Citation Nr: 21076980 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-65 544 DATE: December 28, 2021 ORDER Entitlement to a compensable rating, prior to February 16, 2021, for bilateral hearing loss is denied. Entitlement to a rating in excess of 30 percent, on and after February 16, 2021, for bilateral hearing loss is denied. Entitlement to a rating in excess of 10 percent, prior to February 15, 2021, for lumbar degenerative joint disease is denied. Entitlement to a rating in excess of 40 percent, on and after February 15, 2021, for lumbar degenerative joint disease is denied. INTRODUCTION The Veteran served on active duty from January 1969 to January 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. In January 2021, the Board remanded the Veteran's claim for additional development. After the issuance of a March 2021 supplemental statement of the case, the appeal has been remitted to the Board for further appellate review. FINDINGS OF FACT 1. Prior to February 16, 2021, the Veteran's bilateral hearing loss is manifested by audiometric test results corresponding to numeric designations of, at worst, Level II for his right ear and Level IV for his left ear. 2. On and after February 16, 2021, the Veteran's bilateral hearing loss is manifested by audiometric test results corresponding to numeric designations of Level VI for his right ear (based on an exceptional pattern of hearing) and Level VI for his left ear. 3. Prior to February 7, 2021, and from February 7, 2021 to February 15, 2021, the preponderance of the evidence is against finding that the Veteran's service-connected lumbar degenerative joint disease is manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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. 4. On and after February 15, 2021, the preponderance of the evidence is against finding that the Veteran's service-connected lumbar degenerative joint disease is manifested by unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. Prior to February 16, 2021, the criteria for a compensable rating for bilateral hearing loss have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. 2. On and after February 16, 2021, the criteria for a rating in excess of 30 percent for bilateral hearing loss have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. 3. The criteria for a disability rating in excess of 10 percent prior February 7, 2021, or from February 7, 2021 to February 15, 2021, for lumbar degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5242. 4. The criteria for a disability rating in excess of 40 percent on and after February 15, 2021, for lumbar degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In January 2021, the Board remanded the Veteran's claims for additional development, specifically to provide the Veteran with VA examinations to assess the severity of his bilateral hearing loss and lumbar degenerative joint disease. The requested examinations were administered in February 2021, after which the RO re-adjudicated the Veteran's claims. In a March 2021 rating decision, the RO increased the rating assigned to the Veteran's bilateral hearing loss from noncompensable to 30 percent, effective February 16, 2021, and increased the rating assigned to the Veteran's lumbar degenerative joint disease from 10 percent to 40 percent, effective February 15, 2021. The RO then issued a March 2021 supplemental statement of the case before remitting the appeal to the Board for further appellate review. The Board finds that the RO substantially complied with the January 2021 remand directive and, thus, another remand is not required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Further, because the Veteran did not limit his appeal to the already granted benefits and because the full benefits allowable have not been granted, his claims remain pending before VA as modified above by the March 2021 rating decision. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Bilateral Hearing Loss The severity of hearing loss is determined by comparing audiometric test results with the specific criteria. 38 C.F.R. § 4.85, Diagnostic Codes 6100 through 6110. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of 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. The Rating Schedule allows for such audiometric test results to be translated into a numeric designation ranging from Level I to Level XI, in order to evaluate the degree of disability from service-connected defective hearing. The evaluations derived from the Rating Schedule are intended to make proper allowance for improvement by hearing aids. Prior to February 16, 2021 In May 2014, the Veteran underwent an examination in order to ascertain the severity of his bilateral hearing loss. This VA examination determined that the Veteran's right ear puretone threshold average was 57.5 decibels and his left ear puretone threshold was 65 decibels. Speech recognition testing using the Maryland CNC wordlist resulted in a score of 84 percent for the Veteran's right ear and 94 percent for his left ear. In December 2016, the Veteran underwent a VA examination in order to ascertain the severity of his bilateral hearing loss. This VA examination determined that the Veteran's right ear puretone threshold average was 72.5 decibels and his left ear puretone threshold was 53.75 decibels. Speech recognition testing using the Maryland CNC wordlist resulted in a score of 94 percent for the Veteran's right ear and 80 percent for his left ear. In February 2017, the Veteran underwent another examination to ascertain the severity of his bilateral hearing loss. The examiner determined that the Veteran right ear puretone threshold average was 68.75 decibels and his left ear puretone threshold was 63.75 decibels. Speech recognition testing using the Maryland CNC wordlist resulted in a score of 94 percent for the Veteran's right ear and 96 percent for his left ear. Applying the audiometric results to the Rating Schedule reveals, at worst, a numeric designation of Level II for the Veteran's right ear, and a numeric designation of Level IV for his left ear. See 38 C.F.R. § 4.85, Table VI, Diagnostic Code 6100. Applying these numeric designations to Table VII results in a 10 percent rating. See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. The rating criteria provide for rating exceptional patterns of hearing impairment under the provisions of 38 C.F.R. § 4.86. However, the Veteran's audiological test results prior to February 16, 2021, failed to demonstrate puretone thresholds of 55 decibels or more in all four frequencies of 1000, 2000, 3000, and 4000 Hertz, in either ear. As such, a rating for an exceptional pattern of hearing impairment is not warranted prior to February 16, 2021. 