Citation Nr: 18159635 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 17-17 761 DATE: December 20, 2018 ORDER A rating in excess of 20 percent for lumbago and chronic low back pain (posttraumatic) is denied. Entitlement to a compensable rating for bilateral hearing loss is denied. An initial rating in excess of 10 percent for right lower extremity radiculopathy is denied. Entitlement to an earlier effective date for bilateral plantar fasciitis is denied. REMANDED Service connection for a right hip disorder as secondary to the service-connected lumbar spine disability with associated neurologic abnormalities is remanded. Service connection for a left knee disorder as secondary to the service-connected left ankle is remanded. FINDINGS OF FACT 1. The Veteran’s lumbar spine disability has not been manifested by forward flexion to 30 degrees or favorable ankylosis of the entire thoracolumbar spine. 2. The Veteran has, at worst, Level I hearing acuity in the right ear and Level I in the left ear. 3. The Veteran’s right lower extremity radiculopathy has not manifested by moderate paralysis of the sciatic nerve. 4. The Veteran filed an increased rating claim for bilateral plantar fasciitis on December 11, 2015. A March 2016 rating decision granted a higher 50 percent rating effective from the date of that claim. It is not factually ascertainable that an increase was warranted during the one-year period prior to December 11, 2015. There is nothing in the record that can reasonably be construed as a claim for an increase between the November 2012 final rating decision which awarded service connection for bilateral plantar fasciitis and the December 11, 2015 claim. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for lumbago and chronic low back pain (posttraumatic) have not been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 2. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code 6100. 3. The criteria for an initial rating in excess of 10 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8620. 4. The criteria for an effective date earlier than December 11, 2015 for a 50 percent rating for bilateral fasciitis have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1988 to August 1988, February 2003 to October 2003, and January 2008 to February 2009, with additional periods of service in the Army National Guard. Increased Rating Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 1. Lumbago and chronic low back pain (posttraumatic) The Veteran filed a claim for lumbar radiculopathy, and subsequently appealed the RO’s assignment of a 20 percent rating, effective October 20, 2015, for his service-connected lumbar spine disability. The Veteran has indicated in his February 2016 notice of disagreement that he seeks the maximum rating available for his lumbar spine disability. The Veteran’s lumbago and chronic low back pain (posttraumatic) is rated under Diagnostic Code 5237. Under this Diagnostic Code, a 20 percent rating requires thoracolumbar spine forward flexion greater than 30 degrees but not greater than 60 degrees; or, thoracolumbar spine combined range of motion not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. For VA 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 (0 degrees) always represents favorable ankylosis. See General Rating Formula for Diseases and Injuries of the Spine, Note 5. Any associated objective neurologic abnormality caused by the Veteran’s lumbar spine disability is to be separately rated under the appropriate diagnostic code. See 38 C.F.R. § 4.71a, Spine Note (1). To the extent the Veteran argues that he is entitled to separate compensable ratings for lower extremity radiculopathy, the evidence does not indicate that he has had a diagnosis of left lower extremity radiculopathy, and he has been awarded a separate compensable rating for right lower extremity radiculopathy, which is discussed in Section 3 below. The Board finds that functional limitation of the Veteran’s lumbar spine disability is best approximated by forward flexion to 65 degrees, which is based upon findings from repetitive use testing conducted during the December 2015 VA spine examination. The record does not support that the Veteran’s lumbar spine disability was manifested by forward flexion of 30 degrees or less, or ankylosis at any time during the appeal. While the VA treatment records indicate continued complaints of low back pain, they do not provide any range of motion testing results and therefore cannot serve as a basis for a higher rating. Based on the foregoing, entitlement to a rating in excess of 20 percent is not warranted. The evidence does not show range of motion or ankylosis as contemplated by the higher rating criteria to enable a finding that an increased rating is warranted under Diagnostic Code 5237. In reaching the above conclusion, the Board has considered the Veteran’s complaints of back pain. The Veteran is competent to report his own observations with regard to the severity of his disability, including reports of pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). His statements are consistent with the evidence of record and the rating assigned. The occurrence