Citation Nr: 18159379 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 15-07 442 DATE: December 19, 2018 ORDER New and material evidence has not been submitted and the previously denied claim for service connection for hypertension is not reopened. The previously denied claim for service connection for a kidney condition claimed as kidney stones is reopened. The previously denied claim for service connection for an acquired psychiatric disability is reopened. Service connection for a kidney disability is denied. Service connection for an acquired psychiatric disability is denied. Service connection for a right shoulder disability is denied. Entitlement to a temporary total evaluation pursuant to 38 C.F.R. §§ 4.29 and 4.30 based on surgical or other treatment necessitating hospitalization and convalescence for a right shoulder disability is denied. A rating in excess of 10 percent for a lumbar spine disability prior to July 31, 2018 is denied. A rating of 20 percent for lumbar spine disability but no higher as of July 31, 2018 is granted, subject to the laws and regulations governing the award of monetary benefits. A compensable rating for bilateral hearing loss is denied. A rating in excess of 10 percent for tinnitus is denied. Whether the recoupment of severance pay by withholding VA disability compensation benefits was proper, and whether the Veteran still owes $28,023.50 for recoupment of severance pay is denied. FINDINGS OF FACT 1. The additional evidence presented since the October 2011 rating decision is duplicative or cumulative of evidence previously considered, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim for service connection for hypertension. 2. The evidence received subsequent to the most recent final denial of service connection for a kidney disability is new and material. 3. The evidence received subsequent to the most recent final denial of service connection for psychiatric disability is new and material. 4. The preponderance of the evidence is against finding that the Veteran has a kidney disability due to a disease or injury in service, to include exposure to contaminated water a Camp Lejeune. 5. The preponderance of the evidence is against finding that the Veteran has a psychiatric disability that either began during or was otherwise caused by his military service. 6. The Veteran’s right shoulder disability was not diagnosed within the Veteran’s first post-service year, and is not otherwise been shown to be etiologically related to service. 7. The Veteran’s period of convalescence beginning in August 2012 was not related to treatment for a service-connected disability. 8. Prior to July 31, 2018, even considering complaints of pain, pain on motion, and functional loss, the Veteran’s lumbar spine disability was not shown to have functionally limited forward flexion to 60 degrees or less, functionally limited the combined range of motion to 120 degrees or less, ankylosis, produced muscle spasm or guarding that resulted in an abnormal gait or abnormal contour, or caused incapacitating episodes having a total duration of at least 2 weeks during a 12-month period. At no time has forward flexion been shown to be functionally limited to 30 degrees, or ankylosis of the spine been shown. 9. At its worse, the Veteran’s bilateral hearing loss has been characterized by numeric designation Level I in the right ear and Level I in the left ear. 10. The Veteran currently receives the maximum schedular rating for tinnitus. 11. The Veteran received disability severance pay in the amount of $28,023.50 upon his discharge from service in November 1985; this amount must be deducted from his VA compensation benefits. CONCLUSIONS OF LAW 1. New and material evidence has not been received, and the criteria for reopening the claim for service connection for hypertension have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. As new and material evidence has been received since the last final rating decision, the requirements to reopen a claim for service connection for a kidney disability have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 20.302. 3. As new and material evidence has been received since the last final rating decision, the requirements to reopen a claim for service connection for an acquired psychiatric disability have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 20.302. 4. The criteria for service connection for a kidney disability are not met. 38 U.S.C. §§ 1112, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 5. The criteria for service connection for a psychiatric disability are not met. 38 U.S.C. §§ 1112, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 6. The criteria for service connection for right shoulder disability are not met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 7. The criteria for entitlement to a temporary total evaluation based on convalescence have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.30. 8. The criteria for a rating in excess of 10 percent for lumbar spine disability prior to July 31, 2018 were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.40, 4.45, 4.71a Diagnostic Code 5010-5237. 9. The criteria for a rating of 20 percent for lumbar spine disability but no higher as of July 31, 2018 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.40, 4.45, 4.71a Diagnostic Code 5010-5237. 10. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 5107; 38 C.F.R. §§ 3.321, 4.1, 4.10, 4.85, 4.86 Diagnostic Code 6100. 11. The criteria for a rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. § 1155; 5107; 38 C.F.R. §§ 3.321, 4.1, 4.10, 4.87 Diagnostic Code 6260. 12. The continued recoupment of severance pay by withholding the Veteran’s VA disability compensation is proper. 10 U.S.C. §§ 1174, 1212; 38 U.S.C. § 5107; 38 C.F.R. § 3.700. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1975 to November 1985. New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156 (a) (2017); Shade v. Shinseki, 24 Vet. App. 110. 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for hypertension With regard to the claim for hypertension, an October 2011 rating decision denied service connection for hypertension as there was no record of the Veteran having a hypertension during service or within the first year after separation from service. The pertinent evidence of record at time of the October 2011 RO rating decision included the Veteran’s service medical records and VA treatment records. The evidence received since the October 2011 RO rating decision consists of VA treatment records that show that the Veteran was being treated for a hypertension. While the Board finds that the evidence added to the record since the October 2011 rating decision is new, as it is evidence that was not previously submitted to the agency decision-makers, the Board finds that the evidence is not material. There is no new evidence that by itself or when considered with previous evidence relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for hypertension. There is no evidence to show that the Veteran had an in-service diagnosis of hypertension, a diagnosis of hypertension within the first year after separation from service, or that suggests that hypertension was related to service. Therefore, the evidence added to the record is not sufficient to raise a reasonable possibility of substantiating the claim. Moreover, even if the claim were reopened, this additional evidence would not trigger any duty to assist on the part of VA. The evidence required to reopen a previously denied claim is a low threshold, but is a threshold and the evidence presented in this case since it was denied simply does not reach that threshold. Accordingly, because new and material evidence has not been submitted, the Board finds that reopening of the claim of entitlement to service connection for hypertension is not warranted. 2. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for a kidney condition claimed as kidney stones Service connection for a kidney disability was previously denied in a November 1986 rating decision, on the basis there was no evidence of record to show that the Veteran’s had a diagnosed kidney disability. Since the November 1986 rating decision, the newly received evidence includes a March 2018 VA examination report that shows the Veteran had a diagnosed kidney disability noted as chronic kidney disease. This evidence is new as it was not previously of record, and it is material because it relates to unproven elements of the claim. Therefore, the new evidence is material, and the claim is reopened. 3. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for a psychiatric disability Service connection for an acquired psychiatric disability was previously denied in a November 1986 rating decision, on the basis there was no evidence of record to show that the Veteran’s had a diagnosed psychiatric disability. Since that time, VA treatment records have been received showing that medication had been prescribed for mild depression in July 2015. The evidence addresses one of the service connection criteria that was missing in 1986, namely a current psychiatric disability. As such it is new and material and the claim is reopened. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Service connection can be established by evidence that shows “(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.” 38 C.F.R. § 3.310 (a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The nexus requirement, in pertinent part, can be established through objective medical evidence; the application of statutory presumptions for chronic diseases like arthritis, when manifested to a compensable degree within a year of separation from service; or based on a continuity of symptomatology. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 4. Entitlement to service connection for a kidney disability is denied. The Veteran asserts that his current chronic kidney disability onset during active service or was due to active service to include as a result of his presumed exposure to contaminated water while stationed at Camp Lejeune. Additionally, effective March 14, 2017, a Veteran, or former reservist or member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987 shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. For purposes of this section, contaminants in the water supply means the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride, that were in the on-base water-supply systems. 