Citation Nr: 18159309 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 14-01 069 DATE: December 18, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to a rating of 20 percent, but no greater, for a service-connected lower back disability for the period prior to August 30, 2016 is granted. REMANDED Entitlement to service connection for migraine headaches is remanded. Entitlement to a rating in excess of 20 percent disabling for a service-connected lower back disability for the period since August 30, 2016 is remanded. FINDINGS OF FACT 1. The Veteran does not have a diagnosis of hearing loss disability for VA purposes. 2. For the period prior to August 30, 2016, the Veteran’s symptoms related to his lower back disability most nearly approximated forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for entitlement to a rating of 20 percent disabling, but no greater, for the period prior to August 30, 2016 for a service connected lower back disability have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Entitlement to service connection for bilateral hearing loss 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; 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). 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). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310 (b). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, 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. The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley, supra, at 159. The medical evidence of record indicates that the Veteran does not have a current diagnosis of hearing loss for VA purposes. He exhibited his worst level of hearing at a July 2018 VA authorized examination, where the Veteran was measured as having speech discrimination scores of 94 percent bilaterally and an audiogram indicated pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 25 25 LEFT 30 25 20 25 30 Therefore, based on the foregoing, the Board finds that the Veteran does not have a current diagnosis hearing loss under 38 C.F.R. § 3.385, as audiometric testing fails to reveal that the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater or that the auditory threshold in at least three of those frequencies are 26 decibels or greater; or that the speech recognition scores using the Maryland CNC Test are less than 94 percent. In this regard, in McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. In the instant case, the probative evidence of record fails to demonstrate a current diagnosis of hearing loss for VA purposes at any point during the pendency of the claim. While the Board has also considered the Court’s holding in Romanowsky, there is also no probative evidence of a recent diagnosis of disability prior to the Veteran’s claim. Accordingly, there is no evidence that the Veteran meets the standards for entitlement to service connection for hearing loss under 38 C.F.R. § 3.385 and, in fact, all audiometric testing of record fails to reflect hearing loss as defined by VA regulations. The Board has considered the Veteran’s allegations that he suffers from hearing loss due to noise exposure in service. However, the Board must adhere to the guidelines of 38 C.F.R. § 3.385, which do not provide for a finding of a current disability for pure tone thresholds or speech recognition scores that fail to meet the required minimum pure tone thresholds and speech recognition scores listed in the regulation. Moreover, the Veteran, as a lay person, is not competent to offer a diagnosis of hearing loss as he does not possess the requisite specialized knowledge. In this regard, such a diagnosis requires the administration and interpretation of audiological test results. Therefore, as such is a complex medical question, the Veteran is not competent to offer a diagnosis of hearing loss. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, as the objective medical evidence is against the finding that the Veteran’s hearing loss rises to the level that allows for compensation under the governing law and regulation, the Board finds that he does not have a current diagnosis of hearing loss for VA and entitlement to service connection for hearing loss is not warranted. 2. Entitlement to a rating in excess of 10 percent disabling for the period prior to August 30, 2016 for a service-connected lower back disability Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). While a Veteran’s entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Hart, 21 Vet. App. 505. In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Francisco, 7 Vet. App. at 58; Hart, 21 Vet. App. at 505. The Veteran contends that he is entitled to a rating in excess of 10 percent prior to August 30, 2016, and in excess of 20 percent disabling thereafter. Presently, the Veteran’s lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Pursuant to 38 C.F.R. § 4.71a, disabilities evaluated under Diagnostic Code 5242 may be rated either under the general rating formula for diseases and injuries of the spine (general rating formula) or under the formula for rating IVDS based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the general rating formula, a 10 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness that does not result in abnormal gait or abnormal spinal contour; or, vertebral body fracture is present with loss of 50 percent or more of the height. A 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 60 percent rating