Citation Nr: 20006282 Decision Date: 01/28/20 Archive Date: 01/24/20 DOCKET NO. 14-20 627 DATE: January 28, 2020 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. Entitlement to a rating higher than 20 percent for service-connected degenerative disc disease of the lumbar spine prior to June 6, 2014, is denied; a 20 percent rating, but no higher, from June 6, 2014 to February 25, 2016, is granted; a rating higher than 20 percent from February 26, 2016 to October 18, 2017, is denied; a rating of 40 percent, but no higher, from October 19, 2017, is granted. FINDINGS OF FACT 1. At worst, the Veteran has demonstrated Level III hearing acuity in the right ear and Level II hearing acuity in the left ear. The remaining evidence of record does not show manifestations of hearing loss worse than that noted on VA examination. These hearing acuities are consistent with a noncompensable rating. 2. Prior to October 19, 2017, the Veteran’s lumbar spine disability picture most nearly approximated forward flexion greater than 30 degrees, but not greater than 60 degrees. Since October 19, 2017, the date of the Veteran’s Board hearing where he described a worsening of symptoms, the Veteran’s disability picture has most nearly approximated forward flexion of 30 degrees or less. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for entitlement to a rating higher than 20 percent for service-connected degenerative disc disease of the lumbar spine prior to June 6, 2014, have not been met; criteria for entitlement to a rating of 20 percent from June 6, 2014 to February 26, 2016, have been met; the criteria for entitlement to a rating higher than 20 percent from February 26, 2016 to October 18, 2017, have not been met; the criteria for entitlement to a 40 percent rating from October 19, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1969 to February 1973. He testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in October 2017. A transcript of the hearing is of record. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 1. Entitlement to a compensable rating for bilateral hearing loss. Ratings for hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has 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(h), Table VI. To establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenman v. Principi, 3 Vet. App. 345 (1992). The rating criteria for hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Specifically, when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment is determined from either Table VI or Table VIA, whichever results in the higher numerical. 38 C.F.R. § 4.86(b). That numeral will then be elevated to the next higher Roman numeral, and then each ear will be evaluated separately. Id. The Veteran contends that his hearing loss is more severe than is currently contemplated by his noncompensable rating. VA prescribed him hearing aids, which he believes should warrant a compensable rating. However, when considering all of the evidence of record, the Board finds that at no point during the appeal period has the Veteran met the criteria for a compensable rating for his bilateral hearing loss. At worst, the Veteran has demonstrated level III hearing acuity in his right ear and level II hearing acuity in his left. On the authorized audiological evaluation in March 2018, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 50 50 70 75 LEFT 40 40 50 70 70 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 96 percent in the left ear. On the authorized audiological evaluation in March 2011, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 55 60 LEFT 20 25 30 55 55 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 84 percent in the left ear. In addition to the VA examinations of record, there are a voluminous amount of VA treatment records associated with the Veteran’s claims file. These records do not contain hearing acuity findings that would warrant a compensable rating. Although the Veteran’s hearing loss has in fact worsened during the appeal period, even in its worsened state, it is still not of the severity to warrant a compensable rating. Applying the average pure tone thresholds and speech recognition abilities into Table VI reveals the highest numeric designation of hearing impairment is Level III in the right ear and Level II in the left. 38 C.F.R. § 4.85. Table VIA is not applicable because the examiners did not indicate that speech discrimination testing was inappropriate for the Veteran, and the examination report did not show the Veteran’s thresholds to be 55 decibels or more at each of the four specific frequencies (1000, 2000, 3000, and 4000 Hertz), or that his pure tone threshold was 30 or lower at 1000 Hertz and 70 or more at 2000 Hertz. See 38 C.F.R. §§ 4.85(c), 4.86(a). Entering the category designation of Level III for the right ear and Level II for the left ear, results in a zero percent evaluation under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII. The Board acknowledges the functional impairments described by the Veteran with regarding his to his hearing loss. He has reported difficulty understanding normal speech, especially when background noise is present. He experiences intermittent “static,” cannot understand conversations on the phone, and often finds himself asking others to repeat themselves, especially in a crowd or a noisy place. However, the assignment of disability ratings for hearing impairment is derived from a mechanical formula. The Court has held that the rating criteria in this case contemplates the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are the effects that VA’s audiometric tests are designed to measure. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017). Because the mechanical application of the rating criteria does not yield a compensable rating for the Veteran’s level of hearing loss throughout the appeal period, his appeal for a higher rating for his bilateral hearing loss must be denied. 