Citation Nr: 19106907 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 08-08 653 DATE: January 29, 2019 ORDER A disability rating in excess of 40 percent for degenerative disc disease at L5-S1 with lumbar strain status post laminectomy and fusion (lumbar spine disability), since June 5, 2017, is denied. From February 21, 2007 to March 1, 2016, a separate 20 percent rating for radiculopathy of the left lower extremity is granted, subject to the laws and regulations governing the payment of monetary benefits. A compensable disability rating for bilateral hearing loss is denied. REMANDED Entitlement to an initial disability rating in excess of 20 percent for lumbar spine disability, prior to June 5, 2017, is remanded. Entitlement to a separate rating in excess of 20 percent for radiculopathy of the left lower extremity is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU), prior to December 1, 2015, is remanded. FINDINGS OF FACT 1. Since June 5, 2017, the Veteran’s lumbar spine disability has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 2. Since February 21, 2007, the Veteran’s radiculopathy of the left lower extremity most nearly approximates at least moderate incomplete paralysis. 3. The Veteran’s bilateral hearing loss is manifested by no worse than level II hearing on the right and level II hearing on the left. CONCLUSIONS OF LAW 1. Since June 5, 2017, the criteria for assignment of a disability rating in excess of 40 percent for service-connected lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5235-5243. 2. From February 21, 2017 to March 1, 2016, the criteria for a separate 20 percent rating for radiculopathy of the left lower extremity were met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, DC 8520. 3. The criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1976 to November 1979. This matter comes before the Board from rating decisions in September 2007 and January 2010. In December 2015, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). In March 2016, the case remanded for additional development, to include affording the Veteran the requested Board hearing with respect to service connection for a left knee disorder. As the Veteran appeared at a Board hearing before a different VLJ in October 2018 with respect to the issue of service connection for a left knee disorder, the issue will be the subject of a separate Board decision. In an April 2016 rating decision, service connection was granted for migraines; traumatic brain injury; degenerative arthritis of the right and left rotator cuff with tendonitis and acromioclavicular joint osteoarthritis; osteoarthritis of the right knee with a bone spur and effusion; tinnitus; and benign paroxysmal vertigo. This represents a full grant of the benefits sought with respect to those issues. In a July 2017 rating decision, service connection was granted for a residual surgical scar of the lumbar spine. This represents a full grant of the benefit sought with respect to that issue. The July 2017 rating decision also shows the rating for radiculopathy of the left lower extremity associated with the service-connected lumbar spine disability was increased to 20 percent, from March 1, 2016. As the increase did not satisfy the appeal in full, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The decision below addresses an intermediary action regarding the rating for radiculopathy of the left lower extremity. The remainder of the appeal with respect to that issue is addressed in the remand section. Further, in addition to Dependents’ Educational Assistance awarded in the July 2017 rating decision, a TDIU was granted, from December 1, 2015, based on a combination of the Veteran’s service-connected disabilities. However, the issue concerning a TDIU prior to that date remains on appeal before the Board, as the TDIU claim was raised as part of the increased rating claims. See Harper v. Wilkie, No. 16-3519 (U.S. Vet. App. Dec. 6, 2018). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). The Board notes that the Veteran’s submissions in October 2018 are duplicative of evidence already of record. Increased Ratings I. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, 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. 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 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3. Under the General Rating Formula for Diseases and Injuries of the Spine (for diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes): 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: Unfavorable ankylosis of the entire spine is rated as 100 percent. Unfavorable ankylosis of the entire thoracolumbar spine is rated as 50 percent. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine is rated as 40 percent. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 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 is rated as 20 percent. 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, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 is rated as 10 percent. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Disabilities of the spine involving intervertebral disc syndrome (IVDS) are assigned under DC 5243, which provides that the disability is to be rated either under the General Rating Formula or alternatively under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in a higher evaluation. See 38 C.F.R. § 4.71a, Note. The rating schedule for IVDS is as follows. Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes: With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warrants a 60 percent rating. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, warrants a 40 percent rating. With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrants a 20 percent rating. With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months, warrants a 10 percent rating. Note (1): 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. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. The left lower extremity rating is evaluated under DC 8520, which pertains to the sciatic nerve. The DC provides for 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. Complete paralysis of the sciatic nerve (where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or lost), warrants the highest rating of 80 percent. The term “incomplete paralysis” indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury; the relative impairment in motor function; trophic changes; or sensory disturbances. 