Citation Nr: 19129182 Decision Date: 04/15/19 Archive Date: 04/15/19 DOCKET NO. 14-32 294A DATE: April 15, 2019 ORDER A rating of 10 percent for degenerative disc disease of the lumbar spine from August 15, 2013, to March 26, 2014, is granted. REMANDED Entitlement to a higher rating for bilateral hearing loss, currently rated as noncompensable, is remanded. FINDING OF FACT From August 15, 2013, to March 26, 2014, there is objectively confirmed evidence of painful motion due to degenerative arthritis of the lumbar spine. CONCLUSION OF LAW From August 15, 2013, to March 26, 2014, the criteria for a rating of 10 percent for DDD of the lumbar spine have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code (DC) 5003. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1986 to December 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2014 and January 2017 rating decisions. The March 2014 rating decision relates to the issue of a higher rating for the lumbar spine. The January 2017 rating decision relates to the issue of a higher rating for bilateral hearing loss. The Board previously considered the issue of a higher rating for the Veteran’s lumbar spine disability in an April 2018 decision. In it, the Board denied higher ratings for the Veteran’s lumbar spine disability. More specifically, the Board denied an initial compensable rating from August 15, 2013, to March 26, 2014, a rating higher than 10 percent for the period from March 27, 2014, to May 10, 2017, and a rating higher than 40 percent for the period since May 11, 2017. See 04/20/2018, BVA Decision. The Veteran appealed the April 2018 Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2018 Joint Motion for Partial Remand, both parties, the Veteran and the VA Secretary, moved the Court to vacate that part of the April 2018 Board decision that denied an initial compensable rating from August 15, 2013, to March 26, 2014 for the Veteran’s lumbar spine. The parties agreed that the Court should dismiss the appeal with respect to the Board’s decision to deny a rating higher than 10 percent for the period from March 27, 2014, to May 10, 2017, and a rating higher than 40 percent for the period since May 11, 2017. The Court granted the parties’ joint motion for partial remand in an order dated December 2018. See 12/19/2018, CAVC Decision. Therefore, regarding the Veteran’s service-connected lumbar spine disability, the only issue currently on appeal is whether the Veteran is entitled to an initial compensable rating from August 15, 2013, to March 26, 2014. Regarding the issue of a higher rating for bilateral hearing loss, the January 2017 rating decision denied a compensable rating for this disability. The Veteran appealed via a March 2017 notice of disagreement. Thereafter, a July 2017 rating decision granted a higher rating of 10 percent, effective April 5, 2016, but reassigned a noncompensable rating from January 5, 2017, forward. Entitlement to an initial compensable rating for degenerative disc disease of the lumbar spine from August 15, 2013, to March 26, 2014. For the period from August 15, 2013, to March 26, 2014, the Veteran’s lumbar spine disability, characterized as degenerative disc disease, is rated as noncompensable under DC 5243 (intervertebral disc syndrome). For the reasons explained below, the Board finds that the Veteran is entitled to a minimum compensable rating of 10 percent during the period on appeal. Spine disabilities are to be evaluated under either General Rating Formula of Diseases 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. 38 C.F.R. § 4.71a. Under the General Rating Formula of Diseases and Injuries of the Spine, the minimum compensable rating of 10 percent requires evidence of 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. Id. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the minimum compensable rating of 10 percent requires evidence of incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. Id. A February 2014 VA examination found the Veteran to have 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of lateral flexion in each direction, and 30 degrees of lateral rotation in each direction with no evidence of painful motion in any of these movements. The Veteran was also found to have no additional loss of range of motion after repetitive use testing and the examiner reported that the Veteran did not have spasm, guarding, or localized tenderness or pain to palpation. He had flare-ups that, as described by the Veteran, resulted in pain with prolonged lifting, bending, and standing. These results are consistent with a private examination report from September 2013. Neither of the physicians who examined the Veteran in that period found any limitation in flexion or extension of the Veteran’s spine and there are no competent reports by a treating or examining medical professional suggesting the Veteran had any abnormal spinal contours. The examination findings also indicate that the Veteran had greater than 235 degrees of combined range of motion in his thoracolumbar spine without muscle spasm, guarding, or localized tenderness. The record is also devoid of any competent evidence for the period prior to March 27, 2014, that the Veteran’s DDD caused any incapacitating episodes due to IVDS or that the Veteran had