38 C.F.R. § 3.307 (a)(7). Service personnel records confirm that the Veteran served at Camp Lejeune during this time frame, for sufficient time to be afforded the presumption of exposure. If a veteran served at Camp Lejeune during the time frame specified, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(7) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (f) (2017). Under 38 C.F.R. § 3.309 (f), diseases including kidney cancer, liver cancer, non-Hodgkin’s lymphoma, adult leukemia, multiple myeloma, Parkinson’s disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer shall be service-connected if the Veteran served at Camp Lejeune during the specified time frame. Here, however, the Veteran’s diagnosed kidney disability, which is diagnosed as chronic kidney disease, is not a disease included under 38 C.F.R. § 3.309 (f). Thus, service connection for a kidney disability on a presumptive basis is not warranted. A review of the service treatment records shows no complaints or reports of a kidney condition during service. Post-service treatment records also show that the Veteran was not diagnosed with a kidney disability during the first year after separation from service. A February 2018 VA examination report shows that the Veteran was diagnosed with chronic kidney disease at the age of 58. The examiner noted that the Veteran was diagnose with the condition in April 2016 and that it was unlikely that the condition was caused by contaminated water and Camp Lejeune. In support of the opinion, the examiner cited to medical literature as well as the 30-year latency period between the presumed exposure to contaminants and the diagnosis of a kidney disability. The examiner concluded that it was more likely that the Veteran’s use of NSAIDS, risk of hypertension, and age were the cause of his chronic kidney disease. The Veteran has reported that he believes his kidney condition was caused by active service. As a lay person, the Veteran is competent to report what comes to him through his senses, but he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of a chronic kidney disability. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). After a review of the evidence of record the Board finds that the VA examination report of record is probative that the Veteran’s kidney condition did not onset during service, was not due to exposure from Camp Lejeune, did not manifest during first year after separation from service, and continuity of symptomology is not shown. This opinion is supported by a thorough review of the Veteran’s medical records. Additionally, it is provided with full consideration of the Veteran’s lay statements and citations to medical literature. This opinion represents a thorough and reasoned medical analysis regarding the question of causation of the Veteran’s kidney condition. The examiner clearly explained basis for the conclusion, noting medical evidence, manifestation of the Veteran’s symptoms, and the time between service, symptom manifestation, and treatment. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, there is no record of the Veteran seeking any treatment for his kidney until many years after separation from service, which also weighs against the claim. As described, the criteria for service connection have not been met and the Veteran’s claim is denied. 5. Entitlement to service connection for a psychiatric disability is denied. The Veteran asserts that his psychiatric disability which has been noted as mild depression was caused by service. Service treatment records shows no reports or treatments for the psychiatric conditions. The Veteran reported being seen in service for nervous problems but he acknowledged that no mental illness was diagnosed. In the year following service, the Veteran filed a claim seeking service connection for a nervous condition. He was provided with a VA examination in April 1986 at which he was diagnosed with an adjustment disorder. However, the examiner noted that the Veteran was deeply depressed, angry, and frustrated from losing his relationship with his wife and daughter. The examiner noted that the Veteran condition was due to marriage difficulties which led to his divorce after separation from service. As such, no acquired psychiatric disability was found to be the result of the Veteran’s military service. The Veteran’s claim was denied, and there is no record of any treatment for psychiatric problems for multiple decades thereafter, until July 2015 when he was prescribed medication for mild depression. Initially, the Board finds that it cannot be concluded that the Veteran had a psychiatric disability during service. In fact, there is no objective medical evidence of any diagnoses of a psychiatric disability in service. Additionally, the 1986 VA examination report concluded that the Veteran’s adjustment disorder was due to his marital issues and not service. The Board notes that the VA examination was undertaken shortly after separation from service, but no psychiatric disability was linked to the Veteran’s military service at that time, and no evidence has been advanced to suggest that his currently diagnosed depression either began during or was otherwise caused by his military service. The Board finds that there is no competent medical evidence or opinion that any diagnosed psychiatric disability