of pain is not an additional symptom, but rather the practical effect of the symptoms of pain and limited range of motion which have been clinically observed and measured in the evidence of record. To the extent that the Veteran argues his symptomatology is more severe than that shown during the December 2015 VA examination, his statements must be weighed against the other evidence of record, and the specific examination findings of a trained health care professional is of greater probative weight than his general lay assertions. Additionally, the Board acknowledges that the Veteran reported flare-ups of his lumbar spine disability, which he described as “unable to sleep.” This does not provide a legal basis for which an increased rating can be awarded since the Veteran did not describe a flare-up as manifesting by actual limitation of motion or joint function. While the VA examiner opined that range of motion estimates during a flare-up could not be provided without resorting to speculation based on the inability to observe a flare-up, the Veteran did report that flare-ups were manifested by increased pain and severe discomfort when sleeping. Based on the Veteran’s description of a flare-up, the Board finds that the VA examiner’s conclusion does not require further investigation. The United States Court of Appeals for Veterans Claims (Court) in Sharp v. Shulkin noted that for a joint examination to be adequate the examiner must determine whether pain could significantly limit functional ability and such determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). In this case, it is not feasible to provide range of motion estimates as the crux of the Veteran’s description of flare-ups is an inability to sleep due to pain. Pain alone is not sufficient to warrant a higher rating; as pain, in itself, does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 40-41 (2011). 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. at 43; see 38 C.F.R. § 4.40. The Board has considered the DeLuca factors and has found that repetitive use testing during the December 2015 VA spine examination best approximated the functional limitations caused by the Veteran’s lumbar spine disability. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Deluca v. Brown, 8 Vet. App. 202 (1995). The Board finds that the repetitive use testing range of motion measurements are reliable objective evidence of the impact of pain, weakness, fatigability and incoordination; these measurements are the best predicator of functional loss, to include that which might occur during a flare-up. The Board also considered other Diagnostic Codes; however, they are not applicable. In particular, Diagnostic Code 5243 provides that intervertebral disc syndrome (IVDS) be rated either under the General Rating Formula for Disease and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. As relevant to the case at hand, a 40 percent rating is assigned when there is IVDS with incapacitating episodes having a total duration of 4 weeks but less than 6 weeks during the past 12 months. While the VA examiner found that the Veteran did have IVDS, he did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Consequently, there is no evidence to support a higher rating under this Diagnostic Code. Accordingly, the Board finds that the preponderance of the evidence is against an increased rating, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Bilateral Hearing Loss The Veteran has indicated in his February 2016 notice of disagreement that he seeks the maximum rating available for his bilateral hearing loss. The Veteran is service-connected for bilateral hearing loss with a noncompensable rating under Diagnostic Code 6100. See 38 C.F.R. § 4.85. Evaluations of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 Hertz (Hz). To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. 38 C.F.R. § 4.85, Diagnostic Code 6100. Under 38 C.F.R. § 4.86, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels (dB) or more, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. Further, when the average pure tone threshold is 30 dB or less at 1000 Hertz, and 70 dB or more at 2000 Hz, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher level. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Doucette v. Shulkin, 28 Vet. App. 366 (2017); Lendenmann v. Principi, 3 Vet. App. 345 (1992). During the December 2015 VA audiological examination, pure tone thresholds, in decibels, were reported as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 15 35 55 55 40 LEFT 15 25 50 55 37.5 Speech audiometry, using the Maryland CNC Test, revealed speech recognition ability of 96 percent in both ears. These audiometric results do not demonstrate an exceptional pattern of hearing impairment. See 38 C.F.R. § 4.86. Therefore, applying these audiometric results to Table VII, the Veteran has Level I hearing acuity in the right ear and Level I in the left ear, resulting in a noncompensable rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. To the extent that the Veteran contends that his hearing loss is more severe than currently evaluated, the Board observes that the Veteran, while competent to report symptoms such as difficulty understanding people in communication settings, he is not competent to report that his hearing acuity is of sufficient severity to warrant a compensable rating under VA’s tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating that medical evidence was needed to support a claim for rheumatic heart disease). The Board further notes the United States Court of Appeals for Veterans Claims has held that, “in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.” Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Here, the December 2015 VA examiner found that the Veteran had difficulty understanding conversations in the presence of background noise. Even after considering such contentions as to the effects of the disability on his daily life and occupation, the Board finds that the criteria for a compensable rating are not met. See Lendenmann, supra. The Rating Schedule contemplates hearing impairment under the ordinary conditions of daily life. 38 C.F.R. § 4.10. While the Board is sympathetic to the Veteran’s contention that he has difficulty hearing, the VA rating criteria are definitive and provide for a precise result based on audiometric test results. His subjective report of difficulty hearing, to include the use of hearing aids, cannot be the basis for a compensable rating. The Board is bound to apply the VA rating schedule, under which the rating criteria are defined by audiometric test findings involving hearing acuity in a controlled laboratory environment, and the functional impact he describes is contemplated by the rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Accordingly, there is no basis to support a compensable rating for the Veteran’s service-connected bilateral hearing loss. As the preponderance of the evidence is against the assignment of a compensable rating, the benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Right lower extremity radiculopathy The Veteran has appealed the RO’s assignment of the separate rating for his right lower extremity neurological abnormalities associated with his service-connected spine disability. The Veteran has not made any specific allegations in furtherance of a higher rating, but rather has indicated in his February 2016 notice of disagreement that he seeks the maximum rating available. The Veteran’s right lower extremity radiculopathy has been rated as 10 percent disabling under Diagnostic Code 8620. Diagnostic Code 8620 provides a 10 percent rating for mild incomplete paralysis, a 20 percent rating for moderate incomplete paralysis, a 40 percent rating for moderately severe incomplete paralysis, and a 60 percent rating for severe incomplete paralysis with marked muscular atrophy of the sciatic nerve. An 80 percent rating is assigned for complete paralysis of the sciatic nerve, demonstrated by foot drop, no active movement possible of the muscles below the knee, and knee flexion that is weakened or (very rarely) lost. Disability ratings with respect to neurological conditions ordinarily are assigned in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. § 4.12. Therefore, when rating peripheral nerve injuries attention is given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory. Id. Special consideration is given to complete or partial loss of use of one or more extremities and disturbances of gait. 38 C.F.R. § 4.124a. The term “incomplete paralysis” with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a; Note prefacing Diagnostic Codes 8510 through 8730. Terms such as “mild,” “moderate,” and “severe” are not defined in the rating schedule. Rather than applying a mechanical formula, VA must evaluate all the evidence so that its decisions are equitable and just. See 38 C.F.R. §§ 4.2, 4.6. The Board finds that the Veteran’s right lower extremity radiculopathy resulted in mild incomplete paralysis of the sciatic nerve during the appeal period based on medical evidence in the record, to include the December 2015 VA spine examination that found mild right lower extremity radiculopathy. VA treatment records provide that in November 2011 the Veteran had radicular symptoms and had been prescribed nerve pain medication, which lowered the intensity of his pain. April and September 2012 VA primary care notes provided that while the Veteran had radicular symptoms, there were no major neurological deficits. Thereafter, May and November 2014 VA primary care notes provided that the Veteran’s radicular symptoms were controlled with the pharmacological therapy. The Board finds that the most probative evidence of record is the December 2015 VA spine examination, as it is the only medical opinion of record. Consequently, the Board adopts the opinion of the VA examiner, who ultimately found that the Veteran’s right lower extremity radiculopathy resulted in mild incomplete paralysis of the sciatic nerve. This opinion is supported by VA treatment records, which indicated that there were no major neurological deficits caused by the Veteran’s right lower extremity radiculopathy. The Veteran has not presented or identified any contrary medical opinion or treatment that supports his claim. