Citation Nr: 21005092 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 20-01 888 DATE: January 29, 2021 ORDER A compensable evaluation for right ear hearing loss is denied. A rating in excess of 40 percent for service-connected degenerative disc disease (DDD) of the lumbosacral spine is denied. A rating in excess of 20 percent for service-connected right lower extremity (RLE) radiculopathy is denied. An effective date earlier than April 30, 2018 for the grant of service connection for right lower extremity radiculopathy is denied. An effective date earlier than April 30, 2018, for the grant of a 40 percent rating for service-connected degenerative disc disease (DDD) of the lumbosacral spine is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s hearing impairment has been no worse than Level I in the right ear. 2. The DDD of the lumbosacral spine at worst approximates forward flexion to 15 degrees; there is no evidence of ankylosis. 3. The Veteran at worst has moderate radiculopathy in the RLE involving the sciatic nerve. 4. The record does not reflect any communication from the Veteran to VA evidencing intent to file a claim for an increased rating for the service-connected lumbar spine disability or for service connection for right lower extremity radiculopathy prior to April 30, 2018. 5. It is not ascertainable that an increase in the lumbar spine disability had occurred within a year of the April 30, 2018 claim. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for service-connected right ear hearing loss have been not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85, Diagnostic Code 6100. 2. The criteria for a rating in excess of 40 percent for DDD of the lumbosacral spine have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71(a), Diagnostic Code 5242. 3. The criteria for a rating in excess of 20 percent for RLE radiculopathy involving the sciatic nerve have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.124(a), Diagnostic Code 8520. 4. The criteria for an effective date earlier than April 30, 2018, for the grant of service connection for right lower extremity radiculopathy have not been met. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. 5. The criteria for an effective date earlier than April 30, 2018 for the assignment of an increased 40 percent rating for DDD of the lumbosacral spine have not been met. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1987 to July 1990 and from April 1991 to July 2010. This matter comes before the Board of Veterans’ Appeals (Board) from August and November 2018 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). Increased Ratings Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 1. Entitlement to a compensable evaluation for right ear hearing loss Disability ratings for hearing loss disability are derived from mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85 (a). Table VI, “Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85 (b). Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). “Puretone threshold average” as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d). Table VII, “Percentage Evaluations of Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e). Exceptional patterns of hearing impairment are addressed in 38 C.F.R. § 4.86. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz (Hz)) 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. 38 C.F.R. § 4.86(a). When the pure tone 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 designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). In April 2018, the Veteran filed a claim for an increased rating for his right ear hearing loss. The October 2018 Report of VA hearing loss examination reflects that the Veteran’s puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 40 45 60 LEFT 15 20 25 30 35 The Veteran’s average threshold was 43 Hz in the right ear and 28 Hz in the left ear. His speech discrimination scores were 100% bilaterally. Applying the values above to Table VI results in a Level I for the service-connected right ear, and a Level I for the left ear, due to being nonservice-connected. Application of these Roman numeral designations to Table VII results in a 0 percent, noncompensable, rating. The January 2021 Report of VA hearing loss examination reflects that the Veteran’s puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 30 45 60 LEFT 15 20 25 30 40 The Veteran’s average threshold was noted to be 40 Hz in the right ear and 28.75 Hz in the left ear. His speech discrimination scores were 96% bilaterally. Applying the values above to Table VI results in a Level I for the service-connected right ear, and a Level I for the left ear, due to being nonservice-connected. Application of these Roman numeral designations to Table VII results in a 0 percent, noncompensable, rating. A compensable rating for service-connected right ear hearing loss is not warranted and the claim is denied. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board is bound by law to apply VA’s rating schedule based on the Veteran’s audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Additionally, the examination reports documented above also consider the impact his hearing loss had on his ordinary conditions of life including his ability to work, namely that he had difficulty hearing conversations such as hearing his wife and children; had to keep the television at a loud volume; and, had difficulty hearing conversational speech with background noise. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). 