2. Entitlement to a rating higher than 20 percent for service-connected degenerative disc disease of the lumbar spine prior to June 6, 2014; a rating higher than 10 percent from June 6, 2014 to February 26, 2016, a rating higher than 20 percent from February 26, 2016 to April 1, 2018; and a rating higher than 40 percent thereafter. The Veteran’s service-connected low back disorder has been rated as 20 percent disabling prior to June 6, 2014, 10 percent disabling from June 6, 2014 to February 26, 2016, 20 percent disabling from February 26, 2016 to April 2, 2018, and 40 percent disabling since April 2, 2018. His disability is rated under Diagnostic Code 5243. Lumbar spine disabilities may be rated on the basis of limitation of motion, with evaluations assigned under the General Rating Formula for Diseases and Injuries of the Spine. A note following the schedule criteria indicates that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note 2. Diagnostic Codes 5235-5243. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted for disability of the thoracolumbar spine when there is 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 evaluation is warranted for disability of the thoracolumbar spine when there is 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. An evaluation higher of 40 percent is not warranted unless there is forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 or greater requires unfavorable ankylosis of the entire thoracolumbar spine. Note 1 to this rating schedule states that any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under appropriate diagnostic codes. In this instance, a May 2019 rating decision granted service connection for bilateral lower extremity radiculopathy. Each lower extremity is rated as 20 percent disabling effective April 2, 2018. In a fairly recent memorandum decision, the Court of Appeals for Veterans Claims (CAVC), held that although a Veteran is presumed, by virtue of his appeal of the RO’s initial denial of an increased rating for his lower back disability, to have been seeking the maximum benefit allowed by law for that disability, “that presumption did not sweep up the jurisdictionally separate radiculopathy claim into his appeal of the increased low back evaluation.” Put simply, the Veteran is required to file a separate notice of disagreement (NOD) as to the ratings for his bilateral lower extremities if he wishes to initiate appellate review. A review of the record does not show that he has filed a NOD as to these issues. As such, the Board will not address the propriety of the ratings or effective dates assigned for the Veteran’s bilateral lower extremity radiculopathy. In addition to the General Rating Formula for Diseases and Injuries of the Spine, 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 (IVDS) 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. Although pain may cause a functional loss, pain itself does not constitute functional loss. Rather, 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. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). At the outset, the Board notes that although the Veteran experiences IVDS, he has not contended, nor does the evidence show, that he was prescribed bedrest for his back at any point during the appeal period. The Veteran’s VA treatment records document complaints of pain related to the low back as well as epidural steroid injections. See e.g. February 2018 VA Treatment Records. VA treatment records from March 29, 2011 show that he had flexion to 60 degrees, extension to 15 degrees, bilateral lateral bending to 40 degrees, and bilateral lateral rotation to 55 degrees. Painful motion was noted on all planes of motion. Gait was slow and careful. VA treatment records from May 24, 2012 show that on range of motion testing, he had flexion to 45 degrees, extension to 20 degrees, bilateral lateral bending to 30 degrees, and bilateral lateral rotation to 20 degrees. Painful motion was noted in extension and during bilateral lateral bending. On VA examination in March 2011, the Veteran reported limitation in walking because of his spine and bilateral foot pain. He had falls as a result of his back and experienced stiffness, but did not have fatigue, spasms or decreased motion. He did not have any bowel or bladder incontinence. He had constant pain which travelled to the upper back. He reported his pain level as being “severe.” The pain was exacerbated by physical activity and relieved by painkillers. During painful episodes, he could function with medication. During flare-ups, he experienced functional impairment, which he described as pain, weakness, loss of speed and limitation of motion. His back had not resulted in any incapacitation. On range of motion testing, there was no evidence of radiating pain on movement. Muscle spasm was absent and there was no tenderness or guarding of movement. The examination did not reveal any weakness and muscle tone was normal. He had flexion to 65 degrees; extension to 20 degrees; bilateral lateral flexion to 20 degrees, and bilateral rotation to 20 degrees. He was able to perform repetitive use testing with no additional loss of motion. Inspection of the spine revealed normal head position with symmetry in appearance. There was symmetry of spinal motion with normal curves of the spine. There were no signs of lumbar intervertebral disc syndrome with chronic and permanent nerve root involvement. On June 6, 2014, VA treatment records show that the Veteran had forward flexion to 75 degrees, extension to 20 degrees, bilateral lateral bending to 30 degrees, and bilateral lateral rotation to 30 degrees. Painful motion was not found. On January 9, 2015, he demonstrated flexion to 70 degrees, extension to 30 degrees, bilateral lateral bending to 20 degrees, and bilateral lateral rotation to 30 degrees. Painful motion was found. On February 26, 2016, VA treatment records show that the Veteran had flexion to 50 degrees, extension to 25 degrees, bilateral lateral rotation to 45 degrees. October 2016 records show extension to 20 degrees, bilateral lateral bending to 30 degrees, and bilateral lateral rotation to 30 degrees. Forward flexion range of motion measurements were not noted. At his Board hearing in October 2017, the Veteran reported that his service-connected low back disability had worsened. He reported being heavily dependent on the assistance of his walker and that he had fallen several times due to his lumbar spine. As a result, the Veteran was afforded a VA examination to determine the current severity of his low back disorder in April 2018. On examination, he described having pain in his low back as well as his back wanting to “give away, this