Citation Nr: 21067133 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-63 250 DATE: November 3, 2021 ORDER Entitlement to a compensable evaluation from September 23, 2014, and an evaluation in excess of 10 percent from March 1, 2018, for 11th cranial nerve dysfunction status post cerebral concussion is denied. Entitlement to an evaluation in excess of 20 percent from September 23, 2014, and an evaluation in excess of 30 percent from March 1, 2018, for degenerative changes of the cervical spine is denied. REMANDED Entitlement to an initial compensable evaluation for bilateral hearing loss is remanded. FINDINGS OF FACT 1. From September 23, 2014, 11th cranial nerve dysfunction was manifested by no more than complaints of chronic neck pain as well as tenderness to trapezius muscles with normal sensory and muscle strength test findings for the 11th cranial nerve. 2. From March 1, 2018, 11th cranial nerve dysfunction is manifested by no more than moderate pain, numbness, and tingling around neck and trapezius area with moderate incomplete paralysis of the 11th cranial nerve. 3. From September 23, 2014, cervical spine degenerative changes were manifested by forward flexion of the cervical spine to 35 degrees and the combined range of motion of the cervical spine of 247 degrees. 4. From March 1, 2018, cervical spine degenerative changes are manifested by forward flexion of the cervical spine to 15 degrees or less. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable evaluation from September 23, 2014, and an evaluation in excess of 10 percent from March 1, 2018, for 11th cranial nerve dysfunction have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8211 (2021). 2. The criteria for entitlement to an evaluation in excess of 20 percent from September 23, 2014, and an evaluation in excess of 30 percent from March 1, 2018, for degenerative changes of cervical spine have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to April 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions rendered in July 2015, October 2015, March 2018, and May 2021. In the March 2018 rating decision, the Agency of Original Jurisdiction (AOJ) granted a 10 percent evaluation for 11th cranial nerve dysfunction as well as a 30 percent evaluation for cervical spine degenerative changes, each effective March 1, 2018. The Veteran is presumed to be seeking the maximum benefits allowed by law and regulation, and therefore the additional assignment of benefits is not considered to have resolved his claims. AB v. Brown, 6 Vet. App. 35 (1993). In March 2021, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In May 2021, the Board remanded these matters for additional development. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2021). 1. Entitlement to a compensable evaluation from September 23, 2014, and an evaluation in excess of 10 percent from March 1, 2018, for 11th cranial nerve dysfunction The Veteran has been awarded a noncompensable evaluation from September 23, 2014, and a 10 percent evaluation from March 1, 2018, under Diagnostic Code 8211 for 11th cranial nerve dysfunction status post cerebral concussion. He seeks higher evaluations for each time period on appeal. Neurological conditions and convulsive disorders and their residuals may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. Consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule. Diseases affecting the nerves are rated based on the degree of paralysis, neuritis, or neuralgia under 38 C.F.R. §§ 4.123, 4.124, and 4.124a. Under Diagnostic Code 8211, incomplete moderate paralysis of the 11th cranial nerve warrants a 10 percent rating, incomplete severe paralysis warrants a 20 percent rating, and complete paralysis warrants a 30 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8211. The Note states that ratings of the 11th (spinal accessory, external branch) cranial nerves are dependent upon loss of motor function of sternomastoid and trapezius muscles. Id. Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis. The maximum rating which may be assigned for neuritis not characterized by such organic changes will be that for moderate incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. From September 23, 2014, a compensable evaluation is not warranted. During this time period, probative evidence of record reflected normal right and left 11th cranial nerves. VA treatment records detailed complaints of chronic neck pain, discomfort, and grinding on movement with some arm paresthesias. Neck pain was characterized as numbness, sharp, tightness, tingling, and worsened by movement. A June 2015 VA examination report detailed normal right and left 11th cranial nerves with normal sensory and muscle strength testing. No cranial nerve abnormality was noted at that time. Private treatment records dated in 2016 detailed complaints of neck pain, stiffness, decreased limitation of motion/strength, and bilateral upper extremity paresthesias. Palpation revealed tenderness to trapezius muscles and cervical/subcranial pain limiting range of motion as well as ability to sit for long durations. The Veteran's symptoms do not more nearly approximate the rating criteria for moderate incomplete paralysis, neuritis, or neuralgia. 