2. Entitlement to a rating in excess of 40 percent for DDD of the lumbosacral spine Under the General Rating Formula for Diseases and Injuries of the Spine (Spine Formula), with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area of the spine affected by the residuals of injury or disease, a 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned 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, Diagnostic Code 5242. In addition to the Spine Formula, VA’s regulations contain a Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Ratings under this diagnostic code are assigned according to the duration of “incapacitating episodes” throughout the year due to IVDS. An “incapacitating episode” is defined as 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. Id. Pertinent to the current appeal, a 40 percent evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Id. Finally, a 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. An April 2018 private treatment record reflects that the Veteran had limited range of motion of the lumbar spine manifested by extension limited to 10 degrees (moderate restriction and moderate pain. The July 2018 Report of VA back examination documents the Veteran’s complaint of lumbar spine pain. He reported that he had been managing the back pain with chiropractic care and pain management with epidural shots. Additionally, he took medication for his back pain. He reported that he experienced occasional radiation of pain down the right lower extremity. He described the pain as a sharp pain on the right side but otherwise a lingering dull pain. His pain was relieved with rest. He quit his job as a truck driver because of his back pain. He rated the pain a constant 6 out of 10 but he experienced flare-ups of pain rated 8-9 out of 10. He complained that his back pain interfered with sleep, intimacy and daily quality of life activities. On physical examination, lumbar spine range of motion was flexion to 15 degrees; extension to 10 degrees; left lateral flexion to 10 degrees; left rotation to 25 degrees; right lateral flexion to 10 degrees, and right rotation to 20 degrees with pain in all planes of motion. Pain was noted on examination but did not result in or cause functional loss. There was evidence of pain with weight bearing and evidence of localized tenderness or pain on palpation across the mid lumbar spine. He was able to perform repetitive use testing without additional loss of function or range of motion. As the Veteran was not experiencing a flare up during examination and the joint was not tested repetitively over a period of time, the examiner was unable to report if the Veteran experienced additional range of motion loss or significantly limited functional ability due to pain, weakness, fatigability or incoordination with repeated use over time or during a flare-up. There was no objective evidence of pain on passive range of motion and passive range of motion was unchanged from active range of motion. Additionally, there was no evidence of pain when the joint was used non-weight bearing. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine and there was no evidence of ankylosis. The Veteran did not have IVDS of the thoracolumbar spine requiring physician prescribed bed rest. Muscle strength testing and sensory examination were normal but reflex examination showed some hyperactive reflexes without clonus. Straight leg testing was negative bilaterally. He experienced moderate lumbar spine radiculopathy in the sciatic nerve of the right lower extremity. The August 2020 Report of VA back examination documents the Veteran’s complaint of worsening lumbar spine disability. He complained of sharp, achy lower back pain that was worse with bending over. He experienced numbness and tingling down the right leg with leg cramping and spasms that would wake him. He receives epidural injections every six month; has regular chiropractic visits; and took Motrin as needed for the pain. He claimed his lumbar spine disability interfered with prolonged standing or sitting; limited exercising; caused sleep issues; caused fatigue; and, affected his overall quality of life and mental health. He reported that he experienced daily, severe flare-ups of back pain that lasted approximately 2 hours in duration. His flare-ups were precipitated by random use and alleviated by laying down flat. On physical examination, lumbar spine range of motion was flexion to 70 degrees; extension to 10 degrees; left lateral flexion to 15 degrees; left rotation to 30 degrees; right lateral flexion to 15 degrees, and right rotation to 30 degrees with pain in all planes of motion. Pain was noted on examination but did not result in or cause functional loss. There was no evidence of pain with weight bearing. There was localized tenderness or pain on palpation evidenced by mild pain across the paralumbar spine. He was able to perform repetitive use testing without additional loss of function or range of motion. Pain, fatigue and lack of endurance significantly limited functional ability with repeated use over time and during flare-ups but did not result in additional loss of range of motion. The Veteran did not exhibit guarding or have muscle spasms of the thoracolumbar spine. His lumbar spine disability interfered with repetitive bending or twisting for longer than 30 minutes and weightlifting over 20 pounds and caused pain and limited range of motion. He had slightly diminished muscle strength testing; hypoactive reflexes in the right lower extremity; and decreased sensation in the right lower extremity. Straight-leg raising was positive on the right but negative on the left. He experienced mild radiculopathy in the sciatic and femoral nerve of the right lower extremity. There was no ankylosis of the spine. The Veteran did not have IVDS of the thoracolumbar spine requiring physician prescribed bed rest. There was no evidence of pain on passive range of motion testing or non-weight bearing testing of the back. Here, that the Veteran had flexion of the thoracolumbar spine limited to 15 degrees at worse. (July 2018 Report of VA examination). These findings are adequately contemplated by the assigned 40 percent rating. There is no evidence of ankylosis, and the Veteran is not shown to have experienced any incapacitating episodes of IVDS that required physician prescribed bed rest over the past 12 months. Thus, higher ratings based on ankylosis and incapacitating episodes are not warranted. The 40 percent rating is the maximum evaluation for limitation of motion of the thoracolumbar spine. Therefore, further DeLuca analysis is not required. Johnston v. Brown, 10 Vet. App. 80 (1997). Accordingly, a rating in excess of 40 percent for DDD of the lumbosacral spine is not warranted. The August 2020 report of VA examination reflects that pain, fatigue and lack of endurance significantly limited functional ability with repeated use over time and during flare-ups but did not result in additional loss of range of motion. In addition, there was no evidence of pain on passive range of motion testing or non-weight bearing testing of the back. The July 2018 report of VA examination indicates that there was no objective evidence of pain on passive range of motion and passive range of motion was unchanged from active range of motion. Additionally, there was no evidence of pain when the joint was used non-weight bearing. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). 3. Entitlement to a rating in excess of 20 percent for radiculopathy of the RLE The Veteran is assigned 20 percent evaluations for the right lower extremity radiculopathy involving the sciatic nerve under Diagnostic Code 8520. Diagnostic Code 8520 pertains to paralysis of the sciatic nerve and provides that moderate incomplete paralysis warrants a 20 percent rating. Moderately severe incomplete paralysis merits a 40 percent rating. A rating of 60 percent requires severe incomplete paralysis with marked muscle atrophy. The maximum rating of 80 percent is reserved for complete paralysis shown by manifestations such as: the foot dangles and drops, no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. Words such as ‘severe,’ ‘moderate,’ and ‘mild’ are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6 (2016). Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 4.2, 4.6. The July 2018 report of VA back (thoracolumbar spine) conditions examination reflects that the Veteran experienced radicular pain in the right lower extremity manifested by moderate intermittent pain. In whole, the examiner indicated that the Veteran had moderate right lower extremity radiculopathy involving the sciatic nerve. The August 2020 report of VA back (thoracolumbar spine) conditions examination reflects that the Veteran experienced radicular pain in the right lower extremity manifested by mild constant pain, mild paresthesias and/or dysesthesias and mild numbness. In whole, the examiner indicated that the Veteran had mild right lower extremity radiculopathy involving the sciatic nerve. This evidence demonstrates that the Veteran’s right lower extremity radiculopathy involving the sciatic nerve at most manifested symptoms of moderate incomplete paralysis of the right sciatic nerve. Thus, the assigned 20 percent ratings for his right lower extremity radiculopathy involving the sciatic nerve adequately contemplates his symptoms and a rating in excess of 20 percent for the right lower extremity radiculopathy involving the sciatic nerve is not warranted. As to his claims for increased ratings for right ear hearing loss, DDD of the lumbosacral spine and RLE radiculopathy, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Effective Dates Generally, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application for said benefits. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. For claims received within a year after separation from active service, the effective date will be the day following separation from service or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(B)(2)(i). An effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. See Lalonde v. West, 12 Vet. App. 377, 382 (1999). The law provides that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b)(3). The Board notes that effective March 24, 2015, VA amended its rules as to what constitutes a valid claim, requiring that claims be submitted on an application form prescribed by VA. 79 Fed. Reg. 57696 (Sept. 25, 2014); see also 38 C.F.R. §§ 3.1(p), 3.160. However, prior to March 24, 2015, VA defined “claim” as “a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” 38 C.F.R. § 3.1(p); see also 79 Fed. Reg. 57,696 (Sept. 25, 2014) (effective March 24, 2015) (eliminating informal claims). An “informal claim” was defined as “[a]ny communication or action indicating an intent to apply for one or more benefits.” 38 C.F.R. § 3.155(a). Thus, for claims filed prior to March 24, 2015, whether formal or informal, the essential elements were (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” See Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). 4. Entitlement to an earlier effective date for the grant of service connection for right lower extremity radiculopathy The Veteran was granted service connection for right lower extremity radiculopathy in an August 2018 rating decision. The Board observes that the grant of service connection for radiculopathy was assigned pursuant to Note 1 of the General Rating Formula for Diseases and Injuries of the Spine. Specifically, entitlement to a separate rating for radiculopathy is part of the appeal for an increased rating for the thoracolumbar spine disability. The Veteran filed a claim for an increased rating for his service-connected lumbar spine condition on April 30, 2018, by filing a VA 21-0966 Intent to File. A review of the claims file does not demonstrate that there was a pending claim prior to April 30, 2018, for service connection for right lower extremity radiculopathy, nor for an increased rating for the Veteran’s service-connected lumbar condition. As noted above, the effective date for the grant of service connection shall not be earlier than the date of receipt of the application for said benefits. See Lalonde v. West, 12 Vet. App. 377 (1999); 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Accordingly, an effective date earlier than April 30, 2018, for the grant of service connection for right lower extremity radiculopathy is not warranted and the claim is denied. 5. Entitlement to an earlier effective date for assignment of the increased 40 percent rating for DDD of the lumbosacral spine The Veteran’s claim for service connection for a lower back disability was received on October 29, 2010. In the October 2011 rating decision, the RO, in pertinent part, granted service connection for lumbar strain (now DDD of the lumbosacral spine) and assigned a 10 percent rating effective August 1, 2010 (day following separation from service). The Veteran did not appeal the rating assigned for his lumbar strain (now DDD of the lumbosacral spine). The Veteran filed a claim for an increased rating for his service-connected lumbar spine condition on April 30, 2018, by filing a VA 21-0966 Intent to File. There is no record of treatment within a year of this date of filing where it is ascertainable that an increase in disability had occurred. Therefore, an effective date earlier than April 30, 2018, for the assignment of the increased 40 percent rating for the DDD of the lumbosacral spine is not warranted. 38 U.S.C. § 5110(b)(3). G. Jackson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Gorum, 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.