Citation Nr: 20006629 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 09-28 173 DATE: January 27, 2020 ORDER A rating in excess of 10 percent for a cervical spine disability is denied. Service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. Throughout the claim period, the Veteran’s cervical spine disability has manifested in no more than forward flexion limited to 35 degrees. There is no evidence of forward flexion limited to less than 30 degrees, combined range of motion of the cervical spine limited to less than 170 degrees, muscle spasm or guarding resulting in abnormal gait or spinal contour, ankylosis, or intervertebral disc disease (IVDS). See VA Examinations dated February 2008, March 2008, December 2015, October 2019. 2. There is no evidence that the Veteran’s claimed bilateral hearing loss has manifested in an auditory threshold in the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz of 40 decibels or greater, or an auditory threshold in three of these frequencies of 26 decibels or greater. See VA Examinations dated June 2005, October 2019; but see April 2008 VA Treatment Record (VATR) (noting mild bilateral sensorineural hearing loss, but missing audiogram results). CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for a cervical spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5237. 2. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1991 to August 1994, May 2000 to September 2000, and February 2003 to March 2004. This case is before the Board of Veterans’ Appeals (Board) on appeal from March 2008 and August 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. 1. An Increased Rating for a Cervical Spine Disability The Veteran’s cervical spine disability is currently rated as 10 percent disabling throughout the claim period under the General Rating Formula for Diseases and Injuries of the Spine. 38 U.S.C. § 4.71a. Under the General Rating Formula, a rating in excess of 10 percent for the cervical spine requires either forward flexion of 30 degrees or less, a combined range of motion of 170 degrees or less, muscle spasm or guarding resulting in abnormal gait or spinal contour, or ankylosis. A rating in excess of 10 percent may also be warranted for IVDS with incapacitating episodes having a total duration of between two and four weeks in the past twelve months. The Veteran has been afforded four VA examinations evaluating his cervical spine disability throughout the claim period. A February 2008 examination noted normal range of motion without pain and no guarding or muscle spasms, but did not record specific range of motion findings. A March 2008 examination noted forward flexion limited to 45 degrees, with a combined range of motion of 285 degrees, and no incapacitating episodes. A December 2015 examination noted forward flexion limited to 45 degrees, with a combined range of motion of 340 degrees, no ankylosis, and no IVDS. An October 2019 examination noted forward flexion limited to 35 degrees with a combined range of motion of 265 degrees, no guarding or spasms, ankylosis, or IVDS. The Veteran reported no flare ups, and the examiner opined that the Veteran’s functional ability was not significantly limited with use over time. See Sharp v. Shulkin, 29 Vet. App. 26 (2017) (VA joint examinations must include an opinion as to whether pain significantly limits functional ability during flares or with repeated use over time). The findings of the VA examiners are competent, credible, and entitled to significant weight. Moreover, there is no evidence to the contrary. Therefore, as detailed above, the Board finds that throughout the claim period the Veteran’s cervical spine disability has manifested in no more than forward flexion limited to 35 degrees. Accordingly, a rating in excess of 10 percent is not warranted. 2. Service Connection for Bilateral Hearing Loss Generally, in order to prove service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). For VA purposes, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. The Veteran has been afforded two VA examinations in support of this claim throughout the claim period. A June 2005 examination yielded findings not constituting a disability for VA purposes. An October 2019 examination also yielded findings not constituting a disability for VA purposes. The findings of the VA examiners are competent, credible, and entitled to significant weight. Moreover, there is no evidence to the contrary. However, in this regard, the Board notes that an April 2008 VA audiology consultation yielded a finding of hearing within normal limits bilateral, but with mild bilateral sensorineural hearing loss at 3000 Hertz. The audiogram produced at this appointment is not of record, and although the Board directed in a January 2019 remand that it be obtained, it has not been added to the claims file. Nevertheless, in light of the October 2019 VA examination results indicating that the Veteran still does not have a hearing disability for VA purposes, the Board finds that this error is harmless. Therefore, the Board finds that the Veteran has not had hearing loss constituting a disability for VA purposes at any point throughout the claim period. Accordingly, service connection for bilateral hearing loss is not warranted. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Timmerman 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.