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). In sum, the Board finds that the preponderance of the evidence is against this claim, and a rating in excess of 10 percent is not warranted at any time during the appeal. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Earlier Effective Date 4. Bilateral plantar fasciitis The Veteran asserts that he is entitled to an effective date of October 20, 2003 for his service-connected bilateral plantar fasciitis. The effective date of an increased rating shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application is received within one year from such date. Otherwise, the effective date will be the date of VA receipt of the claim for increase, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b)(3); 38 C.F.R. § 3.400(o). The Veteran was granted service connection for bilateral plantar fasciitis in a November 2012 rating decision, which assigned an effective date of November 8, 2011. He was notified of this decision and his appeal rights in a November 2012 letter. He did not appeal this decision and no new and material evidence was received within one year. As a result, the November 2012 rating decision, including the November 8, 2011 effective date, is final. See generally 38 C.F.R. §§ 20.302, 20.1103. The Veteran has not alleged that this decision contained clear and unmistakable error, and absent such an allegation, there is no basis upon which to assign an earlier effective date for this grant of service connection. See Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006) (there is no “freestanding” earlier effective date claim which could be raised at any time). He submitted an increased rating claim for service-connected plantar fasciitis on December 11, 2015. A March 2016 rating decision granted a higher 50 percent rating effective from the date of his claim. A review of the record does not show any submission or other evidence received after the November 2012 rating decision and prior to December 11, 2015, which could reasonably be construed as a claim for a higher rating for bilateral plantar fasciitis. Moreover, the medical evidence of record for the one-year period prior to December 11, 2015, does not contain any findings that address the rating criteria for plantar fasciitis with sufficient specificity to show that an increase was factually ascertainable during that time. REASONS FOR REMAND 5. Right hip disorder The Veteran contends that he has a right hip disorder that is secondary to his service-connected lumbar spine disability and associated neurologic abnormalities. The Veteran underwent a VA hip examination in December 2015, and the medical opinion was authored in February 2016. The VA examiner failed to provide a secondary service connection opinion. See 38 C.F.R. § 3.310(a), (b). In addition, the February 2016 opinion only discussed arthritis and not the findings of pelvic enthesopathy contained in the December 2015 examination report. Accordingly, a remand is necessary for a medical opinion to be obtained that addresses the issue of whether the Veteran has any diagnosed right hip disorder secondary to his service-connected lumbar spine and radiculopathy. 6. Left knee disorder The Veteran contends that he has a left knee disorder that is secondary to his service-connected left ankle disability. The Veteran underwent a VA knee examination in December 2015. The VA examiner failed to provide an aggravation opinion. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (indicating that findings of “not due to,” “not caused by,” and “not related to” a service-connected disability are insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b)). Accordingly, a remand is necessary for a medical opinion to be obtained that addresses the issue of whether the Veteran’s left knee disorder was aggravated by his service-connected left ankle sprain residuals. Moreover, on remand a direct opinion should be provided as to any left knee injury in service. Of note, a July 2014 VA emergency department note provided that the Veteran reported left knee pain after unexpectedly lifting a heavy piece of armory. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed right hip disorder during the pendency of the appeal. The examiner must opine whether it is at least as likely as not (1) proximately due to the service-connected spine and right lower extremity radiculopathy disabilities, and (2) aggravated beyond its natural progression by the service-connected spine and right lower extremity radiculopathy. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of a left knee disorder. The examiner must opine: (a.) Whether a left knee disorder is at least as likely as not related to an in-service injury, event, or disease, to include any injury to the left knee during service in the National Guard (as suggested by the July 2014 VA emergency department note). (b.) Whether a left knee disorder is at least as likely as not (1) proximately due to the service-connected left ankle sprain residuals, and (2) aggravated beyond its natural progression by the service-connected left ankle sprain residuals. Shamil Patel Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Dellarco, Associate Counsel