Citation Nr: 21002440 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-26 782 DATE: January 13, 2021 ORDER Service connection for a neck condition is denied. A compensable rating for left ear hearing loss is denied. A rating in excess of 40 percent for a low back disability is denied. A total disability rating based on unemployment (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The weight of the evidence is against finding that the Veteran’s currently diagnosed cervical spine degenerative disc disease (DDD) was incurred or caused by his active duty service. 2. At worst, the Veteran’s left ear hearing loss has been characterized by numeric designation Level I in the right ear and Level VII in the left ear. 3. The weight of the evidence is against finding that the Veteran has unfavorable ankylosis in any part of his spine, or has required prescribed bed rest to treat his back disability. 4. The Veteran has received a 100 percent schedular rating throughout the period on appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for a neck condition have not been met. 38 U.S.C. §1131; 38 C.F.R. § 3.303. 2. The criteria for a compensable rating for left ear hearing loss have not been met. 38 U.S.C. § 1155; 5107; 38 C.F.R. §§ 3.321, 4.1, 4.10, 4.85, 4.86 Diagnostic Code 6100. 3. The criteria for a rating in excess of 40 percent for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5237. 4. The TDIU claim is moot. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1979 to May 1983. Service Connection Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). These issues were previously, as well as a service connection claim for a bilateral hip disability, were before the Board in October 2018 and were remanded. A subsequent May 2020 rating decision granted the Veteran’s service connection claims for a bilateral hip disability. That decision is considered a full grant of benefits sought on appeal, and the appeal concerning the Veteran’s bilateral hip disability is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The remand directives as they pertain to the remaining issues will be discussed in their respective sections. Service connection for a neck condition is denied. The Veteran asserts that he injured his neck in the same in-service incident in which he injured his now service-connected low back. This issue was previously before the Board in October 2018. The Board decision found that the Veteran had not been afforded a VA examination and ordered one to determine the etiology of his neck condition. The Veteran was afforded a VA examination in February 2020. The examiner provided an in-person examination and rendered a nexus opinion. As such, the Board finds that there has been substantial compliance with the October 2018 Board remand directives, as they pertain to the service connection claim for a neck condition. See Stegall v. West, 11 Vet. App. 268, 271 (1998).  The Veteran’s service treatment records (STRs) document the incident in which he injured his low back, resulting in a visit to the emergency room. The medical officer reported that the Veteran was seen nine days earlier for a back strain. The medical officer also reported that the Veteran’s back was injured when carrying two paint cans that weight about 55-60 pounds. The medical officer reported that the Veteran was carried into the sick bay by friends after stating that he could go no further. The medical officer indicated that the Veteran’s back pain was in the T-5 to T-12 range. See STR dated March 31, 1981. The Veteran complained of thoracic spine pain in April 1981. After a careful review of the Veteran’s STRs, there were no complaints of neck pain. Further, the Veteran’s separation examination showed a normal clinical evaluation and there was no indication that he had ongoing neck problems. The Veteran was afforded a VA examination in February 2020. The examiner noted that a MRI from August 2017 showed that the Veteran had DDD of the cervical spine. The Veteran reported that the onset of his neck condition was in 1980, when he was carrying two buckets of non-skid, which weighed about 80 pounds, down stairs. He reported that both buckets landed on his mid-back. After an in-person examination and a review of the Veteran’s claims file, the examiner provided a negative nexus opinion. The examiner acknowledged the Veteran’s in-service accident where he injured his thoracic spine, but also pointed out that his STRs discussed mid thoracic pain and did not make reference to any neck complaints. To the extent that the Veteran believes that his cervical spine DDD is the result of his active duty service, such a medical opinion requires medical expertise, and that determination cannot simply be made by lay observation alone; and the Veteran is not considered competent (meaning medically qualified by training or experience) to provide a medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given the Veteran’s post-service complaints of neck pain and his assertion that the in-service accident that caused his back disability, also caused his neck condition, a VA examination was ordered, which took into account the medical evidence of record, as well as the Veteran’s assertions. Unfortunately, the February 2020 VA examiner provided a negative nexus opinion. The Board notes that the Veteran has not offered any medical opinion that would undermine the VA examiner’s medical opinion in regard to service connection for a neck condition. Here, there is one competent medical opinion of record, the February 2020 VA examiner’s opinion that the Veteran’s