is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine. Lastly, a 100 rating is warranted where there is unfavorable ankylosis of the entire spine. Note 5 to the general rating formula defines unfavorable ankylosis as “a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spinal column 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.” Note 5 to the general rating formula also clarifies that “[f]ixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.” Comparatively, under the formula for rating IVDS, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1 to the formula for rating IVDS based on incapacitating episodes defines an incapacitating episode as “a period of acute signs and symptoms due to [IVDS] that requires bed rest prescribed by a physician and treatment by a physician.” Finally, the Board recognizes that, in some circumstances, it must consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination when deciding an appropriate rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The Board finds that although the Veteran’s measured limitation of motion of his thoracolumbar spine for the period prior to August 30, 2016 falls under the criteria for a 10 percent rating, when considering additional functional loss associated with his symptoms, his lower back disability more nearly approximates the criteria for a 20 percent rating, but no greater, pursuant to DeLuca, supra. An April 2012 VA primary care record indicated that the Veteran had chronic back pain, and noted that he “resolved workman’s comp.,” but also indicated that he was working as a corrections officer and was active and exercising. In an April 2012 VA examination, the Veteran was diagnosed with a lumbar strain and degenerative disc disorder. He indicated that he experienced flare-ups related to his lower back disability on occasion with lifting, which resulted in increased pain that lasted hours. The Veteran stated that medication was helpful in resolving his flare-ups. He exhibited a range of motion for his thoracolumbar spine of: 80 degrees of forward flexion, with pain beginning at 80 degrees; 30 degrees of extension, with pain beginning at 30 degrees; 30 degrees of right lateral flexion, with no objective evidence of pain; 30 degrees of left lateral flexion, with no objective evidence of pain; 30 degrees of right lateral rotation, with no objective evidence of pain; and 30 degrees of left lateral rotation, with no objective evidence of pain. The examiner indicated that there was no additional limitation of motion after repetitive use testing, but noted that the Veteran had additional functional loss of less movement than normal and pain on movement. The examiner indicated that there was localized tenderness or pain on palpation of the paraspinous muscles and guarding or muscle spasm of the thoracolumbar spine that did not result in an abnormal gait. The Veteran had a positive result for both legs in the straight leg raising test. No neurologic abnormalities, ankylosis, or intervertebral disc syndrome were present. An x-ray revealed mild degenerative disc disease and spondylosis of the lumbar spine without acute osseous abnormality. Private treatment records from June 2013 to December 2013 indicated that the Veteran was restricted due to an April 2013 lumbar sprain, which limited his ability to lift, pull, and push in his occupation as a corrections officer. He was treated with physical therapy for his injury. A July 2013 VA primary care note indicated that the Veteran experienced lower back pain which radiated bilaterally down to his calves. In a May 2014 VA examination, the examiner noted that the Veteran had difficulty bending forward due to lower back pain and could not sit straight for long without bending forward to relieve his back pain. The Veteran indicated that he could not perform physical activities such as playing with his children do to his back disability. The examiner noted that the Veteran did not experience flare-ups. He exhibited a range of motion for his thoracolumbar spine of: 70 degrees of forward flexion, with pain beginning at 70 degrees; 20 degrees of extension, with pain beginning at 20 degrees; 15 degrees of right lateral flexion, with pain beginning at 15 degrees; 10 degrees of left lateral flexion, with pain beginning at 10 degrees; 30 degrees of right lateral rotation, with no objective evidence of pain; and 30 degrees of left lateral rotation, with no objective evidence of pain. The examiner indicated that there was no additional limitation of motion after repetitive use testing, but noted that the Veteran had additional functional loss of less movement than normal and pain on movement. The was no indication of localized tenderness or pain to palpation of the thoracolumbar spine and no indication of muscle spasm or guarding. The examiner noted that the straight leg raising test was normal. No neurologic abnormalities, ankylosis, or intervertebral disc syndrome were present. The Veteran indicated that he occasionally used a brace if he had to do some physical activity. While the Veteran exhibited at worst a forward flexion of 70 degrees and a combined range of motion of 175 degrees, the record reflects that he reported experiencing flare-ups resulting in increased pain and reduced range of motion. Further, VA examiners indicated that the Veteran experienced additional functional loss of less movement than normal and increased pain with repetitive use of his back. He underwent physical therapy for his lower back and was restricted in his ability to perform actions associated with his occupation. Additionally, he indicated that he could not perform physical activities such as playing with his children, and his chronic pain required treatment with prescription painkillers. The Board finds that the Veteran’s symptoms are of a sufficient severity to more nearly approximate the next highest rating for his lower back disability, and a rating of 20 percent, but no greater, for the period prior to August 30, 2016 is warranted. During the period prior to August 30, 2016, the Veteran was not diagnosed with IVDS or ankylosis of his thoracolumbar spine, and was not prescribed bed rest by a physician. Furthermore, the Veteran’s measured range of motion is well in excess of that required for a higher rating, and even when considering his additional functional loss, his symptoms do not more nearly approximate the criteria for a rating in excess of 20 percent. Accordingly, entitlement to a rating in excess of 20 percent disabling for the period prior to August 30, 2016 is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for migraine headaches is remanded. The Veteran contends that he is entitled to service connection for migraine headaches, to include as secondary to his service-connected obstructive sleep apnea (OSA). The Veteran was most recently afforded a VA examination regarding his claimed headache condition in June 2018. However, the Board finds that the examiner failed to consider all relevant evidence of record, and a new examination is necessary on remand. The June 2018 examiner opined that the Veteran’s migraine headaches were less likely as not related to his active military service. The examiner noted that the Veteran reported that the onset of his headaches meeting the migraine criteria occurred in 2006, and that the minor headaches he experienced in 2001 were related to heat exposure and did not meet the criteria for migraines. The examiner further stated that neither insomnia or OSA could cause migraines, which are a primary neuronal dysfunction, but the conditions could exacerbate pre-existing migraines. In a September 2018 supplementary medical opinion, the examiner again stated that the Veteran reported the onset of his migraine headaches in 2006, which he described as being of moderate severity. The examiner noted that the Veteran’s current severity of his headaches was greater than that in 2006, but indicated that the increase in severity was due to a 2009 head injury not associated with his military service. The examiner opined that his OSA did not aggravated his migraine headaches, explaining that his service-connected condition was only of mild severity and had been present and stable for years before the onset of his migraines, during the three-year period of more severe headaches (due to his head injury), and from that three-year period to the present. The examiner stated that at no time did the medical records indicate that his OSA suddenly became worse in 2009 and then remained worse until 2012. The examiner noted that the Veteran was not even diagnosed with OSA until 2014, and it was less likely than not that his OSA aggravated his headache condition beyond its natural progression. While the examiner noted that the Veteran reported an onset of migraine headaches in 2006 and that headaches he experienced in 2001 were not migraine headaches, in a July 2012 VA neurology clinic note, the Veteran claimed that his headaches began in 1995 and progressively became more frequent and painful. The examiner did not address this evidence or inquire with the Veteran as to the symptoms he experienced during any time prior to 2001. This information is relevant to the question at hand, as the Veteran was serving on active duty for part of 1995. Accordingly, the June 2018 and September 2018 opinions are inadequate and a new examination is required which addresses all relevant evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 2. Entitlement to a rating in excess of 20 percent for a service connected lower back disability for the period since August 30, 2016 is remanded. The Veteran contends that he is entitled to a rating in excess of 20 percent disabling for a service-connected lower back disability for the period since August 30, 2016. The Veteran was most recently provided a VA examination regarding his lower back disability in June 2018. In the June 2018 VA examination, the examiner indicated there was additional functional loss of the Veteran’s lower back after repeated use over time. The examination report shows that the examiner indicated that pain significantly limited functional ability with repeated use over time, limiting heavy physical activity or bending and lifting, but did not provide any further qualitative or quantitative description of the functional limitation which would allow the Board to determine the severity of the Veteran’s lower back disability under such conditions. Additionally, the examiner stated that he could not say without mere speculation whether flare-ups significantly limited functional ability because the examination was not conducted during a flare-up. According to Sharp v. Shulkin, when a Veteran complains of flare-ups, the examiner must “state their severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, they affect functional impairment.” 