38 C.F.R. §§ 4.123, 4.124, 4.124a, Diagnostic Code 8211. Although the evidence establishes complaints of chronic neck pain and tenderness to trapezius muscles, it does not demonstrate any muscle atrophy, sensory disturbances, weakness, diminished reflexes, or constant pain during this time period. From March 1, 2018, an evaluation in excess of 10 percent is not warranted. In a March 2018 VA examination report, the examiner diagnosed paralysis of the 11th cranial nerve. Current symptoms were listed as moderate pain, numbness, and tingling around the neck and trapezius area with moderate incomplete paralysis on strength testing. It was noted that sensory examination findings were normal. The examiner appeared to incorrectly mark that the 12th cranial nerve exhibited incomplete, moderate paralysis. However, other parts of the examination report showed that the 12th cranial nerve was normal with full strength. The examiner further highlighted that the impact on the Veteran's ability to work from neck and upper trapezius pain, numbness, and tingling would cause difficulty with prolonged bending or heavy lifting. Additional VA treatment records during this time period detailed that cranial nerves were intact with intact sensation. In a July 2021 VA examination report, the examiner specifically found that there was no 11th cranial nerve dysfunction, with normal sensory, muscle strength, and reflex examination findings. During this time period, probative evidence of record does not show that the Veteran's symptoms were significantly disabling, as there is no evidence of any nerve dysfunction, muscle atrophy, significant sensory changes, weakness, or diminished reflexes. The Veteran's symptoms do not more nearly approximate the rating criteria for severe incomplete paralysis or neuralgia. 38 C.F.R. §§ 4.124, 4.124a, Diagnostic Code 8211. A higher rating is also not warranted for neuritis; although the evidence establishes moderate pain, numbness, and tingling around neck and trapezius area with moderate incomplete paralysis of the 11th cranial nerve, the evidence does not demonstrate loss of reflexes, muscle atrophy, or sensory disturbances during this time period. 38 C.F.R. § 4.123. The Board acknowledges that the Veteran is competent to report observable symptoms such as neck/cranial pain, stiffness, tenderness, muscle spasms, and reduced motion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). He is not, however, competent to identify a specific level of disability. Competent evidence concerning the nature and extent of the Veteran's service-connected disability has been provided by VA medical professionals who have examined him. The medical findings adequately address the criteria under which the disability is evaluated and clearly demonstrate the degree of impairment attributable to the service-connected disability. The Board accords these findings greater weight than the Veteran's complaints as to 11th cranial nerve symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Accordingly, the Veteran's contention that he is entitled to increased evaluations for his 11th cranial nerve dysfunction is outweighed by the objective medical findings of record. That is, the Board assigns greater probative value to the pertinent objective findings in the VA examination reports than to the Veteran's general belief that he was entitled to a higher rating. In sum, the Board concludes that the symptomatology noted in the medical and lay evidence has been adequately addressed by the current ratings and that the Veteran's service-connected 11th cranial nerve dysfunction residuals do not meet the applicable criteria for a compensable rating from September 23, 2014, or an evaluation in excess of 10 percent from March 1, 2018. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's increased rating claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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, 369-370 (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). 2. Entitlement to an evaluation in excess of 20 percent from September 23, 2014, and an evaluation in excess of 30 percent from March 1, 2018, for degenerative changes of the cervical spine The Veteran's service-connected cervical spine degenerative changes are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. He seeks higher evaluations for each time period on appeal. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or the combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating 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. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 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. 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). 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 the examiner record the results of range of motion testing "for pain on both active and passive motion and in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The cervical spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare-ups from the veterans themselves, when a flare-up is not observable at the time of examination. For the time period from September 23, 2014, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran's cervical spine disability. The Board acknowledges the Veteran's lay reports of symptoms of pain, stiffness, tenderness, muscle spasms, and difficulty turning his head and that there was functional loss due to pain as well as repetitive use. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in limitation of motion more nearly approximating forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. In addition, the June 2015 VA examiner noted no muscle atrophy or ankylosis, full muscle strength, normal sensory findings, no evidence of pain with weight-bearing, and normal reflexes. Private treatment records dated in 2016 detailed forward flexion to 35 degrees with painful motion. An April 2016 private MRI report of the cervical spine revealed facet arthrosis as well as neural foramina narrowing. For the time period from March 1, 2018, the Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for the Veteran's cervical spine disability. The Board acknowledges the Veteran's lay reports of symptoms such as neck pain, discomfort, stiffness, muscle spasms, difficulty with prolonged bending or heavy lifting, and difficulty turning his head and that there was functional loss due to pain, lack of endurance, and pain during repetitive use/repeated use over time/flare-ups. Less movement than normal was an additional factor contributing to his disability as well as objective evidence of pain on passive motion and during non-weight-bearing testing. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements of nightly, moderately severe flare-ups of neck pain and stiffness precipitated by sleeping in the wrong position would not result in symptoms more nearly approximating unfavorable ankylosis of the entire cervical spine. In addition, the March 2018 and July 2021 VA examiners each noted no muscle atrophy or ankylosis, full muscle strength, and normal reflexes. The Board also recognizes the findings by a private physician, D. S., M. D., in a July 2018 statement that the Veteran's radiology reports revealed diffuse ankylosis of the cervical spine. The physician indicated that those findings demonstrated unfavorable and progressive ankylosis. However, even when considering the functional limitation during flare-ups as well as the findings from D. S., M. D., the Veteran's symptoms do not more nearly approximate unfavorable ankylosis of the cervical spine as defined in the Rating Schedule (the cervical spine fixed in flexion or extension and one of the additional symptoms set forth in Note 5 above). Evidence of record during this time period clearly showed that the Veteran has range of motion of the cervical spine, even if it was noted to be very limited and painful. For example, while D. S., M. D. diagnosed unfavorable ankylosis, the physician also clearly recorded range of motion findings in all planes of the Veteran's cervical spine (such as forward flexion to 15 degrees). In addition, the July 2021 VA examiner found no ankylosis and acknowledged the Veteran's inhibition to perform cervical spine range of motion testing. However, the examiner further highlighted that the Veteran's effort demonstrated during the active range of motion portion of the physical examination was not consistent with the activities objectively observed with walking, sitting, climbing onto the examination table, and removing/putting on his shoes. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. Multiple VA examiners during the appeal period found no IVDS. VA treatment records detailed findings of degenerative disc disease up to C1-C2 but evidence of record does not show any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician during the appeal period. See 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 right and left upper extremity radiculopathy and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his cervical spine disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent from September 23, 2014, and a rating in excess of 30 percent from March 1, 2018, for service-connected cervical spine degenerative changes. In denying such ratings, 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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, 369-370 (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). REASONS FOR REMAND Entitlement to an initial compensable evaluation for bilateral hearing loss is remanded. As the electronic claims file contains a February 2016 private audiogram from Lowe Audiology as well as June 2016 and March 2018 VA audiograms with graphical representations of the audiometric evaluations without interpretations of the graphs, the AOJ must seek additional clarification of these audiograms. See Savage v. Shinseki, 24 Vet. App. 259 (2010); see also 38 C.F.R. § 4.85(a) (2021). In addition, as evidence of record only includes treatment records dated up to March 2021 from Fresno VAMC, all pertinent VA treatment records should be obtained and properly associated with the record. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following actions: 1. Obtain updated treatment records pertaining to the Veteran's service-connected bilateral hearing loss from Fresno VAMC for the time period from March 2021 to the present. 2. With any needed assistance from the Veteran, the AOJ must contact the Veteran's private treatment provider regarding the February 2016 private audiology testing at Lowe Audiology. The treatment provider must be asked to translate the graphs of the Veteran's auditory thresholds in the frequencies from 500 Hertz to 4000 Hertz to the appropriate decibels and report them in numerical form, rather than graphical form, as well as to provide clarification regarding if (and what type of) speech discrimination testing was administered and whether the testing was conducted by a state-licensed audiologist. 3. Contact VA treatment providers regarding the June 2016 and March 2018 VA audiology testing. Each treatment provider must be asked to translate the graphs of the Veteran's auditory thresholds in the frequencies from 500 Hertz to 4000 Hertz to the appropriate decibels and report them in numerical form, rather than graphical form, as well as to provide clarification regarding if (and what type of) speech discrimination testing was administered and whether the testing was conducted by a state-licensed audiologist. 4. After completing the above actions and any other necessary development, the claim on appeal must be re-adjudicated, taking into consideration all relevant evidence associated with the evidence of record since the September 2021 SSOC. If the benefit on appeal remains denied, a SSOC must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. D. Deane, 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.