Citation Nr: 1806937	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  14-08 599	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1. Entitlement to an initial disability rating in excess of 10 percent for a lumbar strain.

2. Entitlement to a compensable rating for a left shoulder sprain.

3. Entitlement to a compensable rating for a right wrist sprain.

4. Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. A. Macek, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 2007 to March 2011 in the United States Marine Corps. He received the Combat Action Ribbon for his service in the Southwest Asia Theater.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.

In February 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a Board video conference hearing. A transcript of the hearing has been associated with the claims file.


FINDINGS OF FACT

1. The Veteran's lumbar strain was manifested by pain and limitation of motion that was measured as 0 to 85 degrees on flexion and 0 to 25 degrees on extension, without ankylosis of the entire thoracolumbar spine, or incapacitating episodes.

2. The Veteran's left shoulder strain was manifested by pain, but without limitation of motion.

3. The Veteran's right wrist strain was manifested by pain, but without limitation of motion.

4. The Veteran does not have a hearing loss disability for VA compensation purposes.


CONCLUSIONS OF LAW

1. The criteria for an initial disability rating in excess of 10 percent for lumbar strain have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237 (2017).

2. The criteria for an initial disability rating of 20 percent, but not greater than, for a service-connected left shoulder disability have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5201 (2017).

3. The criteria for an initial disability rating of 10 percent, but not greater than, for a service-connected right wrist disability have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.59, 4.59, 4.71a, Diagnostic Codes 5215 (2017).

4. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137 (West 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2017).

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2 (2017); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2017). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). 

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.

Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding, see 38 C.F.R. § 4.14 (2017), do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. However, those provisions should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45 (2017).

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2017). However, the evaluation of painful motion as limited motion only applies when the limitation of motion is non-compensable under the applicable diagnostic code. Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Lumbar strain

The General Rating Formula for Diseases and Injuries of the Spine provides the following, in pertinent part: a 10 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. Part 4, including 4.71a (2017).

A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine 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. Id. 

These ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id.

The Veteran is service-connected for a low back disability, diagnosed as a lumbar strain. He was assigned a 10 percent disability rating for his lumbar spine disability from June 12, 2011. The Veteran appealed the initial rating that the RO assigned for this disability. The present appeal is for a disability evaluation higher than 10 percent.

The Veteran contends that his lumbar strain should be rated higher than 10 percent. He endorsed that he is in constant pain more than 5 days per week due to his back which results in decreased work performance and trouble moving out of bed. See August 2013 VA Form 21-4138.

In June 2011, the Veteran was afforded a VA examination for his thoracolumbar lumbar spine disability. Range of motion was measured as the following: flexion 0 to 85 degrees, extension 0 to 25 degrees, right lateral flexion 0 to 30 degrees, right lateral rotation 0 to 30 degrees, left lateral flexion 0 to 30 degrees, and left lateral rotation 0 to 30 degrees. There was no objective evidence of pain on motion. The Veteran did not have the presence of intervertebral disc disease, ankylosis, or neurological abnormalities. The examiner noted no functional loss due to the Veteran's lumbar strain.

The Board finds that a disability rating in excess of 10 percent is not warranted for the Veteran's thoracolumbar spine disability. The Veteran's range of motion, measured as flexion 0 to 85 degrees, warrants a disability rating of 10 percent. The record does not indicate that the Veteran's spine was limited in motion to between 30 and 60 degrees with no functional loss. Additionally, while the Veteran reports pain in his spine, pain is already contemplated in the 10 percent rating assigned.

Left shoulder sprain

Limitation of motion of the arm at the shoulder is rated under Diagnostic Code 5201, which provides a 20 percent rating when the range of motion of the minor arm is limited to shoulder level or midway between the side and shoulder level and a maximum 30 percent evaluation when the range of motion of the minor arm is limited to 25 degrees from the side. 38 C.F.R. § 4.71a (2017).

The Veteran is right-hand dominant; thus, his service-connected left shoulder disability involves his minor upper extremity.

The Veteran contends that his left shoulder strain should receive a compensable rating. He endorsed that he experiences sharp pains once or twice a week which cause him trouble at work. See August 2013 VA Form 21-4138.

In June 2011, the Veteran was afforded a VA examination for his left shoulder disability. The Veteran's left shoulder range of motion was measured as the following: 0 to 175 degrees on flexion, 0 to 175 degrees on abduction, 0 to 85 degrees on internal rotation, and 0 to 85 degrees on left external rotation without evidence of pain on repetitions. The examiner noted no functional loss due to the Veteran's left shoulder strain.

The Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or mal-aligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Court previously indicated that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). However, the Court recently suggested that the plain language of 38 C.F.R. § 4.59 indicates that it is potentially applicable to the evaluation of musculoskeletal disabilities involving joint or periarticular pathology that are painful, whether or not evaluated under a diagnostic code predicated on range of motion measurements. See Correia v. McDonald, 28 Vet. App. 158 (2016); Southall-Norman v. McDonald, 20 Vet. App 346, 354 (2016). In the present case, the Veteran does not have a diagnosis of arthritis as per the language of 38 C.F.R. § 4.59 and his range of motion results would not warrant a compensable rating; however, the Board, guided by these recent Court decisions, liberally construes the regulation to include painful motion on any service connected musculoskeletal disability. Id.  

