Citation Nr: 1824587 Decision Date: 04/25/18 Archive Date: 05/03/18 DOCKET NO. 14-33 003 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial compensable rating from September 17, 2012, to April 18, 2015, and in excess of 10 percent disabling thereafter for Degenerative Disc Disease (DDD) with intervertebral disc syndrome (IVDS), lumbar spine. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Robert A. Elliott II, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2006 to September 2012. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. FINDINGS OF FACT 1. Throughout the appeal period, the most probative evidence shows the Veteran's DDD with IVDS manifested as forward flexion of 75 degrees with physician-prescribed bedrest lasting less than a week. 2. A bilateral hearing loss disability for VA purposes has not been manifested at any time during the pendency of this claim. CONCLUSIONS OF LAW 1. The criteria for 10 percent rating, and no higher, for the entire appeal period have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242-5243 (2017) 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Increased Ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The Veteran is rated under Diagnostic Code 5242-5243, which is assigned using the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, 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. 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. A 40 percent disability 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 disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. In the alternative, an evaluation can be assigned under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Intervertebral disc syndrome is to be evaluated either under the general rating formula for diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever method results in a higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. For intervertebral disc syndrome manifested by incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent evaluation is warranted; with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent evaluation is warranted; with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent evaluation is warranted; and with incapacitating episodes having a total duration of at least one weeks but less than two weeks during the past 12 months, a 10 percent evaluation is warranted. Note 1 of that code provides that, for purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. The Veteran contends that his disability has increased in severity. See September 2014 VA Form 9. In January 2013, the Veteran attended a Back Conditions Disability Benefits Questionnaire (DBQ) examination. The examiner diagnosed IVDS of the lumbar spine, DDD of the lumbar spine, and spina bifuda occulta. The Veteran complained mostly of lower lumbar pains, always present, which interferes with his sleep. However, the sensory exam of the lower extremities was normal. The Veteran reported flare-ups as increased pain to 10 out of 10 at night when he lays down. Upon examination, range of motion (ROM) for the lumber spine was as follows; normal flexion with no objective evidence of painful motion, extension to 0 degrees with no objective evidence of painful motion, normal right lateral flexion with no objective evidence of painful motion, normal left lateral flexion with no objective evidence of painful motion, normal right lateral rotation with no objective evidence of painful motion, and normal left lateral rotation with no objective evidence of painful motion. The Veteran exhibited normal ROM for flexion, extension, bilateral flexion, and bilateral rotation after repetitive use testing. No functional loss and/or functional impairment of the back were noted. Further, no localized tenderness, pain, guarding, or muscle spasms of the back were noted. Muscle strength testing, sensory, and reflexes were normal with no atrophy. Moderate bilateral lower extremity numbness was noted. IVDS was noted but no incapacitating episodes over the past 12 months were indicated. In April 2015, the Veteran attended a VA Back Conditions DBQ. The examiner diagnosed DDD with IVDS, lumbar. No flare-ups were reported by the Veteran. Upon examination, ROM for the lumber spine was as follows; forward flexion to 75 degrees with objective evidence of pain motion at 65 degrees, extension to 10 degrees with evidence of painful motion at 5 degrees, right lateral flexion to 15 degrees with evidence of painful motion at 15 degrees, left lateral flexion to 15 degrees with evidence of painful motion at 15 degrees, right lateral rotation to 15 degrees with evidence of painful motion at 15 degrees, left lateral rotation to 15 degrees with evidence of painful motion at 15 degrees. ROM following repetitive-use testing was flexion to 75 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees. The Veteran had functional loss and/or impairment manifested as less movement than normal, pain on movement, and interference with sitting, standing and/or weight bearing. No localized tenderness, pain, guarding, or muscle spasms of the back were noted. Muscle strength testing, sensory, and reflexes were normal with no atrophy. No radiculopathy was indicated and the examiner further noted that the Veteran reported symptoms that radiate into the extremities; however, there was no radiculopathy found so the etiology of these symptoms was unknown. The Veteran has had incapacitating episodes over the past 12 months due to IVDS lasting less than a week. Finally, the examiner noted that pain could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time, however, an opinion was not feasible because the Veteran was unable to replicate the estimated limitation at the time of examination. The Board finds that for the entire period on appeal, the Veteran is entitled to a 10 percent disability evaluation, but no higher. In other words, the Board finds that the most probative evidence of record reflecting the Veteran's level of lumbar impairment throughout the period on appeal is the April 2015 VA examination. The Board finds that the preponderance evidence supports a finding of entitlement to a 10 percent disability rating for the entire rating period on appeal. The Veteran's symptomatology and impairment have been shown as relatively consistent throughout the entire rating period on appeal. Therefore, the Board finds the evidence of record accurately depicts the Veteran's current disability level, and that staged ratings are not warranted in this case. Further, the medical evidence of record does not note forward flexion greater than 30 degrees, but not greater than 65 degrees, or a combined ROM of the thoracolumbar spine less than 120 degrees, as required for a 20 percent disabling rating under DC 5242. In addition, although there is evidence of an incapacitating episode as defined by DC 5243, there is no evidence of record indicating an incapacitating episode lasting at least two weeks, as required for a 20 percent disability rating under DC 5243. Also, the Board finds the effects of functional loss due to pain and his report of flare-ups are the foundations of the assigned 10 percent disability rating for the whole appeal period. See also Mitchell, supra. Finally, the Board notes that the Veteran is already service-connected for bilateral lower extremity radiculopathy and no other neurological findings in the record have been associated with his back disability. Therefore, the Board finds that entitlement to a rating of 10 percent disabling, but no more, is warranted for the entire appeal period. The preponderance of the evidence, however, is against the assignment of a rating in excess of 10 percent disabling for the Veteran's lumbar spine disability. III. Service Connection In order to obtain service connection the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, i.e., a "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Further, an examination for hearing impairment must meet the four requirements of 38 C.F.R. § 4.85(a). It must be conducted by a state-licensed audiologist, the examination must include a controlled speech discrimination test (Maryland CNC), the examination must include a puretone audiometry test, and the examination must be conducted without the use of hearing aids. The Veteran contends that his hearing loss is the result of noise exposure during active service. See September 2014 VA Form 9. In January 2013, the Veteran attended a Hearing Loss and Tinnitus DBQ. Upon examination, puretone thresholds for the right and left ear, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 20 25 25 HERTZ 500 1000 2000 3000 4000 LEFT 20 15 15 20 20 Further, the examiner noted a Maryland CNC Test score of 96 percent for the right ear and 100 percent for the left ear. This examination is the only clinically valid audiological examination during the appeal period. Following careful review of the evidence of record, the Board finds the preponderance of the evidence is against the Veteran's claim of service connection for bilateral hearing loss disability. The Board appreciates the Veteran's contentions and statements related to his claimed bilateral hearing loss. Even finding that the Veteran was exposed to significant noise in service, there is no evidence that he has been diagnosed with a bilateral hearing loss disability by VA standards at any point during the timeframe on appeal. In this regard, the puretone thresholds and speech recognition results from the above-described VA examination report show some decreased hearing acuity in each ear, but not significant enough to constitute a bilateral hearing loss disability for VA benefits purposes. In other words, the clinically valid audiological examination during the timeframe on appeal did not reveal auditory thresholds of 40 decibels or greater at any of the prescribed auditory thresholds or speech recognition scores of less than 94 percent in either ear. Further, this evaluation did not show at least three auditory thresholds of 26 decibels or greater or a threshold in any one of the frequencies of 40 decibels or greater. The Veteran has been afforded a VA examination in connection with his claim. To the extent there are any deficiencies in the accompanying medical opinions, the Board finds that these are not prejudicial to the Veteran with respect to this claim. As there is no indication of a current disability at any time during the appeal period (September 2012 to present), the medical opinions regarding whether there is a connection between an in-service event and current disability are moot. With respect to the Veteran's contention that he currently has a bilateral hearing loss disability, a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995). However, lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007). Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Degmetich v. Brown, 104 F.3d 1328 (1997). As a layperson, the Veteran is competent to report that he experiences difficulty hearing. However, he is not competent to render a diagnosis of a bilateral hearing loss disability that satisfies the regulatory criteria set forth in 38 C.F.R. § 3.385. Absent competent and reliable evidence of a claimed bilateral hearing loss disability, the Board concludes that the claim of entitlement to service connection for a bilateral hearing loss disability must be denied. The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102. ORDER Entitlement to a 10 percent rating, and no more, is granted for the entire appeal period for DDD with IVDS, lumbar spine. Entitlement to service connection for bilateral hearing loss is denied. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs