Citation Nr: 21071707
Decision Date: 12/01/21	Archive Date: 12/01/21

DOCKET NO. 17-37 141
DATE: December 1, 2021

ORDER

Entitlement to service connection for tinnitus is granted.

Entitlement to a 10 percent disability rating, but no higher, for thoracolumbar strain (back disability) prior to February 19, 2018, is granted. 

REMANDED

Entitlement to an evaluation in excess of 20 percent for thoracolumbar strain since February 19, 2018, is remanded.

Entitlement to service connection for neck pain is remanded.

Entitlement to service connection for foot pain is remanded.

FINDINGS OF FACT

1. The Veteran presented competent and credible evidence of experiencing ear ringing during and since service.

2. Prior to February 19, 2018, the Veteran's back disability was manifested by forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

2. The criteria for entitlement to a 10 percent disability rating, but no higher, for thoracolumbar strain prior to February 19, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5237

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service with the United States Marine Corps from June 2004 to September 2008.  This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ).

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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).

Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d).

Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Tinnitus, as an organic disease of the nervous system, is a listed disease.

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a).

The Veteran is diagnosed with tinnitus, a disability capable of lay observation and diagnosis.  Post service treatment records documented that the Veteran was positive for tinnitus in December 2016.

Service treatment records (STRs) are silent for any complaints of or diagnosis of tinnitus. However, a June 2004 audiogram documented that she was routinely around noise exposure and had steady noise exposure. 

In an April 2019 statement, the Veteran stated that she experienced ringing in her ears during her assignment at HMT-301, a training helicopter squadron, in 2004. She was frequently exposed to noise while delivering mail to each shop on the flight line. While she did wear ear plugs as issued, they did not work. The Veteran noticed ringing in her ears when she laid down or was in a silent place.

After a careful review of all the evidence, lay and medical, the Board finds that the Veteran has a current diagnosis of tinnitus that is related to her service. The Veteran was exposed to noise in-service, and competently and credibly reports the onset of tinnitus in and after service. The preponderance of evidence favors the claim, and entitlement to service connection for tinnitus is granted.

Increased Rating

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. 

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994).

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007).

The Veteran's service-connected back disability is currently rated under Diagnostic Codes 5237. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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 40 percent rating is warranted where there is forward flexion of the thoracolumbar spine of 30 degrees or less. A higher 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. In addition, any associated objective neurologic abnormalities are evaluated separately under the appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note 1.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula, Note (2); see also Plate V.

Alternatively, intervertebral disc disease (IVDS) can be evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes. Under that Formula, a 10 percent rating is assigned where intervertebral disc syndrome is manifested by incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted where incapacitating episodes have a total duration of at least two weeks but less than 4 weeks during the past 12 months.

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 December 2014, the Veteran was afforded a VA examination. The Veteran was diagnosed with thoracolumbar strain. She reported that she had occasional numbness and tingling in her bilateral legs. She described her flare-ups as pain once a month for four days, with a mild severity. Her initial range of motion (ROM) was 90 degrees for flexion, 30 degrees for extension, 30 degrees for right and left lateral flexion, and 30 degrees for right and left lateral rotation. The Veteran was able to perform repetitive use testing without additional limitation in ROM or functional loss/impairment. She did not have localized tenderness or pain to palpation for joints and/or soft tissue of the back. She did not have guarding or muscle spasm. She had normal muscle strength testing. The Veteran did not have muscle atrophy. She had a normal reflex and sensory examination. She had a negative straight leg raising test. She did not have a radicular pain or any other signs or symptoms due to radiculopathy. She did not have any other neurologic abnormalities or findings related to her back condition (such as bowel or bladder problems/pathologic reflexes. She did not have IVDS of the back. She did not use an assistive device for her condition. The examiner opined that Veteran's back condition did not impact her ability to work.  

In January 2016, the Veteran was afforded a VA examination. The Veteran did not have a current diagnosis associated with the back. She reported that she had flare-ups of the back. She noted that getting out of bed and walking could be more painful during flare-ups. Her flare-ups were one week per month and often during luteal phase. She described her functional impacts/loss as being stuck in bed. Her initial ROM was 70 degrees for flexion, 10 degrees for extension, 5 degrees for right and left lateral flexion, and 25 degrees for right lateral rotation, and 30 degrees and left lateral rotation. ROM itself did not contribute to a functional loss. Pain was not noted on the examination. There was no objective evidence of localized tenderness or pain on palpation of the joint associated soft tissue of the back. There was no evidence of pain with weight bearing. There was no additional loss of function or ROM after three repetitions. The examiner noted that the examination was medically inconsistent with the Veteran's statements describing functional loss with repetitive use over time or flare-ups. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or during flare-ups. The Veteran did not have guarding or muscle spasm of the back. She had localized tenderness not resulting in abnormal gait or abnormal spinal contour. There was tenderness, but no spasm, from T12 down through L5, and the scrum and midline tailbone. There was less movement than normal as a contributing factor of her disability. She had a muscle strength testing. The Veteran did have muscle atrophy. She had an abnormal sensory examination. The Veteran had a negative straight leg raising test. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis of the spine. The Veteran had any other neurologic abnormalities or findings related to her spine. She did not have IVDS of the spine. The Veteran did not use an assistive device for her condition. The examiner opined that the Veteran's back condition did not impact her ability to work. The examiner noted that the Veteran's diagnosed back disability had resolved. The pattern of abnormalities, history, and examination made confirming a diagnosis highly speculative.

In February 2018, the Veteran was afforded a VA examination. The Veteran was diagnosed with a thoracolumbar strain. She reported that she worked less and was less active because of her condition. She did yoga, took medication, and minimized her workouts to help with her condition. She did not report any flare-ups or functional loss/impairment of the back during the examination. Her initial ROM was 50 degrees for flexion, 40 degrees for extension, 5 degrees for right and left lateral flexion, and 30 degrees for right and left rotation. ROM itself did not contribute to a functional loss. There was no pain noted on examination. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the spine. There was no evidence of pain with weight bearing. She was able to perform repetitive use testing with no additional loss of function or ROM. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or flare-ups. The examiner noted that based on the history and examination, there was no loss of ROM expected. The examiner indicated that the history was inconsistent with the diagnosis and the examination was inconsistent with the history and diagnosis. There was self-limitation noted on examination. The examiner noted that although flares were roughly described, they were not highly consistent with a flare. The examiner indicated that the examination had low reliability. There was no guarding or muscle spasm of the spine. There were no additional contributing factors of her disability. She had a normal muscle strength testing. She did not have muscle atrophy. The Veteran had a normal reflex examination and sensory examination. She had a negative straight leg raising rest. She did not have radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis of the spine. The Veteran did not have any other neurologic abnormalities or findings related to the spine (such as bowel or bladder problem/pathologic reflexes. She did not have IVDS of the spine. The Veteran did not use an assistive device for her condition. The examiner opined that the Veteran's back condition did not impact her ability to work. The examiner remarked that the history was vague and nonspecific. He noted that there was no diagnosis of thoracolumbar spondylosis. During the examination when palpating throughout the back, she would squirm. He noted that when testing the ROM, she would constantly shake her hands, but this was unrelated to her condition. There was no evidence of pain when the back was used in nonweight-bearing. Performing passive ROM for the back could not be performed or was not medically appropriate.  

The Board finds that, a 10 percent rating, but no higher, is warranted for the period prior to February 19, 2018. The Veteran demonstrated forward flexion of the spine greater than 60 degrees but not greater than 85 degrees. During the December 2014 examination, the Veteran complained of occasional numbness. She described her flare-ups as pain once a month for four days with a mild severity. During the January 2016 examination report, the Veteran demonstrated forward flexion to 70 degrees. She reported that her flare-ups caused more pain when getting out of bed and walking. Thus, the Veteran's lumbar spine disability warrants a 10 percent rating, but no higher, for the period prior to February 19, 2018. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).

However, the evidence does not show her flexion not greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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. Therefore, she does not meet the criteria for a 20 percent rating.

In sum, the Board finds that a 10 percent disability rating, but no higher, for her back disability is warranted prior to February 19, 2018.

REASONS FOR REMAND

Thoracolumbar Strain

The Veteran was most recently examined in connection with her low back in February 2018.  The evidence of record demonstrates that her condition has worsened since her last VA examination for her back. Therefore, remand is necessary to schedule another VA back examination to determine the severity of her disability.

Neck Pain 

In December 2014, the Veteran was afforded a VA examination. The Veteran was diagnosed with a cervical strain. The Veteran reported that she had a long history of neck pain. However, she was not able to remember how her pain started. The examiner opined that the Veteran's neck disability was less likely than not incurred in or caused by in-service injury, event, or illness. Her rationale was that the records did not document any complaints or evaluation of a neck disability during active duty. The Board finds the VA examiner's opinion inadequate. The examiner largely based the negative opinion on the fact that the STRs were silent for any complaint or documentation of a neck disability during service, and did not weigh lay statements. A new VA examination and opinion is required.

Foot Pain

The Veteran has not been afforded a VA examination for her foot pain disability. The March 2004 enlistment examination documented that she had an abnormal clinical evaluation regarding the feet; the Veteran had mild pes planus asymptomatic. A June 2004 service treatment record documents that she had bilateral foot discoloration and blisters on her feet. Post service treatment records documented the Veteran complained of foot pain. 

There is no medical opinion as to whether the Veteran's claimed foot pain is related to her military service. Where there is evidence of a current disability and an in-service incident or injury, and the possibility of a nexus between them, remand is required to obtain an examination and medical opinion. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA back examination to evaluate the nature and severity of his service-connected low back disability.

2. Schedule the Veteran for a VA neck examination. The claims folder must be reviewed in conjunction with the examination. The examiner must identify all current conditions of the cervical spine.

The examiner must opine as to whether it is at least as likely as not that any currently diagnosed neck disability was caused or aggravated by service, or a service-connected disability. The Veteran's competent and credible lay statements regarding her history of pain must be addressed.

A complete rationale for any opinion expressed is required.

3. Schedule the Veteran for a VA foot conditions examination. The claims folder must be reviewed in conjunction with the examination. All current conditions of the left and right feet must be identified.

If pes planus is diagnosed, the examiner must opine as to whether such was NOT clearly and unmistakably aggravated by service. 

For all diagnosed conditions other than pes planus, the examiner must opine as to whether it is at least as likely as not such was caused or aggravated by service.

The examiner is informed that pain which causes impaired function (limitations of motion, weakness, fatigue, lack of endurance, incoordination, avoidance of activities, etc.) is to be considered a disability even in the absence of identifiable pathology. 

A complete rationale for any opinion expressed is required.

4. Upon completion of the above, and any additional development deemed appropriate, readjudicate the remanded issues. If any benefit sought remains denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order.

 

 

WILLIAM H. DONNELLY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Baxter 

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.