While the Veteran's range of motion is not limited as per §4.71a, DC 5201 (2017), his reports of pain on motion and his testimony regarding impact at work, which the Board finds credible, warrant consideration under §4.59 (2017). As 20 percent is the minimum compensable rating for the minor upper extremity shoulder joint, the Board finds that, based on subjective reports of pain on motion and flare-ups, a minimum compensable rating of 20 percent, but not greater than, for his left shoulder disability is warranted.

Right wrist sprain

With respect to the major extremity, DC 5215 provides that a 10 percent disability rating is warranted where there is limitation of motion of the wrist manifested by dorsiflexion limited to less than 15 degrees and palmar flexion limited in line with the forearm. This is the maximum possible schedular rating under DC 5215 for both major and minor joints. 38 C.F.R. § 4.71a, DC 5215 (2017).

The Veteran contends that his right wrist strain should receive a compensable rating. He endorsed that he has constant pain in his wrist which causes him difficulty in everyday operations such as writing and normal activities. See August 2013 VA Form 21-4138.

The Veteran is right-hand dominant; thus, his service-connected right wrist disability involves his major upper extremity.

In June 2011, the Veteran was afforded a VA examination for his right wrist disability. The Veteran's right wrist range of motion was measured as the following: 0 to 80 degrees on dorsiflexion, 0 to 70 degrees on palmar flexion, 0 to 20 degrees on radial deviation, and 0 to 45 degrees on ulnar deviation without evidence of pain on repetitions. The examiner noted no functional loss due to the Veteran's right wrist strain.

As mentioned above, the Board has considered painful motion as per Correia at 158 (2016) and Southall-Norman at 354 (2016) for the Veteran's right wrist sprain. While the Veteran's range of motion is not limited as per §4.71a, DC 5215 (2017), his reports of pain on motion, which the Board finds credible, warrant consideration under §4.59 (2017). As 10 percent is the minimum compensable rating for the major upper extremity wrist joint, the Board finds that, based on subjective reports of pain on motion, a minimum compensable rating of 10 percent for his right wrist disability is warranted. A 10 percent disability rating is the maximum evaluation under the schedule; as such, a higher evaluation is not warranted.

II. Service Connection

To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366   (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a).

Presumptive service connection may be granted for "chronic diseases" if the disease manifests to a compensable degree within service or within the presumptive period of one year after separation. 38 C.F.R. § 3.307 (a)(3). Sensorineural hearing loss is categorized as a chronic "organic disease of the nervous system." 38 U.S.C. § 1101; 38 C.F.R. § 3.309 (a). If the chronic disease manifested in service or within the presumptive period, then service connection will be established for subsequent manifestations of the same chronic disease at any date after service, no matter how remote, without having to show a causal relationship or medical nexus, unless the later manifestations are clearly due to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that § 3.303(b) only applies to the chronic diseases listed in § 3.309(a)).

Service connection for a hearing loss disability may not be established unless the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 is 40 decibels or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, or 4000 Hertz are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. §3.385 (2017).

The Veteran contends that he has had hearing difficulties since service. He testified that he was exposed to artillery fire as part of his Military Operational Specialty (MOS). He endorsed that his hearing loss has been documented in his service records. He reported difficulties in hearing instructions during school, work, and in conversations.

The Board notes that the Veteran was denied service connection for bilateral hearing loss because he did not meet the auditory threshold as per 38 C.F.R. §3.385 (2017). Review of his service treatment records are absent for a hearing loss disability as per VA regulations.

The question for the Board is whether the Veteran meets the auditory threshold for bilateral hearing loss; and if so, did the hearing loss manifest during active service or within the one-year presumptive period.

With respect to element (1), a current disability, the Veteran does not have a current hearing loss disability as per C.F.R. §3.385 (2017).

The Veteran was afforded an audiology VA examination in June 2011. The Veteran's pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5
0
0
LEFT
15
10
5
25
25

Speech audiometry revealed speech recognition ability at 96 percent in the right ear. The average decibel loss was 2.5 in the right ear.

Speech audiometry revealed speech recognition ability at 96 percent in the left ear. The average decibel loss was 16.25 in the left ear.

These results indicate that the Veteran does not have a hearing loss disability as per C.F.R. §3.385 (2017).

Without a diagnosed condition, element (1) has not been satisfied for this issue, and service connection is not warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of a present disability, there can be no valid claim). As such, service connection for bilateral hearing loss is not warranted.


ORDER

An initial disability rating in excess of 10 percent for lumbar strain is denied.

An initial disability rating of 20 percent for a left shoulder sprain is granted.

An initial disability rating of 10 percent for a right wrist sprain is granted.

Entitlement to service connection for bilateral hearing loss is denied.




____________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs