Citation Nr: 20006940 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 13-32 748 DATE: January 28, 2020 ORDER Entitlement to service connection for deviated septum with difficulty breathing is denied. Entitlement to service connection for lower back and coccyx injury (hereafter referred to as “lower back disability”) is denied. Entitlement to service connection for right leg numbness associated with lower back disability is denied. Entitlement to a compensable rating for left ear hearing loss is denied. REMANDED Entitlement to a rating in excess of 10 percent prior to June 10, 2018 and 20 percent thereafter for residuals of left clavicle fracture and post-operative status rotator cuff repair is remanded. FINDINGS OF FACT 1. The Veteran’s deviated septum did not have onset during active service and was not caused by active service. 2. The Veteran’s lower back disability did not begin in service and is not related to an in-service injury, event, or disease. 3. The Veteran does not have a current right lower extremity disability. 4. The Veteran has had no greater than Level II hearing acuity for the left ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for deviated septum with difficulty breathing have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for a lower back disability have not been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for entitlement to service connection for right leg numbness have not all been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria for a compensable disability rating for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.201, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.85, Diagnostic Code 6100, 4.86. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1983 to August 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); the hearing transcript is of record. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). “To establish a right to compensation for a present disability, a Veteran 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”- the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disability. See 38 C.F.R. § 3.310 (a). Service connection will also be granted on a secondary basis for an additional disability that results from aggravation of a non-service-connected disability by a service-connected disability. 1. Deviated Septum The Veteran contends that he has a deviated septum with difficulty breathing as a result of being punched in the nose during his active service, and since that time has had difficulty breathing. As an initial matter, he was diagnosed with a deviated septum by a VA examiner. Therefore, a current disability is shown, and the first element of service connection has been met. Service treatment records do not show any treatment for or diagnosis of a deviated septum with difficulty breathing. There are no records showing that the Veteran had an injury to his nose while in service. Service treatment records do indicate the Veteran was involved in a motor vehicle accident while in service, but no mention regarding a nose injury. As mentioned, current VA medical records do reflect a diagnosis of a deviated septum. The Veteran attended a VA examination in May 2011. The examiner diagnosed the Veteran with a deviated septum (traumatic) and stated that it was at least as likely as not that the Veteran’s deviated septum was related to an injury/illness incurred while on active duty. The examiner did not identify what injury/illness he was referring to. He provided no rationale for this opinion. The Board finds this medical opinion to be conclusory in nature, and therefore affords it little probative value. The Veteran attended a VA examination in April 2013. The examiner confirmed the prior diagnosis of traumatic deviated septum. The examiner was asked to clarify the opinion of the May 2011 VA examiner and stated that it was less likely as not that the Veteran’s deviated septum was related to the motor vehicle accident in service or the result of an altercation. He reasoned that service treatment records were negative for documentation of nasal trauma or injury as well as negative for deviated nasal septum. He stated that the records documented a history of a motor vehicle accident in 1984 with a left clavicular injury, but no nasal trauma was reported. The Veteran’s separation exam was also negative for a deviated septum injury. However, the post service medical records several years later documented a deviated nasal septum and the current x-ray of the nasal bones documents an old, non-displaced fracture fragment of the tip of the nasal bone. As this opinion is supported by logical and thorough rationale consistent with the evidence of record, the Board finds it to be the most probative medical evidence of record and provides it with more weight than that of the May 2011 examiner. During the hearing before the undersigned, the Veteran testified that he did not report to sick call because seeking treatment was discouraged. He also testified that his nose injury was that he was punched in the nose during boot camp by his drill instructor. Review of the service treatment records show that the Veteran did report for medical treatment for other injuries or diseases which tends to show that if he suffered a nose injury during service, he would have, at some point, have reported it in a medical context. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran’s claim of entitlement to service connection for a deviated septum and his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Lower Back Disability The Veteran contends he is entitled to service connection for a lower back disability. Specifically, as a result of a motor vehicle accident while in service and/or a fall during a hike in basic training. The Veteran’s VA medical records indicate the Veteran has a diagnosis of degenerative arthritis of the spine. As such, the first element of service connection has been met. The Veteran’s service treatment records (STRs) do not indicate any symptoms of or treatment for a back disability. The July 1987 separation examination indicated normal spine and musculoskeletal evaluation. On the July 1987 report of medical history on separation, the Veteran marked “no” with regards to arthritis, inflammation, or bursitis, bone or joint deformity, and recurrent back pain. As noted, there is documentation for a motor vehicle accident in 1984, but no mention of a fall during basic training within the Veteran’s STRs. The Veteran attended a VA examination in May 2011. The examiner provided a diagnosis of mechanical low back pain, incidental finding of six lumbar vertebrae and spina bifida occulta (non-traumatic, congenital/developmental). The examiner noted that it was less likely that your current claimed back disability was related to an injury/illness incurred while on active duty military service. He stated that the Veteran was found to have six lumbar vertebrae and spina bifida occulta, both of which were congenital/developmental in nature. The Veteran attended a VA examination in September 2016. The examiner diagnosed the Veteran with degenerative arthritis of the spine. He ultimately opined that the Veteran’s current degenerative disc disease lumbar spine/mild disc bulge at L3-L4 and L4-L5, noted in an MRI many years after the service, is less likely than not related to service. He reasoned that after review of the service medical records, he was unable to locate any treatments for low back pain in the service. The separation physical examination in July 1987 documented a normal spine exam, and no medical records from immediately after the service were available for review. The Board has considered the Veteran’s statements that he fell during service during a hike, and ever since he had right thigh pain, and that is when the numbness in his spine began. While the Veteran believes that his lower back disability is proximately due to or the result of service, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between activities in service and a diagnosis provided many years after separation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the May 2011 and September 2016 VA examiners in combination with the evidence of record. Additionally, as stated in the section addressing his deviated septum claim, if the Veteran had low back symptoms during service it is likely he would have reported it as he reported other medical conditions during service. As such, the preponderance of the evidence is against a grant of service connection for a lower back disability. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. Right Leg Numbness The Veteran contends he is entitled to service connection for right leg numbness secondary to lower back disability. Initially, the Board notes that because the Veteran is not service-connected for his back disability, he cannot be secondarily service connected for his right leg numbness. The Board finds that the Veteran does not have a current medical evidence of right leg numbness and the Board finds his report of a disability is insufficient under the facts of this case to establish that he has such disability. The Veteran attended a VA examination in May 2011. No radiculopathy was observed. The Veteran attended a VA examination in September 2016. The examiner stated that except for subjective symptoms of pain and numbness to the right leg, no objective evidence of nerve involvement was found per the examination of the Veteran’s right leg. The medical evidence in this case is more probative than the Veteran’s report of right leg symptoms. His reports, standing alone, do not establish that he has any impairment with regard to his subjective symptoms and thus the Board concludes he has no right leg neurological disability. Without a current right lower extremity disability, the first requirement for establishing service connection has not been met. Therefore, the Board finds the preponderance of the evidence is against the claim for service connection for right leg numbness on either a direct or secondary basis. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). 4. Left Ear Hearing Loss The Veteran contends that his left ear hearing loss should be evaluated at a compensable level. Ratings for hearing loss disability are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level, in decibels (dB) as measured by pure tone audiometric tests in the frequencies 1000, 2000, 3000 and 4000 Hertz (Hz). 38 C.F.R. § 4.85, Diagnostic Code 6100. An examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC). Id. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Id. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Id. Exceptional patterns of hearing impairment allow for assignment of the Roman numeral designation through the use of Table VI or an alternate table, Table VIA, whichever is more beneficial to the Veteran. 38 C.F.R. § 4.86. This applies to two patterns. In both patterns each ear will be evaluated separately. Id. The first pattern is where the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 dB or more. 38 C.F.R. § 4.86 (a). The second pattern is where the pure tone threshold is 30 dB or less at 1000 Hz and 70 dB or more at 2000 Hz. Id. If the second pattern exists, the Roman numeral will be elevated to the next higher numeral. Id. As the evidence described below shows, neither of the patterns are present in this case. In describing the evidence the Board refers to the frequencies of 1000, 2000, 3000, and 4000 Hz, as the frequencies of interest. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a compensable evaluation for his left ear hearing loss under 38 C.F.R. §§ 4.85 or 4.86, Diagnostic Code 6100. The February 2010 VA audiological examination revealed puretone thresholds in the Veteran’s left ear of 30, 15, 15, and 30 dB at 1000, 2000, 3000 and 4000 Hz. The average puretone threshold was 23 dB in the left ear. The Maryland CNC speech recognition score was 98 in the left ear. Therefore, the Veteran’s February 2010 examination results revealed level I hearing in the left ear. Using Table VII, Roman numeral I is used for the non-service-connected right ear. Combining these levels according to Table VII results in a noncompensable rating. The May 2011 VA audiological examination revealed puretone thresholds in the Veteran’s left ear of 30, 20, 25, and 40 dB at 1000, 2000, 3000 and 4000 Hz. The average puretone threshold was 28.75 dB in the left ear. The Maryland CNC speech recognition score was 90 in the left ear. Therefore, the Veteran’s May 2011 examination results revealed level II hearing in the left ear. Using Table VII, Roman numeral I is used for the non-service-connected right ear. Combining these levels according to Table VII results in a noncompensable rating. The April 2013 VA audiological examination revealed puretone thresholds in the Veteran’s left ear of 30, 20, 20, and 30 dB at 1000, 2000, 3000 and 4000 Hz. The average puretone threshold was 25 dB in the left ear. The Maryland CNC speech recognition score was 96 in the left ear. Therefore, the Veteran’s April 2013 examination results revealed level I hearing in the left ear. Using Table VII, Roman numeral I is used for the non-service-connected right ear. Combining these levels according to Table VII results in a noncompensable rating. The November 2018 VA audiological examination revealed puretone thresholds in the Veteran’s left ear of 30, 25, 25, and 35 dB at 1000, 2000, 3000 and 4000 Hz. The average puretone threshold was 29 dB in the left ear. The Maryland CNC speech recognition score was 96 in the left ear. Therefore, the Veteran’s November 2018 examination results revealed level I hearing in the left ear. Using Table VII, Roman numeral I is used for the non-service-connected right ear. Combining these levels according to Table VII results in a noncompensable rating. The Board has also considered whether a compensable evaluation for hearing loss is warranted under 38 C.F.R. § 4.86. Based on all of the above detailed audiometric findings, however, the Veteran’s disability did not meet the requirements of 38 C.F.R. § 4.86. The Veteran did not have puretone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000 and 4000 Hz or a puretone threshold of 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz. As such, it is apparent that the noncompensable disability evaluation for the Veteran’s left ear hearing loss is accurate and appropriately reflects his hearing loss under the provisions of 38 C.F.R. §§ 4.85 and 4.86(a). The Board concludes that a compensable rating for the Veteran’s left ear hearing loss is not warranted. It is apparent that the assigned noncompensable disability evaluation for the appeal period for the Veteran’s left ear hearing loss is accurate and appropriately reflects his hearing loss under the provisions of 38 C.F.R. §§ 4.85 and 4.86. Although the Veteran contends that his left ear hearing loss is more severe, and therefore warrants a higher evaluation, the assignment of disability evaluations for hearing impairment is a mechanical application of the rating criteria from which the Board cannot deviate. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Board has also considered the Veteran’s contentions that he feels his hearing is getting worse and worse, and that he favors his right side to hear when conversing. However, the schedular criteria for hearing loss contemplates the functional effects of difficulty hearing and understanding speech. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Accordingly, the preponderance of the evidence is against a compensable rating for left ear hearing loss disability. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent prior to June 10, 2018 and 20 percent thereafter for residuals of left clavicle fracture and post-operative status rotator cuff repair is remanded. The Veteran’s left clavicle disability has been evaluated pursuant to DC 5203-5201. Hyphenated diagnostic codes are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27. The first four digits, 5203 in this case, is the DC for the disability. The second four digits after the hyphen, 5201 in this case, is the DC used to rate the residuals of that disability. Thus, the Veteran’s impairments of the left clavicle (DC 5203) have been rated based on limitation of motion (DC 5201). He is rated as 10 percent disabling prior to June 10, 2018, and 20 percent thereafter. For the Veteran to obtain the next higher rating of 30 percent for his left shoulder (minor extremity), the evidence must show: range of motion limited to 25 degrees from the side (5201). At the March 2019 hearing, the Veteran described his left arm as having “no function to it.” He stated that it is very weak, and that he can barely use it now. The Veteran stated that he could not move his left arm to 90 degrees from his side, and the testimony provided also suggests he may suffer from limitation even greater than that. As the testimony regarding worsening was provided after the most recent findings of the May 2018 VA examination, the Board finds that remand is necessary in order to obtain a new VA examination to assess the current nature and severity of the Veteran’s limitation of motion of his left arm. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: 1. Ensure the Veteran is scheduled for a VA examination as to the nature and severity of his service-connected residuals of left clavicle fracture and post-operative status rotator cuff repair, including limitation of range of motion of the left arm. The examiner must review the claims file in conjunction with the examination. A rationale must be provided for all opinions and conclusions rendered. The opinion provided should also address the particulars of this Veteran’s medical history, his lay statements, and the relevant medical principles as applicable to this claim. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. Readjudicate the claim that is the subject of this remand. If any benefit sought is not granted in full, furnish to the Veteran and his representative a supplemental statement of the case (SSOC) and provide the requisite period of time to respond. The case should thereafter be returned to the Board for further appellate review, if otherwise in order. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Katie Poe, Associate 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.