is related to the Veteran’s service, and the Veteran has not presented, identified, or alluded to the existence of any such opinion. The only other evidence of record supporting the Veteran’s claim are his own lay statements. Even if those statements claim continuity of symptomatology since service, that history is substantially rebutted by the absence of complaints pertaining to any psychiatric disability in service or until 2015. The Board finds that significant lapse of time since separation from service and onset of the psychiatric disability of 30 years may be considered as part of the analysis of a service connection claim and weights against the Veteran’s assertions. Maxson v. West, 12 Vet. App. 453 (1999). While the Veteran is competent to describe his symptoms, the Board finds that there is no evidence of record to show that he has the specialized medical education, training, or experience necessary to render a competent medical opinion as to the nature and etiology of the claimed psychiatric disability. Diagnosing and providing an etiology of a psychiatric disability to include depression is medically complex in nature. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the criteria for service connection have not been met and the Veteran’s claim is denied. 6. Entitlement to service connection for a right shoulder disability The Veteran asserts that his current right shoulder disability, diagnosed as degenerative joint disease and rotator cuff, were caused by active service. A review of the Veteran’s service treatment record shows that he was treated for a bruise and muscle strain affecting the right shoulder caused by being hit by another service member in August 1975. Reports of medical history after the 1975 incident shows that the Veteran specifically denied any “trick” shoulder on a medical history survey completed in 1980. Additionally, an October 1985 report found the Veteran was unfit for duty due to his lumbar spine condition, but made no concerns about any right shoulder condition. In November 2011, a VA examiner opined that it was less likely than not that the right shoulder degenerative joint disease and rotator cuff tear were related to service to include the in-service treatment for right shoulder trauma. The examiner noted that the Veteran had one incident of right shoulder trauma in 1975 but musculoskeletal evaluations in 1978 and 1980 showed no findings of any shoulder a condition. The examiner also noted that there were no treatments or reports of a right shoulder condition until 2011, therefore chronicity of the condition was not shown. In February 2018 a second VA examiner opined that it was less likely than not that the Veteran’s right shoulder disability was related to service. The examiner noted that the Veteran specifically denied any painful or trick shoulder on separation from service. Additionally, the examiner noted that the Veteran first sought treatment in 2011 for a right shoulder condition and the 26-year gap in time between separation to his first seeking treatment for the shoulder failed to show a chronic right shoulder condition. The Veteran has reported experiencing right shoulder problems since service. As a lay person, the Veteran is competent to report what comes to him through his senses, but he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of a chronic right shoulder disability that required radiographic technology to diagnose. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). After a review of the evidence, the Board finds that the VA examination reports of record are probative that the Veteran’s right shoulder disability did not onset during service, manifest during first year after separation from service, or exist continuously since service. These opinions are supported by a thorough review of the Veteran’s medical records. Additionally, it is provided with full consideration of the Veteran’s lay statements. These opinions represent a thorough and reasoned medical analysis regarding the question of causation of the Veteran’s right shoulder disability diagnosed as degenerative joint disease and a right rotator cuff tear. The examiners clearly explained basis for their conclusions, noting medical evidence, manifestation of the Veteran’s symptoms, and the time between service, symptom manifestation, and treatment. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges that lay testimony may in certain instances be used to show continuity of symptomatology used to support a later diagnosis. However, here, while the Veteran currently asserts that he experienced right shoulder pain from service to the present, the fact remains that he specifically denied any right shoulder pain on his medical history reports after he received treatment for right shoulder trauma in 1975. Curry v. Brown, 7 Vet. App. 59, 68 (1994). There is also no record of him seeking any treatment for his right shoulder until many years after separation from service which also weighs against the claim. As such, the criteria for service connection have not been met and the Veteran’s claim is denied. 7. Entitlement to a Temporary Total Evaluation because of treatment for a service-connected condition requiring Convalescence for right shoulder disability Pursuant to 38 C.F.R. § 4.30, a total disability rating will be granted following hospital discharge when “treatment of a service-connected disability” results in surgery necessitating at least one month of convalescence. The Veteran argues he is entitled to a temporary total disability rating due to August 2012 right shoulder surgical procedure that required convalescence. A temporary total rating of 100 percent for convalescence will be assigned if the treatment of a service-connected disability results in a surgery necessitating at least one month of convalescence, surgery with severe postoperative residuals, or immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30 (a). Entitlement to a temporary total convalescence rating arises on the date the Veteran enters the hospital. 38 C.F.R. § 3.401 (h)(2). Effective dates for temporary total ratings are governed by increased rating provisions of 38 U.S.C. § 5110 (a) and (b); 38 C.F.R. § 3.400. That section provides that “[t]he effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” 38 U.S.C. § 5110 (a). Regarding the August 2012 shoulder surgery, the Board notes that the Veteran is not service connected for a right shoulder disability. As the Veteran’s right shoulder disability is not service connected, a temporary total rating based convalescence following the August 2012 surgery to treat this condition cannot be granted as the threshold requirement is not met. The Board therefore finds that a temporary total rating for surgery on a service-connected disability necessitating convalescence is not warranted for the Veteran’s claimed periods of convalescence and the claim is denied. Increased Rating 8. Entitlement to a rating in excess of 10 percent for a lumbar spine disability The Veteran contends that a rating in excess of 10 percent is warranted from his lumbar spine disability rated under Diagnostic Code 5010-5237. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. Regulations provide that, when a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely-related disease or injury, in which both the functions affected and the anatomical location and symptomatology are closely analogous. 38 C.F.R. § 4.20. Under the current criteria, back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Diagnostic 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The evidence of record does not show that the Veteran has been prescribed bed rest to treat incapacitating episodes of IVDS, or even that the Veteran has had IVDS at any time during the appeal period. He has not argued to the contrary. For example, the October 2011, February 2018, and July 2018 VA spine examiners stated that the Veteran did not have IVDS, and neither stated that bed rest had ever been prescribed for IVDS treatment. Further, neither the Veteran’s private nor VA treatment records show that he has ever been prescribed bed rest for IVDS during the appeal period. Because the prescription of bed rest for IVDS is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, here, a rating based on IVDS is not appropriate and the Veteran’s lumbar spine disability will thus be evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when 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 evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5237. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 In October 2011, the Veteran underwent a VA examination for his thoracolumbar spine. The Veteran reported being in chronic pain since service but did not report flare-ups of the spine condition. On examination, range of motion measurements were as follows: flexion to 90 degrees or greater, with objective evidence of painful motion at 85 degrees; extension to 25 degrees or greater, with objective evidence of painful motion at 20 degrees; right and left lateral flexion to 30 degrees or greater, with objective evidence of painful motion at 30 degrees; and right and left lateral rotation to 30 degrees, with objective evidence of painful motion at 30 degrees. The Veteran was able to perform repetitive-use testing with three repetitions, which did not cause any additional limitation of motion on any measurement. The examiner stated that the Veteran did have any functional loss of the thoracolumbar spine noted as less movement than normal and pain on movement. Localized tenderness or pain to palpation was noted at the LS junction and iliosacral joints. No guarding or muscle spasm, no muscle atrophy, and all muscle strength tests were normal. Reflex exams, sensory exams, and straight leg raising tests were also all normal/negative. The Veteran was not found to have any radicular pain or symptoms, or any other neurologic abnormalities related to her thoracolumbar spine condition. Further, the examiner noted the Veteran did not use assistive devices to aid in locomotion. The examiner found no other pertinent physical findings, complications, conditions, signs, or symptoms. Imaging studies were reviewed and there was arthritis documented but there was no evidence of a vertebral fracture. The examiner stated the Veteran’s thoracolumbar spine condition did impact his ability to work. In February 2018, the Veteran underwent a VA examination for his thoracolumbar spine. The Veteran reported that he has dull sharp pain affecting