cervical spine DDD is not related to his active duty service. The only opinion that the Veteran’s cervical spine DDD is due to his in-service accident, is the Veteran’s own lay opinion; however, the Veteran lacks the medical training or expertise to provide such a medical opinion. Id. Here, the Board affords the February 2020 VA examiner’s opinion great probative weight because the examiner provided an explanation and justification for her medical opinion. The examiner also reviewed the Veteran’s medical records and lay statements and tied their findings in with the explanation. As the Veteran is not competent to provide a medical nexus opinion, the Board affords no probative weight to the Veteran’s assertion. The Board is sympathetic to the Veteran’s claims and does not wish to minimize his assertions or beliefs. However, the contemporaneous evidence of record does not support his assertions. The Veteran’s STRs document the accident where two very heavy paint cans injured his back in the thoracic region. See STR dated March 31, 1981 and April 2, 1981. However, after a careful review of his STRs, there was no indication that he ever complained of neck pain, and there is no documentation to suggest injury to the cervical spine in the incident. Further, the Veteran has received a negative nexus opinion from the February 2020 VA examiner. As such, the criteria for service connection have not been met; the Board cannot resolve reasonable doubt in his favor because the weight of the evidence is not in relative equipoise. Accordingly, service connection for a neck condition is denied. Increased Ratings 1. A compensable rating for left ear hearing loss is denied. The Veteran asserts that he is entitled to a compensable rating for his left ear hearing loss. The Veteran is currently assigned a noncompensable rating, effective September 25, 2009. VA received the Veteran’s claim for an increased rating for his left ear hearing loss on January 5, 2016. This issue was previously before the Board in October 2018. The Board decision found that there was a May 2016 audiology consultation which reported the results in summary form. The Board sought to obtain the audiometric results of that May 2016 audiology consultation. The Board also remanded for a new VA examination based on evidence that the Veteran’s left ear hearing loss had worsened. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The Veteran was afforded a VA examination in January 2020, which determined the current severity of his left ear hearing loss. The Veteran’s May 2016 audiometric results were sought, however, only the summary of the audiology consultation was once again provided, but did not contain the audiometric results. Here, it appears as though the raw data from that audiology consultation are not available. As such, the Board finds that there has been substantial compliance with the October 2018 Board remand directives because he was afforded a VA examination in January 2020 to determine the current severity of his left ear hearing loss and the raw data from the May 2016 audiology consultation was requested, but unavailable. See Stegall v. West, 11 Vet. App. 268, 271 (1998).  Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating schedule establishes auditory hearing acuity levels based on average puretone thresholds and speech discrimination. 38 C.F.R. § 4.85. Ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations. Ratings for hearing impairment range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by the results of the controlled speech discrimination tests, together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results of testing are charted on Table VI and Table VII. 38 C.F.R. § 4.85, Tables VI, VII. Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. When the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral for hearing impairment from Table VI or Table VIA, whichever is higher. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. If, as here, impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I. See 38 C.F.R. § 4.85 (f). An adequate evaluation of impairment of hearing acuity rests upon the results of controlled speech discrimination tests, together with tests of the average hearing threshold levels at certain specified frequencies. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran’s VA treatment records have been reviewed but do not contain the results of any audiometric testing, beyond the VA examinations discussed below. The Veteran was afforded a VA examination in February 2016. The audiological examination report showed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average Left 55 55 80 105 74 The Veteran’s Maryland CNC test showed that he scored 80 percent in his left ear. As previously discussed, the raw data from the May 2016 audiology consultation is not available. However, the examiner reported that the thresholds indicated normal hearing at 250 Hz, sloping to a mild loss at 1000 Hz, falling to a profound loss from 3000-8000 Hz. The Veteran’s speech discrimination score was not reported. The Veteran was afforded a VA examination in January 2020. The audiological examination report showed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average Left 25 65 85 95 67.5 The Veteran’s Maryland CNC test showed that he scored 74 percent in his left ear. The results of the February 2016 VA audiological evaluation showed an average hearing loss of 74 decibels in the left ear. He had a speech discrimination score of 80 percent in the left ear. Under Table VI, the February 2016 audiological results show that he had a Level V in the left ear. As the Veteran is not service connected for hearing loss in his right ear, his right ear has been assigned a Level I. See 38 C.F.R. § 4.85. A Level V in the left ear and a Level I in the right ear warrants a noncompensable rating under Table VII. The 2016 audiometric test also showed an exceptional pattern of hearing impairment in the left ear, which would merit a VI from Table VIA. This would also be noncompensable when paired with a I for the right ear. The results of the January 2020 audiometric examinations did not show puretone thresholds at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz at 55 decibels or more; or a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 (a). The results of the January 2020 audiological evaluation showed an average hearing loss of 67.5 in the left ear. He had a speech discrimination score of 74 in the left ear. Under Table VI, the January 2020 audiological results show that he had a Level VII in the left ear. As the Veteran is not service connected for hearing loss in his right ear, his right ear has been assigned a Level I. See 38 C.F.R. § 4.85. A Level VII in the left ear and a Level I in the right ear warrants a noncompensable rating under Table VII. The Board finds that although the raw data of the May 2016 audiology consultation is not available, it does not prejudice the Veteran’s increased ratings claim. The Board points out that when a Veteran is only service connected for one ear, it is very difficult to obtain a compensable rating for hearing loss. The Veteran would need to reach at least a Level X to warrant a 10 percent rating for his left ear. The Board does not believe that the summary of the May 2016 audiology consultation described findings consistent with Level X. Level X is warranted when a veteran shows a puretone threshold average of 98+ and a speech discrimination score of 44-50; a puretone threshold average of 82-89 and a speech discrimination score of 36-42; or a puretone threshold average of 42-49 and a speech discrimination score of 0-34. The Board does not believe that the May 2016 audiology consultant’s description of, normal hearing at 250 Hz, sloping to a mild loss at 1000 Hz, falling to a profound loss from 3000-8000 Hz, describes any of the Level X scenarios. Here, the Veteran has asserted that he is entitled to a compensable rating, but has not pointed to any clinical evidence that would support such a position. Given the Veteran’s complaints of decreased hearing acuity, he was afforded two VA examinations during this period on appeal to evaluate the current severity of the hearing loss. However, the mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results does not reveal findings consistent with a compensable rating. The Board acknowledges the Veteran’s complaints of decreased hearing. The Board does not doubt that the Veteran’s hearing loss causes him hardship and is sympathetic to his claim. Unfortunately, the audiometric results show that the Veteran’s hearing loss is noncompensable under the schedular criteria. Here, although the Veteran has shown hearing loss in his left ear, his hearing loss has not risen to a level that VA regulations rate as compensable and the Board is bound by the rigid application of the rating criteria. As previously explained, when only one ear is service connected for hearing loss, it is very difficult to receive a compensable rating. Here, the Veteran has not shown that his left ear hearing loss rises to a Level X, under the rating schedule. As such, the Board finds that there is no schedular basis for a compensable rating based on the testing results of record. Accordingly, a compensable rating for left ear hearing loss is denied. 2. A rating in excess of 40 percent for a low back disability is denied. The Veteran asserts that he is entitled to a rating in excess of 40 percent for his low back disability. VA received the Veteran’s claim for an increased rating for his low back on January 5, 2016. A subsequent March 2016 rating decision increased his disability rating to 100 percent from December 21, 2015 to March 1, 2016 based on surgical treatment necessitating convalescence; a 40 percent disability rating was assigned from March 1, 2016, based on forward flexion of the thoracolumbar spine to 30 degrees or less. This issue was previously before the Board in October 2018. The Board decision found that the February 2016 VA examination for his back did not include any testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Board ordered a new VA examination for the Veteran’s back that was in compliance with the provisions of Correia. Id. The Veteran was afforded a VA examination in February, which was in compliance with Correia. As such, the Board finds that there has been substantial compliance with the October 2018 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998).  