38 C.F.R. § 4.120. Disability evaluations for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Examinations are conducted using the controlled speech discrimination tests together with the results of the pure tone audiometry test. See 38 C.F.R. § 4.85. The results are analyzed using tables contained in 38 C.F.R. § 4.85, DC 6100. The rating schedule for hearing loss provides that evaluations of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second (Hertz). To evaluate the degree of disability from defective hearing, the rating schedule established eleven auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85, DC 6100. II. Analysis 1. A disability rating in excess of 40 percent for lumbar spine disability, since June 5, 2017. In this case, a rating higher than 40 percent is denied because the evidence does not show unfavorable ankylosis of the entire thoracolumbar spine. The most recent VA spine examination was conducted in June 2017 pursuant to the Board’s remand, and was the basis upon which the increase to 40 percent was granted. It is the most probative evidence to this rating period. The examination report reflects diagnoses of lumbosacral strain and degenerative arthritis of the spine, with forward flexion to 30 degrees. No bowel or bladder problems were reported, and separate ratings have been assigned for associated radiculopathy of the left lower extremity and a surgical scar of the lumbar spine. The Board notes that although an April 2016 VA examination report reflects that the Veteran underwent mechanical fusion of L3-S1 and laminectomy in 2008, and that the Veteran walked in flexion at the lumbar spine with a cane due to pain, forward flexion was 45 degrees and both the April 2016 and June 2017 VA examiners specifically reported no ankylosis. The Veteran’s symptoms do not constitute unfavorable ankylosis of the entire thoracolumbar spine as defined in Note (5). 38 C.F.R. § 4.71, DC 5237. In addition, private records in October 2009 note no deformity or scoliosis of the thoracic or lumbar spine. Moreover, the current 40 percent rating fully contemplates all functional loss, including during flare-ups of pain, weakness, fatigability, lack of endurance, or incoordination in accordance with 38 C.F.R. §§ 4.40, 4.45, and 4.59. The Board notes that although the VA examinations may not contain all the necessary findings to evaluate the Veteran’s loss of function, including on weight bearing and during flare-ups, a higher rating cannot be assigned regardless of these findings absent unfavorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, DC 5237; see also Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). Accordingly, remand for a new VA examination is not needed pursuant to Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017), and Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Additionally, a new VA examination is not warranted as there is no indication the disability worsened to the point of ankylosis. The current evidence is sufficient to decide the claim, from June 5, 2017. Further, and although not bound by a determination of the Social Security Administration (SSA), see Collier v. Derwinski, 1 Vet. App. 413, (1991); see also Martin v. Brown, 4 Vet. App. 136, 140 (1993), the Board notes that the records from the SSA reflect disability due to a back disorder since 2007. The records, however, do not show unfavorable ankylosis of the entire thoracolumbar spine. The records note that the Veteran was able to lift 10 pounds. There were also not incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. The VA medical records do not show bed rest prescribed by a physician. It is reasonable to assume that prescribed bedrest would have been recorded if present because the medical records appear complete and otherwise contain all diagnostic results, recommendations, and prescriptions. See, e.g., AZ v. Shinseki, 731 F.3d 1303, 1315-18 (Fed. Cir. 2013). To conclude, the Board finds that the Veteran’s disability picture and symptomatology, taken as a whole and in combination with the subjective and objective evidence, has not more nearly approximated the criteria for a higher rating at any time since June 5, 2017. See 38 C.F.R. § 4.7. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, since June 5, 2017, a rating higher than 40 percent is not warranted for the service-connected lumbar spine disability. Although the Board is remanding the other claims for additional development, remand is not necessary for the lumbar spine disability claim, as there is no reasonable possibility that further assistance would substantiate this claim. See 38 38 C.F.R. § 3.159(d). 2. A separate rating for radiculopathy of the left lower extremity, rated as 10 percent disabling, prior to March 1, 2016. The Veteran has been awarded a separate 10 percent rating for radiculopathy of the left lower extremity associated with his service-connected lumbar spine disability. This was based on an October 30, 2009 VA examination conducted in association with the Veteran’s February 21, 2007 increased rating claim for his lumbar spine disability. The Board notes that the rating criteria for the service-connected lumbar spine disability expressly include separately rating associated neurologic abnormalities, such as radiculopathy. In addition, the effective date for an increased rating is predicated on when the increase in the level of disability can be factually ascertained and not necessarily the date the evidence is created. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015). The Board finds that radiculopathy of the left lower extremity is shown since the date of the claim in February 2007. Although the October 2009 VA examination may have been the first instance of “objective” medical evidence of radiculopathy, VA treatment records in March 2008 include an October 2000 notation of a history of back and left leg pain with intermittent paresthesias for several years, assessed as back pain with radicular features. In addition, a May 2007 VA examination report reflects paresthesias and/or dysesthesias involving the sciatic nerve of the left lower extremity. Further, private treatment records in September 2007 reflect the impression of magnetic resonance imaging (MRI) of the lumbar spine was multilevel lumbar spondylosis and degenerative facet arthropathy with associated multilevel neural foraminal narrowing. In addition, private records in April 2008 note the Veteran’s complaints of back pain radiating to the left leg, foot, and heel with some numbness and tingling noted in the same distribution. Moreover, a January 2008 laminectomy and fusion operative report notes the Veteran’s history of long-term back and leg pain. Therefore, the Board finds that, since February 21, 2007, the Veteran’s service-connected lumbar spine disability has manifested in at least moderate radiculopathy of the left lower extremity. Thus, a separate 20 percent rating is warranted for the entire claim period. The issue of whether a separate rating for radiculopathy of the left lower extremity in excess of 20 percent remains on appeal and is addressed in the remand section. This intermediary grant of benefits will not prejudice the Veteran. 