a vertebral body fracture with loss of 50 percent or more of the height. Based on the abovementioned evidence, the Board finds that a compensable rating for the Veteran’s lumbar spine disability is not warranted under either General Rating Formula of Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Notwithstanding the above, the Board finds that a compensable rating is warranted under the rules applicable to arthritis. The February 2014 VA examination shows arthritis in the thoracolumbar spine, confirmed by diagnostic imaging. Under DC 5003 and 38 C.F.R. § 4.59, a minimum compensable rating is warranted when there is objectively confirmed evidence of painful motion caused by degenerative arthritis (where the arthritis is established by x-ray and actual limitation of motion, if any, is not compensable under the applicable diagnostic code). See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991) (holding that painful motion of a major joint or group of minor joints caused by degenerative arthritis is deemed to be limited motion such that a minimum compensable rating is warranted under 5003 even though there is no actual limitation of motion); see also Petitti v. McDonald, 27 Vet. App. 415, 425 (2015) (explaining that § 4.59 “serves as a bridge linking painful motion and limitation of motion, with the result that a claimant who has painful motion is considered to have limited motion under DC 5003 even though actual motion is not limited”). Regarding the requirement that the painful motion be objectively confirmed, the Court has indicated that this criterion may be shown by lay evidence. See Petitti, 27 Vet. App. at 427-28 (holding that painful motion may be “objectively confirmed” by either a clinician or a layperson who witnessed the veteran experience difficulty walking, standing, or sitting, or display a facial expression, such as wincing, indicative of pain). In this case, the Veteran has reported a history of back pain. Additionally, at a private examination in September 2013, the Veteran reported worsening low back pain, described as severe, burning, and constant. The physician also stated that pain was worse with bed rest, sitting, standing, bending, walking, and physical activity. That same month, a different physician also documented worsening back pain and numbness. Additionally, in an October 2013 statement, the Veteran’s wife explained that she had seen a progression in the Veteran’s back pain in the 23 years that she had been with him and that the Veteran at that time could no longer walk any distance or stand in one place longer than roughly 10 minutes. The statement from the Veteran’s wife confirms the Veteran’s reports of back pain. As already mentioned, lay evidence can serve to meet the requirement that complaints of painful motion be objectively confirmed. The Veteran’s wife is competent to report her observations of her husband’s difficulties due to his arthritis of the lumbar spine, and there is no reason to believe that her statement in this regard is not credible. Rather, it is consistent with the symptoms and difficulties reported by the Veteran while seeking treatment for his back. As the difficulties reported by the Veteran and observed by his wife are indicative of pain, the Board finds that there is sufficient objectively confirmed evidence of painful motion to warrant a rating of 10 percent under DC 5003 and 38 C.F.R. § 4.59 from August 15, 2013, to March 26, 2014.   REASONS FOR REMAND Entitlement to a higher rating for bilateral hearing loss is remanded. The Veteran seeks a higher rating for his service-connected bilateral hearing loss. See 12/09/2016, Fully Developed Claim. As mentioned in the introduction, a July 2017 rating decision assigned staged rating for the period on appeal. It assigned a 10 percent rating from April 5, 2016 . However, it reassigned a noncompensable rating for the period thereafter. The rating of 10 percent was based on an April 2016 private examination, whereas the subsequent noncompensable rating was based on a January 2017 VA examination. In an August 2018 statement, the Veteran reiterated that his hearing loss has progressively worsened since service. Significantly, he pointed to some disparity in the way the April 2016 and January 2017 examinations were conducted. He suggested that the January 2017 VA audiologist did not provide instructions for the speech discrimination test as clearly as the April 2016 audiologist. The April 2016 examination shows speech discrimination scores of 84 percent for both ears, while the January 2017 VA examination shows scores of 100 percent for both ears. This discrepancy is noteworthy and supports the Veteran’s suggestion that the January 2017 VA examination does not provide an accurate portrait of the current severity of his bilateral hearing loss. The Veteran indicated he willingness to report for another examination/audiogram. In view of this, the Board finds that the appropriate course of action is to remand for a new VA examination. (Continued on the next page)   The matter is REMANDED for the following action: Schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss, to include a description of the functional impacts of his hearing loss. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. López, Associate Counsel