his back that ranges on an intensity level of 6 to 9 out of 10. The Veteran reported working as an emergency medical tech (EMT), and noted that his back disability was easily aggravated by his work, requiring him to take breaks. Flare-ups of the spine condition were also reported that lasted a couple of hours before subsiding. He reported that walking had become restricted to less than one mile due to his back disability. On examination, range of motion measurements were as follows: flexion to 70 degrees, extension to 10 degrees; right and left lateral flexion to 20; right lateral rotation to 20 degrees; and left lateral rotation to 25 degrees. The examiner reported that range of motion itself contributed to functional loss of interfering with kneeling and lifting. Pain was noted in all directions of range of motions with evidence of pain with weight bearing. No localized tenderness was shown. The Veteran was able to perform repetitive-use testing with three repetitions, which did not cause any additional limitation of motion on any measurement. The examiner reported that an opinion as to pain, weakness fatigability, or incoordination affected his functional ability could not be provided without mere speculation. Pain on non-weight bearing was shown. Muscle spasms were not shown. Guarding not resulting in abnormal gait or contour were not shown. All muscle strength tests were normal. Reflex exams, sensory exams, and straight leg raising tests were also all normal/negative. The Veteran was not found to have any radicular pain or symptoms, or any other neurologic abnormalities related to his thoracolumbar spine condition. No vertebral fractures were shown. The examiner stated the Veteran’s thoracolumbar spine condition did impact his ability to work and he should avoid heavy lifting. In July 2018, the Veteran underwent an examination with an examiner completing a Disability Benefits Questionnaire (DBQ). The Veteran reported flare ups of the spine condition that caused a stabbing sharp pain. He reported functional impairments of interference with riding a bike, bowling, lifting patients, and interference with doing chest compressions in his duties as an EMT. On examination, range of motion measurements were as follows: flexion to 80 degrees or greater; extension to 5 degrees; right and left lateral flexion to 10 degrees; right lateral rotation to 20 degrees; and left lateral rotation to 15 degrees. Reduced range of motion was noted to interfere with bending and lifting. The examiner noted that objective painful motion was shown on all planes of motion with evidence of pain with weight bearing. Localized tenderness of the lower and mid back was noted. Repetitive use testing was accomplished with reduced motion of 75 degrees on forward flexion. The examiner reported that pain was the major cause of functional loss. The examiner described function loss caused by pain in terms of range of motion as forward flexion limited to 65 degrees, extension to 0 degrees, right and left lateral flexion to 5 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 10 degrees. During flare ups, the examiner estimated reduced range of motion limited to forward flexion to 55 degrees, extension to 0 degrees, right and left latera flexion to 5 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 5 degrees. Guarding of the thoracolumbar spine was noted, but not found to result in either an abnormal gait or an abnormal spinal contour. The examiner reported that the lumbar spine condition did impact the Veteran’s ability to work in his duties as an EMT, in that he was affected in the ability to lift patients, participate in codes such as chest compressions, at the end of 12 hour shifts he would have to walk bent over, and wheeling patients could cause pain. 38 C.F.R. § 4.71a clearly requires that a rating higher than 10 percent for a lumbar spine disability can only be assigned if, at a minimum, the Veteran exhibits forward lumbar flexion to 60 degrees or less; a combined range of motion of the lumbar spine of 120 degrees or less; or abnormal gate or abnormal spinal contour resulting from severe muscle spasm or guarding. At no time prior to July 31, 2018 has the Veteran exhibited flexion of his lumbar spine limited to 60 degrees or less. Further, his combined range of motion of her lumbar spine has not been shown to be 120 degrees or less. In addition, the Veteran has not been found to have an abnormal gait or abnormal spine contour. Therefore, the Veteran is not entitled to a schedular rating in excess of 10 percent for his lumbar spine disability prior to July 31, 2018. In evaluating disabilities of the musculoskeletal system, it is also necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. The weight of the evidence also indicates that the Veteran’s lumbar spine disability has not been so functionally limited as to warrant a rating in excess of 10 percent prior to July 31, 2018. Despite the Veteran’s reports, at VA spine examinations prior to July 31, 2018, the Veteran did not display functional loss due to pain which resulted in decreased range of motion, nor were additional limitations of motion found after three repetitions. Further, the VA examination reports prior to July 31, 2018 noted that the Veteran had some