is the reason my doctor gave me a walker to use for long distance walking.” He described flare-ups of the lumbar spine which included severe, 9-10 pain, one to two times every six months. During these times, the Veteran stated, “it keeps me from doing anything, I have to get in a recliner or lay down in bed.” Although IVDS was noted, he did not have any incapacitating episodes requiring bedrest prescribed by a physician. Range of motion testing revealed forward flexion to 30 degrees, extension to 25 degrees; bilateral lateral flexion to 30 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 25 degrees. Pain was noted on forward flexion, extension, bilateral lateral flexion, and bilateral lateral rotation. Repetitive use testing showed no additional loss of motion. Guarding of the spine severe enough to result in abnormal gait or abnormal spine contour was noted. When considering all of the evidence of record, the Board finds that a 20 percent rating, but no more, is warranted for the entire period prior to October 19, 2017, the date of the Veteran’s Board hearing where he described an increase in the severity of his symptoms. A 40 percent rating, but no higher, thereafter is warranted. As noted above, prior to October 19, 2017, at worst, the Veteran demonstrated flexion to 45 degrees. Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Even considering the Veteran’s subjective complaints of pain, the medical evidence of record does not show any additional limitation of motion or functional impairment that would support a rating in excess of the 20 percent rating prior to October 19, 2017. Indeed, the effects of functional loss due to pain are the foundations of the currently assigned 20 percent disability rating. The Board acknowledges that during the period from June 6, 2014 to February 26, 2016, the Veteran’s range of motion was consistent with a 10 percent rating. However, the Board notes that evidence relating to range of motion measurements between these time periods is nonexistent. Put differently, the rating criteria is meant to compensate the Veteran for the average impairment in earning capacity resulting from diseases and injuries. That is to say, it is reasonable to assume that at some points the Veteran’s low back disability will increased in severity and also decrease in severity. This is demonstrated by the Veteran’s reports regarding flare-ups of pain which impact his range of motion. The evidence does not clearly show that the Veteran’s low back had improved to warrant a 10 percent rating during the time period from June 6, 2014 to February 26, 2016. As such, a 20 percent rating would more accurately reflect the Veteran’s disability picture for this time period. Similarly, a higher rating is not warranted at any time prior to October 19, 2017, because the evidence does not demonstrate that the Veteran’s low back disability, although painful, caused function loss of flexion to 30 degrees or less. Indeed, as noted above, at worst, he demonstrated flexion to 45 degrees. This accounted for functional loss caused by pain. In addition, at no point was the Veteran’s lumbar spine noted to be ankylosed. As such, a rating higher than 20 percent for the Veteran’s service-connected low back disability is not warranted prior to October 19, 2017. However, the Veteran was afforded a Board hearing on October 19, 2017. He described that his low back disability had increased in severity. This was later confirmed by an April 2018 VA examination. Thus, the Board finds that October 19, 2017, is the proper date for the 40 percent rating currently assigned for his low back disability. In order to warrant a rating higher than 40 percent for a lumbar spine disability, the Veteran would have to demonstrate that he had unfavorable ankylosis of the thoracolumbar spine or the entire spine. As much was not demonstrated at any time during the appeal period, as demonstrated by the Veteran’s various range of motion measurements. The Board acknowledges that the April 2018 VA examiner did not attempt to estimate the loss of range of motion due to flare-ups of the Veteran’s low back disability. Instead, he stated “it is not possible to determine, without resorting to mere speculation, to estimate loss of range of motion, because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions.” The report does not reflect that the examiner attempted to elicit this information from the Veteran himself consistent with ¬Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, the provisions of 38 C.F.R. §§ 4.40 and 4.45 only apply when a diagnostic code is predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7, 9 (1996). Put differently, the only way to warrant a higher rating in this case would be to show actual ankylosis. Additional discussion regarding flare-ups would not be helpful as even with reports of additional loss of motion, ankylosis would still not be demonstrated. As such, it would serve no useful purpose to the Veteran to remand for additional opinion as ankylosis must be objectively shown. To the extent that the Veteran has asserted that his symptoms are more severe than contemplated by his ratings, the Board notes that he is competent to state what he experiences. For example, he is competent to discuss current pain and other experienced symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds that the totality of the evidence indicates a 20 percent rating prior to October 19, 2017, and a 40 percent rating thereafter, appropriately compensates his symptoms. These ratings compensate for, inter alia, pain, loss of motion, and functional loss causing the Veteran to use assistance equipment such as a cane. The Board concludes that the medical findings on examinations and in the Veteran’s VA treatment records, which were contemporaneously kept, are of greater probative value than the Veteran’s allegations regarding the severity of his disability. The symptomatology noted in the medical and lay evidence has been adequately addressed by the rating assigned and do not more nearly approximate the criteria for a higher rating. For these reasons, the Board finds that a 20 percent rating, but no more, is warranted prior to October 19, 2017; and a 40 percent rating, but no more, is warranted thereafter. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.