3. A compensable rating for bilateral hearing loss. The Veteran seeks a higher rating for bilateral hearing loss. He maintains that a compensable rating is warranted. A June 2008 VA audiological examination report notes bilateral high frequency sensorineural hearing loss. The report reflects the following pure tone thresholds, in decibels: HERTZ 1000 2000 3000 4000 RIGHT 15 15 10 30 LEFT 20 25 30 25 The average pure tone threshold was 18 (rounded) in the right ear and 25 in the left ear. The speech discrimination score was 100 percent in each ear. The results correspond with level I hearing on the right and level I hearing on the left for which a noncompensable rating is warranted. The October 2009 VA examination report notes that audiometric thresholds were not adequate for rating purposes and could not be obtained despite repeated instruction. A July 2010 VA audiology notes that although hearing loss was reported in the June 2008 VA examination report, the Veteran’s hearing was normal hearing in each ear based on audiogram. Speech recognition was reported as excellent bilaterally. No need for hearing aids was noted. The October 2012 audiological examination report reflects the following pure tone thresholds, in decibels: HERTZ 1000 2000 3000 4000 RIGHT 15 20 10 15 LEFT 10 20 20 25 The average pure tone threshold was 15 in the right ear and 19 (rounded) in the left ear. The speech discrimination score was 100 percent in the right ear and 96 percent in the left ear. The results correspond with level I hearing on the right and level I hearing on the left for which a noncompensable rating is warranted. A September 2017 audiological examination was conducted pursuant to the Board’s remand. The report notes sensorineural hearing loss, bilaterally, and reflects the following pure tone thresholds, in decibels: HERTZ 1000 2000 3000 4000 RIGHT 40 40 35 40 LEFT 35 45 40 50 The average pure tone threshold was 39 in the right ear and 42 in the left ear. The speech discrimination score was 90 percent in the right ear and 88 percent in the left ear. The results correspond with level II hearing on the right and level II hearing on the left for which a noncompensable rating is warranted. The Board notes that although the Veteran has hearing loss, ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Moreover, both September 2017 VA and October 2012 VA examination reports note the functional impact of the Veteran’s bilateral hearing loss on ordinary conditions of daily life, including the ability to work, was difficulty hearing conversation in a crowd/family gatherings and hearing sermons at church. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Board notes that the Veteran is service connected for tinnitus, rated as 10 percent disabling, and that specific condition is not on appeal. The Board has considered the benefit-of-the-doubt rule. However, all of the VA examinations showing at worst, level II hearing in each are the most probative evidence for the claim. Because the preponderance of the evidence is against the Veteran’s claim for a compensable rating, the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107(b); 38 38 C.F.R. §§ 3.102, 4.3. Therefore, a compensable rating for bilateral hearing loss is not warranted. Although the Board is remanding other claims for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d).   REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 20 percent for lumbar spine disability, prior to June 5, 2017, is remanded. 2. Entitlement to a separate rating in excess of 20 percent for radiculopathy of the left lower extremity is remanded. The Veteran seeks a rating in excess of 20 percent for service-connected degenerative disc disease at L5-S1 with lumbar strain status post laminectomy and fusion, prior to June 5, 2017, and a rating in excess of 20 percent for associated radiculopathy of the left lower extremity. The Veteran should be scheduled for a new VA examination to assess the severity of the service-connected lumbar spine disability prior to June 5, 2017, to include complying with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), as well as the severity of the associated radiculopathy of the left lower extremity. The Board notes that although the June 2017 VA examination reflects that radiculopathy of the left lower extremity is moderate, the report of examination does not address the findings of absent tendon reflexes at the knee and ankle, absent sensation to vibratory stimulation of the foot, and diminished sensation to pinprick of the left foot reported in the June 2008 VA examination report, or the Veteran’s testimony as to impaired balance due to radiculopathy resulting in falls. Thus, the opinion in that respect is not completely adequate. Prior to the examination, any outstanding records of pertinent medical treatment must be obtained and added to the record. 3. Entitlement to a TDIU, prior to December 1, 2015. The issue of entitlement to a TDIU, prior to December 1, 2015 remains on appeal. Although an October 2017 letter from the Director, Compensation Service, reflects an opinion that a TDIU is not warranted on an extraschedular basis prior to December 1, 2015, the appeal for a TDIU is intertwined with the remanded issues because the outcome of those issues may impact whether a TDIU is assignable on a schedular basis, prior to December 1, 2015. Thus, the issue is also remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to assess the severity of the service-connected radiculopathy of the left lower extremity. Additionally, a retrospective assessment/opinion should be provided as to the lumbar spine disability prior to June 5, 2017. The opinion should estimate for the period prior to June 5, 2017, the amount in degrees of range of motion lost due to pain in weight-bearing and nonweight-bearing positions, and on both active and passive motion. The opinion should also estimate the amount in degrees of range of motion lost due to flare-ups for that time period. If the examiner cannot provide some or all such retrospective opinions, the examiner must make clear that he or she has considered all relevant, procurable data, but that any member of the medical community at large could not provide such an opinion without resorting to speculation. (Continued on the next page)   A rationale should be provided for any opinion rendered. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Taylor