38 C.F.R. § 4.86(a). Additionally, with respect to an exceptional pattern of hearing loss, the evidence of record does not include an examination wherein the Veteran's same ear exhibited both a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels of more at 2000 Hertz. Thus, additional consideration for an exceptional pattern of hearing impairment is not warranted in either ear prior to February 16, 2021. 38 C.F.R. § 4.86(b). On and After February 16, 2021 On February 16, 2021, the Veteran underwent a VA examination in order to assess the severity of his service-connected bilateral hearing loss. This VA examination determined that the Veteran's right ear puretone threshold average was 73.75 decibels and his left ear puretone threshold was 70.0 decibels. Speech recognition testing using the Maryland CNC wordlist resulted in a score of 84 percent for the Veteran's right ear and 72 percent for his left ear. Applying these audiometric results to the Rating Schedule reveals a numeric designation of Level III for the Veteran's right ear, and a numeric designation of Level VI for his left ear. See 38 C.F.R. § 4.85, Table VI, Diagnostic Code 6100. Applying these numeric designations to Table VII results in a 10 percent rating. See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. The rating criteria provide for rating exceptional patterns of hearing impairment under the provisions of 38 C.F.R. § 4.86. The Veteran's February 16, 2021 audiological test results demonstrate puretone thresholds of 55 decibels or more in all four frequencies of 1000, 2000, 3000, and 4000 Hertz, in his right ear, but not his left. As such, the Board will determine the numeric designation for the Veteran's right ear from either Table VI or Table VIa, and will utilize the higher designation. 38 C.F.R. § 4.86(a). As determined immediately above, using the February 16, 2021 results, the Veteran's right ear numeric designation derived from Table VI is Level III. However, applying the February 16, 2021 results to Table VIa result in a numeric designation of Level VI; as such, Level VI will be used. Applying these numeric designations (Level VI for right ear based on an exceptional pattern of hearing according to Table VIa, and Level VI for left ear according to Table VI) to Table VII results in a 30 percent rating. See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. Additionally, with respect to an exceptional pattern of hearing loss, although the February 16, 2021 results demonstrate a puretone threshold of 70 decibels or greater at 2000 Hertz, bilaterally, the puretone thresholds at 1000 Hertz exceed 30 decibels, bilaterally. Thus, additional consideration for an exceptional pattern of hearing impairment is not warranted in either ear on and after February 16, 2021. 38 C.F.R. § 4.86(b). Disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Thus, based on the audiometric findings of record, a rating in excess of 10 percent prior to February 16, 2021, and in excess of 30 percent on and after February 16, 2021, for bilateral hearing loss is not warranted. Lumbar Degenerative Joint Disease Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. Disabilities of the thoracolumbar spine are rated under a General Rating Formula (Formula). 38 C.F.R. § 4.71a. The Formula ratings apply with or without symptoms such as pain, stiffness, or aching. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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 evaluation is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted it there is unfavorable ankylosis of the entire thoracolumbar spine. The Formula provides for a separate rating for any associated objective neurologic impairment. Throughout the pendency of this appeal, the evidence of record demonstrates that the Veteran's lumbar disability could not be diagnosed as intervertebral disc syndrome. As such, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not for application before or after February 7, 2021. The Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, with regard to the Veteran's claim. Prior to February 7, 2021 and From February 7, 2021 to February 15, 2021 Prior to February 7, 2021, and from February 7, 2021 to February 15, 2021, the Veteran's service-connected lumbar degenerative joint disease has been assigned a 10 percent rating pursuant to Diagnostic Code 5242. The Veteran contends that he is entitled to an increased disability rating during both of these periods. In May 2014, the Veteran underwent a VA examination, during which the Veteran denied flare-ups. Range of motion testing was administered and revealed the following: flexion to 90 degrees or greater, with no objective evidence of painful motion; and extension and bilateral lateral flexion and rotation to 30 degrees or greater, with no objective evidence of painful motion. No changes to range of motion were noted after repeat range of motion testing. The examiner indicated that the Veteran did not experience any functional loss and/or functional impairment and, further, found that pain, weakness, fatigability, and incoordination did not significantly limit functional ability during flare-ups. There was no localized tenderness or pain on palpation, muscle strength testing was normal in each tested aspect, there was no atrophy, reflexes were normal, and sensory testing was normal. Straight leg testing was negative, no radiculopathy was noted, and no other neurological abnormalities were detected. The examiner determined that the Veteran's disability was not diagnosable as intervertebral disc syndrome. The Veteran did not utilize an assistive device for ambulation. After reviewing imaging studies, the examiner opined that the Veteran was limited in bending, tilting to one side, or any lateral rotation "with an applied load of 20 [pounds] or more." In December 2016, the Veteran underwent a VA examination to ascertain the severity of his service-connected lumbar disability. Since the previous examination, the Veteran reported a "major increase" in low back pain, which he described as "dull to sharp," as well as pain in both of his legs. Moreover, the Veteran reported flare-ups occurring with lifting and bending. Regarding functional loss, the Veteran endorsed no lifting over 10 pounds and "very limited" bending. Range of motion testing was administered and revealed the following: flexion to 70 degrees; extension and bilateral lateral rotation to 20 degrees; and bilateral lateral rotation to 30 degrees. The Veteran exhibited pain on flexion, extension, and bilateral lateral flexion, but there was no pain noted on weight bearing. The Veteran was no able to perform repeat range of motion testing without additional loss of function or range of motion. The examiner noted objective evidence of paraspinous muscle tenderness. The examiner was unable to opine as to whether pain, weakness, fatiguability, or incoordination significantly limited the Veteran's functional ability with repeat use over time without resorting to mere speculation. However, the examiner determined that the examination was consistent with the Veteran statements describing functional loss during flare-ups. Specifically, the examiner found that pain and lack of endurance significantly limited the Veteran's functional ability during flare-ups, but that this additional limitation could not be described in degrees of motion. Muscle strength testing was normal. A reflex examination revealed hypoactive responses (+1), bilaterally, at the knee and ankle, but a sensory examination was normal, and the examiner found no sign or symptom due to radiculopathy. Further, there was no evidence of other neurological abnormality or intervertebral disc syndrome. After reviewing imaging studies, no other significant findings were noted, but the examiner remarked that the disability had increased in severity. In January 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Veteran described how his lumbar disability had worsened since the December 2016 VA examination, including altered ambulation, inability to bend very much, and pain. Beyond medication to manage his pain, the Veteran endorsed limited stretching, heat packs, ointments, and injections as treatment for this disability. The Board has considered the evidence of record prior to February 15, 2021. The Board notes that the VA examiners are medical professionals, competent to measure motion, determine physical characteristics and deformities, and opine as to the severity of the Veteran's lumbar disability. There is no evidence that the examiners' assessments or opinions are not credible. Moreover, the examiners provided analyses based upon both subjective and objective information to form an opinion based upon medical expertise. As such, the Board affords the examinations significant probative weight. The Veteran's VA and private treatment records indicate that he sought treatment for his lumbar disability. However, the treatment records do not contain information which differs significantly from the above noted examinations. Further, the Board has considered the Veteran's lay contentions and finds the lay statements are competent insofar as they report observable symptoms, such as pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent the Veteran asserts that his current disability entitles him to a higher disability rating, such statements are inconsistent with the medical evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Upon careful consideration of the evidence, the Board determines that a disability rating in excess of 10 percent prior to February 15, 2021, for the Veteran's lumbar spine degenerative joint disease is not warranted. The 10 percent rating contemplates the Veteran's limitation of motion due to pain. A rating in excess of 10 percent would require forward flexion less than 60 degrees, combined range of motion of the thoracolumbar spine less than 120 degrees, muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, ankylosis of the Veteran's spine, or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks during the last 12 months. Neither ankylosis nor intervertebral disc syndrome of the Veteran's spine was observed at any point during the appeal period. The evidence of the record shows that the Veteran does not meet the requirements for a higher disability rating prior to February 7, 2021 or from February 7, 2021 to February 15, 2021. For these reasons, the Board finds that a disability rating in excess of 10 percent for the Veteran's lumbar degenerative joint disease is not warranted. Therefore, the claim must be denied. The evidence preponderates against an increase during these periods, so reasonable doubt provisions are inapplicable. 38 C.F.R. § 3.102. On and After February 15, 2021 Pursuant to the Board's January 2021 remand, the Veteran was provided and underwent a VA examination on February 15, 2021. Thereafter, in a March 2021 rating decision, the RO increased the 10 percent rating to 40 percent, effective February 15, 2021. Thus, on and after February 15, 2021, the Veteran's service-connected lumbar degenerative joint disease has already been assigned a 40 percent rating. A rating in excess of 40 percent is not warranted at any time on and after February 15, 2021. There is no evidence, to include history, of unfavorable ankylosis of the entire thoracolumbar spine. Indeed, a February 15, 2021 VA examiner specifically determined that no ankylosis was present. The Board notes that as 40 percent is the highest schedular rating for limitation of motion of the spine, the regulatory provisions (38 C.F.R. §§ 4.40, 4.45) pertaining to functional loss are not for application. Sharp v. Shulkin, 29 Vet. App. 26 (2017); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The Board has considered Correia v. McDonald, 28 Vet. App. 158 (2016), which holds that 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. However, given the Veteran is receiving the maximum rating based on limitation of motion of the thoracolumbar spine, and a higher rating requires unfavorable ankylosis of the entire spine, there is no prejudice in any VA examination failing to comply with § 4.59 as interpreted in Correia. The Board has considered whether a separate rating for a neurological abnormality is available but finds none is warranted. In an April 2021 rating decision, the RO granted service connection for right and left lower extremity radiculopathy and assigned separate 10 percent ratings thereto, effective December 23, 2020. The Veteran did not perfect appeals as to the ratings or the effective dates for these disabilities. There is no evidence of an additional objective neurological abnormalities associated with the Veteran's lumbar degenerative joint disease that could warrant a separate rating for any distinct period throughout the pendency of this appeal. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sean G. Pflugner, 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.