Citation Nr: 20039915 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 19-35 440 DATE: June 11, 2020 ORDER Entitlement to an initial disability rating in excess of 40 percent for lumbar spine strain with degenerative disc disease is denied. REMANDED Entitlement to service connection for hearing loss is remanded. FINDING OF FACT The Veteran’s lumbar spine strain with degenerative disc disease is, at worst, manifested by forward flexion of the thoracolumbar spine limited by 30 degrees. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating in excess of 40 percent for lumbar spine strain with degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Air Force from December 1959 to August 1963. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO), that granted service connection for lumbar spine strain and assigned an initial 40 percent rating, and denied service connection for bilateral hearing loss. In a December 2019 rating decision, the RO granted service connection for lumbar spine DDD, and recharacterized the spine disability as lumbar spine strain with DDD under the initial assigned 40 percent rating, and granted service connection for left lower extremity radiculopathy, with separate ratings for the sciatic nerve (20 percent) and femoral nerve (10 percent), as well as for residual surgical scar, lumbar spine, (0 percent). The Veteran has not appealed the ratings for the separate radiculopathy or scar ratings separately granted in the December 2019 rating decision, accordingly, they are not on appeal before the Board. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). 1. Entitlement to a disability rating in excess of 40 percent for lumbar spine strain with lumbar spine degenerative disc disease Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 A March 2018 rating decision granted service connection for lumbar spine strain and assigned an initial disability rating of 40 percent, effective December 5, 2017, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237. The Veteran contends that he is entitled to a higher disability rating. The Veteran’s lumbar spine strain with degenerative disc disease is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as “a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Where, however, a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). A March 2018 VA examination showed that the Veteran’s thoracolumbar spine had flexion to 30 degrees, extension to 10 degrees, left and right laterally bend to 15 degrees in each direction, and left and right rotation to 20 degrees in each direction. The examiner noted the Veteran was unable to engage in repetitive bending and lifting. There was objective evidence of pain noted on exam that causes functional loss with pain exhibited in all ranges of motion testing. There was objective evidence of pain with weight-bearing and objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. This evidence did not show muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. This evidence did not show that that pain, repetitive use, weakness, flare-ups, incoordination or fatigue would cause an additional loss of range of motion in the Veteran’s thoracolumbar spine without the examiner resorting to mere speculation. There was no evidence of anklyosis. The Veteran was afforded another VA examination in November 2019. He had flexions to 70 degrees, extension to 20 degrees, left and right laterally bend to 30 degrees in each direction, and left and right rotation to 30 degrees in each direction. Range of motion itself contributed to a functional loss and the Veteran could not fully flex or extend his back. There was objective evidence of pain on exam that causes functional loss in range of motion testing for forward flexion and extension. The examiner noted that upon repetitive use over time, the Veteran’s range of motion testing would not change. As for flare-ups, the examiner assessed that pain would cause additional functional loss resulting in terms of range of motion, in flexion to 50 degrees, extension to 20 degrees, left and right laterally bend to 30 degrees in each direction, and left and right rotation to 30 degrees in each direction. This evidence did not show muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. This evidence did not show that that pain, repetitive use, weakness, flare-ups, incoordination or fatigue would cause an additional loss of range of motion in his thoracolumbar spine. There was no evidence of ankylosis. Thus, the Veteran is currently receiving a 40 percent rating for his lumbar spine strain with lumbar spine degenerative disc disease because his March 2018 VA examination showed he had forward flexion of the thoracolumbar spine to 30 degrees. The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for lumbar spine strain with degenerative disc disease. In order to warrant a higher 50 percent rating under Diagnostic Code 5237, there must be evidence of unfavorable ankylosis of the entire thoracolumbar spine, which there is no evidence. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain during flare-ups and pain during repetitive use over time. However, even considering the reported symptoms and noted functional loss, the degree of additional limitation reflected by the statements that pain significantly limits functional ability with flare ups would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. To the extent that any examiner could not provide an opinion regarding functional impairment during a flare-up or with repetitive use over time, the examinations are still adequate even with consideration of the Court’s decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Further, the Board recognizes that, in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA medical examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In this regard, the Board notes that a rating in excess of 40 percent for a back disability requires unfavorable ankylosis. Accordingly, strict compliance with Correia and Sharp would not result in a higher rating as the Veteran is already in receipt of the maximum rating based on limitation of motion of the lumbar spine and any inadequacies are nonprejudicial to the Veteran. 38 C.F.R. § 4.71a, DC 5237. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS. See November 2019 VA examination; see also 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding neurological impairment, the Veteran has already been granted service connection for left lower extremity radiculopathy (sciatic and femoral nerves) and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent for lumbar spine strain with degenerative disc disease as there is no evidence of anklyosis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for hearing loss is remanded. The Veteran is seeking service connection for hearing loss. The Board finds that an additional opinion is needed prior to adjudication of this claim. The Veteran was afforded a VA examination in connection with his hearing loss claim in March 2018 in which he found that the Veteran’s bilateral hearing loss was less likely as not related to noise exposure during service. The Board finds that the VA examiner's reasoning was inadequate. Indeed, the examiner based the opinion primarily on the fact that the audiometric thresholds were within normal limits on separation examination, with no findings related to shifts in audiometric thresholds, and therefore there was no evidence that his bilateral hearing loss was related to noise exposure in service. However, the fact that there was no hearing loss in service is not dispositive of the issue and an opinion based on this fact is inadequate. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In addition, the examiner failed to discuss the Veteran’s exposure on the flight light to jet engines as a jet aircraft mechanic, and to take a history of the Veteran’s post service noise exposure. Furthermore, the Board notes that on the Veteran’s entrance examination, only the whispered voice test was provided. During service, audiometric testing in puretone thresholds were reported in January 1960, March 1961, February 1962, and on separation examination in August 1963. However, prior to November 1, 1967, service department audiometric test results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). There is no conversion in the report. Accordingly, the Board finds that an addendum opinion is needed. The matters are REMANDED for the following action: 1. Send the claims file to a VA audiologist to obtain an addendum opinion on the claim for service connection for hearing loss. If a new examination is deemed necessary to respond to the question presented, one should be scheduled. Conversion of audiometric testing in puretone reported in January 1960, March 1961, February 1962, and on separation examination in August 1963 must be shown in the examination report. 2. Following review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the Veteran’s hearing loss is related to service. The examiner should explain why or why not. The examiner should also explain why the Veteran’s current hearing loss is/is not a delayed response to his in-service noise exposure with consideration of the Veteran’s exposure to jet engines in service, and any post service noise exposure. 3. If the claim remains denied, issue a supplemental statement of the case. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. N. Wilson, 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.