interference with range of motion which caused some difficulty with work as an EMT, but it was not suggested that the functional limitation was such that would support a rating in excess of 10 percent. As such, while the Veteran may, at times, experience pain on range of motion, pain has not been shown to effectively limit the forward flexion in his back to 60 degrees or less, or to so functionally limit the range of motion in her back that the combined range of such limited motion was 120 degrees or less. Here, as described, the weight of the probative evidence of record fails to demonstrate that the Veteran is entitled to a disability rating in excess of 10 percent for a lumbar spine disability prior to July 31, 2018. As such, entitlement to a disability rating in excess of 10 percent for a lumbar spine prior to July 31, 2018 disability is denied. As of July 31, 2018, the Board finds that the medical record demonstrates findings consistent with a higher 20 percent evaluation. The Veteran’s forward flexion was noted to be limited, at least during flare-ups, to 55 degrees during the July 2018 VA examination report, consistent with a 20 percent rating. As such, the Veteran is entitled to a 20 percent rating as of July 31, 2018. However, he did not demonstrate findings consistent with a 40 percent rating at any time during the course of the appeal. While the Veteran reported pain on range of motion, even considering pain his range of motion was still greatly in excess of 30 degrees for forward flexion as noted in the July 2018 DBQ, which would be required for a higher rating. In addition, while repetitive use testing resulted in additional range of motion limitations, he still demonstrated range of motion for forward flexion in excess of 30 degrees, therefore a rating in excess of 20 percent is not warranted. Of note, while VA regulations do provide for the rating of neurologic impairment separately from orthopedic impairment, in this case, the Veteran has already received separate ratings for neurologic impairment of his lower extremities, but has not challenged the ratings assigned for them. As such, these disabilities will not be discussed here. 9. Entitlement to a compensable rating for bilateral hearing loss Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. Lendenman v. Principi, 3 Vet. App. 345 (1992). The rating schedule establishes auditory hearing acuity levels based on average pure tone thresholds and speech discrimination. 38 C.F.R. § 4.85. Ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations. Ratings for hearing impairment range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by the results of the controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results of testing are charted on Table VI and Table VII. 38 C.F.R. § 4.85, Tables VI, VII. Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. When the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. When the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral for hearing impairment from Table VI or Table VIa, whichever is higher. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. An adequate evaluation of impairment of hearing acuity rests upon the results of controlled speech discrimination tests, together with tests of the average hearing threshold levels at certain specified frequencies. 38 C.F.R. § 4.85, Diagnostic Code 6100. An April 2012 VA audiological examination report showed pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 25 35 45 LEFT 15 20 25 65 65 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. The examiner reported that hearing loss did not impact the ordinary conditions of life. Analyzing the results of the May 2015 audiological evaluation, with mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results, the Veteran’s average hearing loss of 31 decibels in the right ear, 44 decibels of hearing loss in the left ear, together with hearing discrimination scores of 96 percent in the right ear and 96 percent in the left ear, results in Level I impairment in the right ear and Level I in the left ear under Table VI. A Level I impairment in the right ear combined with Level I impairment in the left ear is not a compensable hearing loss. At no time during the appeal period were each of the four hearing thresholds 55 decibels or greater, so no provision of 38 C.F.R. § 4.86, used to evaluate exceptional patterns of hearing impairment, is applicable. 38 C.F.R. § 4.86 (a) (applicable where all pure tone threshold levels were 55 dB or higher at 1000, 2000, 3000 and 4000 Hz), 38 C.F.R. § 4.86 (b) (applicable where the pure tone threshold is 70 dB or more at 2000 Hz). No other results of audiometric testing appear to be of record. The audiometric results disclose that the Veteran’s hearing loss is noncompensable under the schedular criteria. The evidence is not in equipoise to warrant a higher evaluation. 38 U.S.C. § 5107 (b). As these findings do not show that the criteria for a compensable rating for bilateral hearing loss are met, a compensable rating is not warranted. 