lumbar disability and assigned a 20 percent rating in March 2010 rating decision. This 20 percent rating was continued in the August 2011 rating decision on appeal. Under the General Rating Formula for Diseases and Injuries of the Spine, the next higher rating of 40 percent rating is assigned with evidence of forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Ratings of 50 percent and 100 percent are assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine, or of the entire spine, respectively. Under the Formula for Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, ratings are assigned based on the quantity and duration of “incapacitating episodes” over a prior 12-month period. For purposes of evaluation under this formula, an “incapacitating episode” is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician. Under this Formula, a 40 percent rating is assigned with evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A maximum 60 percent rating is assigned with evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, and normal extension, bilateral lateral flexion, and bilateral lateral rotation is zero to 30 degrees. These rating criteria are applied with and without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Ankylosis is the complete immobility and consolidation of a joint due to disease, injury or surgical procedure. See, e.g., Dinsay v. Brown, 9 Vet. App. 79, 81 (1996), citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988). Note (5) in DCs 5235-5242 further explains that, 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. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are separately rated under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code, 5242, 5243, at Note (1). The probative evidence here includes VA examination reports from February 2010, June 2011, October 2012, and September 2015. Considering the pertinent evidence in light of the governing legal authority, the Board finds the preponderance of the evidence is against a rating in excess of 20 percent for the lumbar spine disability. On VA examination in February 2010, forward flexion was to 60 degrees. On VA examination in June 2011, forward flexion was to 50 degrees and the examiner stated there was no ankylosis of the spine. On VA examination in October 2012, flexion was to 90 degrees or greater with pain beginning at 90 degrees or greater. On VA examination in September 2015, flexion was to 60 degrees and there was no ankylosis of the spine. Thus, the evidence does not support the assignment of a 40 percent or higher disability rating on the basis of limitation of motion of the spine. The Board also finds insufficient evidence to support a finding that the Veteran’s low back pain is so disabling as to actually or effectively limit lumbar spine motion to such an extent as to warrant the assignment of a higher rating. On VA examination in February 2010, the Veteran reported no flare-ups. He could walk 3-4 blocks without resting. There was no additional loss of motion on repetition. The disability had no effect on chores, shopping, recreation, traveling, feeding, bathing, dressing, toileting, and grooming, and a moderate effect on exercise and sports. Assistive devices were not required. On VA examination in June 2011, the Veteran reported weekly flare-ups of back pain, of moderate severity and lasting for hours. There was no additional loss of motion on repetition. The disability had no effect on chores, shopping, recreation, traveling, feeding, bathing, dressing, toileting, and grooming, but it prevented exercise and sports. On VA examination in October 2012, the Veteran denied having flare-ups. There was no additional loss of motion on repetition; functional impairment included less movement than normal and pain. There was no interference with weight-bearing. Assistive devices were not required. On VA examination in September 2015, the Veteran denied having flare-ups. There was no additional loss of motion on repetition. There was no pain with weight-bearing. Assistive devices were not required. While the Veteran clearly experiences pain and functional loss, the Board cannot find that it approximates the level of severity as described by the next higher rating. The Board thus finds that pain and functional loss has already been considered in awarding the current rating. As for consideration of a higher rating on the basis of “incapacitating episodes,” the February 2010 VA examiner did not specify whether the Veteran had IVDS, but stated that he did not have incapacitating episodes. The June 2011 VA examiner found there was IVDS with incapacitating episodes, but did not find that prescribed bedrest was required. The October 2012 VA examiner found there was no IVDS. The September 2015 VA examiner found there was IVDS, but it had not required prescribed bed rest. VA and private treatment records do not indicate that the Veteran has been prescribed bed rest by a physician due to the service-connected lumbar spine disability. As such, the criteria for a higher evaluation under Diagnostic Code 5243 have not been met. As for consideration of a separate rating on the basis of neurological manifestations of the disability, the Veteran has been awarded separate ratings for sciatic radiculopathy of the right leg and the left leg, with an effective date of September 12, 2015. The Veteran did not disagree with the rating decisions on these issues, and the matters of entitlement to higher ratings for these disabilities are not currently before the Board. VA examiners in February 2010, June 2011, and October 2012 did not document any neurological disabilities associated with the DDD of the lumbar spine. The September 2015 VA examiner found there were no associated neurological abnormalities aside from the already-service connected bilateral sciatic radiculopathy of the legs. Thus, the preponderance of the evidence is against any separate rating for neurological abnormalities associated with the lumbar spine disability. For all the foregoing reasons, the Board finds the preponderance of the evidence is against a rating higher than 20 percent for the lumbar spine disability and any separate rating based on neurological abnormalities. M. Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith, Counsel