29 Vet. App. at 10-11. If feasible, functional loss due to flare-ups should be expressed in terms of the degree of additional range-of-motion loss. If the examiner cannot express functional loss in this manner without resorting to speculation, he or she “must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered,” e.g., whether that is due to the limitation of knowledge in the medical community at large, or due to insufficient information in the instant case. Therefore, upon remand, if the requested examination is not conducted during a flare-up, the VA examiner will be asked to estimate functional loss during flare-ups not only based on the Veteran’s descriptions of his additional loss of function during flare-ups, but also as gleaned from her medical records or discerned from other sources available to the examiner. See Sharp, 29 Vet. App. at 35-36. Such information is necessary to adequately understand her additional or increased symptoms and limitations experienced during flare-ups. Id. The AOJ should also obtain any relevant, outstanding VA treatment records and provide the Veteran the opportunity to submit or identify any relevant, outstanding private treatment records. The AOJ should obtain any such records for which proper approval has been given. The matter is REMANDED for the following action: 1. The AOJ should obtain any relevant, outstanding VA treatment records and provide the Veteran the opportunity to submit or identify any relevant, outstanding private treatment records. The AOJ should obtain any such records for which proper approval has been given. 2. After any newly obtained records have been associated with the claims file, arrange to have the Veteran scheduled for a new VA back (thoracolumbar) examination. The entire claims file, to include a complete copy of the remand, must be made available to the examiner designated to examine the Veteran, and the report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies of the thoracolumbar spine should be accomplished (including range of motion with testing for pain on both active and passive motion and in weight bearing and non-weight bearing), and all clinical findings should be reported in detail. The examiner should take a history from the Veteran as to the progression of his disability since August 30, 2016. A detailed account of all symptomatology found to be present should be included in the examination report. This should include a discussion of functional loss due to pain, fatigue, or instability during flare-ups or following repetitive use of the thoracolumbar spine. The examiner should state the severity, frequency, and duration of flare-ups. To the extent possible, the examiner should report or estimate functional loss in terms of the degree of additional loss of range of-motion. If the examiner cannot express functional loss in this manner without resorting to speculation, he or she must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered, e.g., whether that is due to the limitation of knowledge in the medical community at large, or due to insufficient information in the instant case. If the examination is not conducted during a flare-up or after repetition over time, the examiner should ask the Veteran to describe the additional functional loss he suffers during flares and after repetition over time. The examiner may also utilize information from his medical records or other sources available to the examiner to obtain the needed information. Then, the examiner should estimate the functional loss due to flare-ups based on all the evidence of record. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached. 3. Schedule the Veteran for an examination with an appropriate examiner to determine the nature and etiology of his migraine headache condition. The entire claims file, to include a complete copy of the remand, must be made available to the examiner designated to examine the Veteran, and the report of examination should include discussion of the Veteran’s documented history and assertions. All tests and studies, as well as the finding contained therein, should be reported in detail. The examiner should elicit from the Veteran a full history of his headache symptoms, including regarding the claim that his headaches began in 1995 documented in the July 2012 VA neurology clinic record. A detailed account of all relevant symptomatology found to be present in the claims file should be included in the examination report. The examiner is asked to provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s migraine headache condition is related to his active military service. If the examiner finds that it is less likely than not that the Veteran’s migraine headache condition is related to his active military service, the examiner is asked to provide an opinion as to whether the Veteran’s migraine headache condition was aggravated beyond its natural progression due to or as a result of a service-connected disability, including OSA. The examiner should discuss all relevant prior medical opinions and discuss any differences of opinion with any such document. The respective examiners must provide a clearly stated rationale for any opinion expressed. If the requested opinions cannot be provided without resorting to speculation, the examiner should provide reasons why this is so, and discuss whether the inability to provide the necessary opinion is due to the absence of evidence or the limits of medical and scientific knowledge. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Ferguson, Associate Counsel