10. Entitlement to a rating in excess of 10 percent for tinnitus Tinnitus is evaluated under Diagnostic Code 6260, which was revised effective June 13, 2003, to clarify existing VA practice that only a single 10 percent evaluation is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note 2. Historically, in Smith v. Nicholson, 19 Vet. App. 63, 78 (2005), the Court held that the pre-1999 and pre-June 13, 2003 versions of Diagnostic Code 6260 required the assignment of dual ratings for bilateral tinnitus. VA appealed this decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) and stayed the adjudication of tinnitus rating cases. In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court erred in not deferring to the VA’s interpretation of its own regulations, 38 C.F.R. § 4.25 (b) and Diagnostic Code 6260, which limits a veteran to a single disability rating for tinnitus, regardless whether the tinnitus is unilateral or bilateral. Subsequently, the stay of adjudication of tinnitus rating cases was lifted. It is now settled that the version of Diagnostic Code 6260 in effect prior to June 2003 as well as the current regulation precludes an evaluation in excess of a single 10-percent for tinnitus. Therefore, the claim for a higher rating for tinnitus, whether the Veteran seeks higher than 10 percent in one ear, or separate 10 percent ratings for each ear must be denied under Diagnostic Code 6260. As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 11. Whether the recoupment of severance pay by withholding VA disability compensation benefits was proper, and whether the Veteran still owes $28,023.50 for recoupment of severance pay. The recoupment of a veteran’s separation pay from his VA disability compensation is required by 10 U.S.C. § 1174 (h)(2), which states that a member who has received separation pay under this section, or severance pay or readjustment pay under any other provision of law, based on service in the armed forces shall not be deprived, by reason of his receipt of such separation pay, severance pay, or readjustment pay, of any disability compensation to which he or she is entitled under the laws administered by VA, but there shall be deducted from that disability compensation an amount equal to the total amount of separation pay, severance pay, and readjustment pay received. The recoupment of readjustment pay is controlled by 38 C.F.R. § 3.700 (a)(2)(iii), which states: Where entitlement to disability compensation was established on or after September 15, 1981, a Veteran who has received a lump-sum readjustment payment may receive disability compensation for disability incurred in or aggravated by service prior to the date of the receipt of lump-sum readjustment payment subject to recoupment of the readjustment payment. Where payment of readjustment pay was made on or before September 30, 1996, VA will recoup from disability compensation an amount equal to the total amount of readjustment pay. Where payment of readjustment pay was made after September 30, 1996, VA will recoup from disability compensation an amount equal to the total amount of readjustment pay less the amount of Federal income tax withheld from such pay. An opinion of the VA General Counsel, VAOGCPREC 14-92, concludes that “[i]n accordance with the provisions of 10 U.S.C. § 1174 and 38 C.F.R. § 3.700, VA disability compensation should be offset to recoup the amount of special separation benefits received by a former member of the armed forces.” The Veteran was separated from active service in November 1985. His DD Form 214 indicates that he received severance pay in the amount of $28,023.60 for his lumbar spine disability. An October 2011 rating decision granted service connection for arthritis of the lumbar spine. A November 2011 associated notice letter informed the Veteran that his award would be withheld until his readjustment pay had been recouped. The Veteran asserts that he was not notified by his chain of command that his severance pay allowance would be offset by a subsequent grant of VA disability compensation. The Board is sympathetic to the Veteran’s position, but finds it is without legal merit. The Veteran received his rightful readjustment pay at separation and later applied for disability compensation. The recoupment of the Veteran’s readjustment pay is required by Congress under 10 U.S.C. § 1174 (h)(2). In the Veteran’s case, the Board finds that the law, as written by Congress and implemented by VA regulation, has been applied correctly. The law requires recoupment of the VA compensation in the amount of readjustment pay received by withholding in monthly allotments payments of disability compensation benefits. 10 U.S.C. § 1174; 38 C.F.R. § 3.700 (a)(2)(iii). (Continued on the next page)   The Board is ultimately bound by the law passed by Congress, and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). It has been observed that “no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress.” Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). In this case, the facts are not in dispute, and application of the law to the facts is dispositive. Where there is no entitlement under the law to the benefit sought, the appeal must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Accordingly, the recoupment of the amount of readjustment pay from payments of VA disability compensation benefits is required by law and the appeal is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Dworkin, Associate Counsel