Back disabilities are currently rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The evidence of record does not show that the Veteran has experienced any IVDS. The February 2016 and February 2020 VA examiners both indicated that the Veteran did not have IVDS. Moreover, there is no evidence showing that the Veteran has been prescribed any bed rest to treat his low back disability. Because the prescription of bed rest is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, a rating based on IVDS is not appropriate, and it is therefore more beneficial to evaluate the Veteran’s lumbar spine disability under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is 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. The Veteran was afforded a VA examination in February 2016. The examiner reported that the Veteran had surgery in December 2015 that fused the L5/S1. The Veteran did not report having flare-ups of the lumbar spine, but did report having functional loss described as pain in his lower back with all ordinary actions, such as lifting arms, stooping, and bending. On examination, he showed forward flexion from 6 to 9 degrees, extension to 3 degrees, right and left lateral flexion to 3 degrees, right lateral rotation to 2 degrees, and left lateral rotation to 3 degrees. The examiner indicated that there was pain noted on examination for all range of motion movements. The Veteran was not able to perform repetitive-use testing because of pain in his lower back. The examiner declined to estimate any additional functional loss after repeated use over time because his movements were already so limited. The examiner reported that the Veteran had both muscle spasms and guarding that resulted in an abnormal gait. Muscle strength testing showed a slight to moderate reduction in muscle strength. There was no evidence of ankylosis of the spine or IVDS. The October 2018 Board decision found that the February 2016 VA examination for his back did not include any testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). As such, the issue was remanded to afford the Veteran a new VA examination. The Veteran was afforded a VA examination in February 2020. The Veteran reported having flare-ups of the lumbar spine and described intense pain and weakness in his legs. He also reported functional loss and described weakness in his legs, which sometimes caused him to fall. He also reported that he could not sit in one position for more than an hour due to pain. On examination, he showed forward flexion to 20 degrees, extension to 20 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 15 degrees. The examiner indicated that there was pain noted on examination for all range of motion movements. The Veteran was able to perform repetitive-use testing with no additional loss of range of motion. The examiner reported that the examination did not take place immediately after repetitive use or during a flare-up, but estimated that he would not lose any additional range of motion. However, the examiner indicated that he would experience pain, weakness, and lack of endurance after repetitive use or during a flare-up. The examiner reported that the Veteran had muscle spasms that resulted in an abnormal gait. Muscle strength testing showed a slight reduction in muscle strength. There was no evidence of ankylosis of the spine or IVDS. Correia testing showed objective evidence of pain in non-weight bearing and weight-bearing; and passive range of motion for the back was the same as the intimal range of motion testing. The Board finds that the February 2020 VA examination provided an examination that was in compliance with Correia because it provided joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Board notes that the Veteran has not challenged the adequacy of this examination. The Veteran’s post-service medical records have been reviewed, but do not contain any findings that indicate the Veteran has ankylosis of the spine. Here, the weight of the evidence does not demonstrate findings consistent with a 50, or a 100 percent rating for a low back disability. In order to receive a rating in excess of 40 percent, the Veteran must show ankylosis of the thoracolumbar spine or ankylosis of the entire spine. Here, the Veteran has not asserted nor does the evidence show ankylosis of the spine. For example, both the February 2016 and February 2020 VA examiners reported that the Veteran did not have ankylosis of the spine. The Board acknowledges the Veteran’s complaints of back pain and the limitation it causes him. The Board does not doubt that this causes him significant impairment. The Board acknowledges the significant limitation of motion his lumbar spine disability causes, as shown by his 40 percent rating; however, the Veteran is in receipt of the maximum rating for a low back disability, based on a limitation of motion. As explained the Veteran has not established findings consistent with a 50 or 100 percent rating for his low back disability because he does not have ankylosis of the spine. Accordingly, a rating in excess of 40 percent for a low back disability is denied. 3. A TDIU is moot. The Veteran asserts that he is entitled to a TDIU. Specifically, he asserts that he stepped down as the owner-operator of his ranch, in 2015. VA received the Veteran’s application for a TDIU on January 24, 2020. However, the October 2018 Board decision found that his TDIU claim was part of the increased ratings claims on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the relevant period on appeal begins on January 5, 2016, the date VA received the Veteran’s increased rating claims for his low back and left ear hearing loss. However, the Veteran has received a 100 percent schedular rating since December 2015, prior to the date of receipt of the increased rating claim which formed the basis of the TDIU claim. The Veteran has not argued that he is unemployable as the result of a single service-connected disability. As such, special monthly compensation is not for consideration. Accordingly, as a 100 percent schedular rating has been assigned for the duration of the period on appeal, the TDIU claim is moot. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, 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.