Citation Nr: A21020442 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 200629-94574 DATE: December 22, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to an evaluation in excess of 20 percent for degenerative arthritis of the spine is denied. REMANDED Entitlement to a compensable rating for left ear hearing loss is remanded. FINDINGS OF FACT 1. The Veteran's right ear hearing loss is related to her active-duty service. 2. The Veteran's degenerative arthritis of the spine is manifested by flexion of no less than 40 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for a rating in excess of 20 percent for degenerative arthritis of the spine have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from September 1977 to November 1984 and in the U.S. Army from October 2017 to September 2018. The rating decision on appeal was issued in August 2019. In June 2020, the Veteran filed a VA Form 10182, Decision Review Request: Board Appeal and elected the Hearing docket. In April 2021, the Veteran testified at a hearing before the undersigned. A transcript of the hearing has been associated with the claims file. As the Veteran elected the hearing docket, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing. 38 C.F.R. §20.302(a). 1. Entitlement to service connection for right ear hearing loss Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels (dB) or greater; or when the auditory threshold for at least three of those frequencies are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Board points out that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., meeting the requirements of 38 C.F.R. § 3.385) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt is given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran contends her hearing loss is due to hazardous noise exposure in the military. The Board finds that the evidence of record supports a grant of service connection for right ear hearing loss. First, there is evidence of a current disability. A private audiogram confirms the Veteran's right ear hearing loss for VA purposes. During the Veteran's August 2020 private audiology examination, audiometry revealed that puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 30 35 50 50 41.25 LEFT 30 45 55 60 47.5 Second, there is evidence of an in-service event, disease, or injury. The Veteran testified at her Board hearing that she experienced hazardous noise exposure during weapons qualifications in service and subsequently suffered from hearing loss. The Veteran's military personnel records reflect she was awarded a Rifle Expert Badge while in service. Accordingly, noise exposure in service is conceded. Third, the Board finds that the evidence reflects the Veteran's right ear hearing loss is related to service. The Veteran received a VA examination in July 2019. The examiner provided a positive nexus opinion, noting the Veteran experienced positive threshold shifts of greater than normal variability, indicative of acoustic trauma in service. Additionally, the Veteran provided an opinion from her ear, nose, and throat physician. He reviewed the Veteran's service treatment records, examined the Veteran for hearing loss, and determined that there is a 50 percent or greater probability that her hearing loss is related to her military service. He also concluded her hearing loss was due to military noise exposure. See Medical Treatment Record Government Facility, received April 2021. All three Shedden elements have been met, and the Board therefore concludes that a grant of service connection for right ear hearing loss is warranted. 2. Entitlement to an evaluation in excess of 20 percent for degenerative arthritis of the spine is remanded. A disability rating is determined by the application of 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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) (holding that it 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. 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. 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 flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran asserts that an increased rating is warranted for her service-connected degenerative arthritis of the spine, which is currently rated as 20 percent disabling, pursuant to Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 20 percent rating is warranted 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 for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted 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, General Rating Formula for Diseases and Injuries of the Spine. The Notes following the General Rating Formula provide further guidance in rating diseases or injuries of the spine. Note (1) states that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that, 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. Effective February 7, 2021, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. Fed. Reg. 76,453 (November 30, 2020) (codified at 38 C.F.R. § 4.71a). When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. VAOPGCPREC 3-2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The revised musculoskeletal regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021. Here, the changes effective February 7, 2021 under 38 C.F.R. § 4.71a, Diagnostic Codes 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with IVDS under Diagnostic Code 5243 and all other intervertebral disc disabilities under 5242. As such, Diagnostic Code 5242 now reflects "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either diagnostic code 5003 or 5010)". Diagnostic Code 5243 now reflects "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses." As such, the changes do not impact the general rating formula and evaluation of the disability under the pre-and post-February 7, 2021 regulations is not required. Turning to the evidence of record, the Veteran was afforded a VA examination in July 2019. The examiner diagnosed the Veteran with degenerative arthritis of the spine. The Veteran reported daily back pain and decreased mobility. She specifically denied experiencing any flare-ups when asked by the examiner. Range of motion testing revealed forward flexion limited to 45 degrees, extension limited to 25 degrees, and a combined range of motion of 130 degrees. The examiner indicated that while the Veteran's range of motion was abnormal, the range itself did not contribute to a functional loss. Pain was noted on examination and was noted to cause a functional loss. There was pain with weight bearing and objective evidence of localized tenderness or pain on palpation of the joints. There was no loss of function or range of motion on repetition, although the examiner stated that pain could limit functional ability when the spine is used repeatedly over time and additional limitation was likely to occur. The examiner estimated that the Veteran's range of motion would decrease to about 40 degrees of forward flexion during flares. There was no evidence of guarding or muscle spasms, and muscle strength testing was normal with no indication of muscle atrophy or ankylosis. Reflex and sensory examinations were also normal. No neurological impairment was observed. The examiner found the Veteran's lumbar spine disorder to cause limitations in bending, lifting, reaching, crouching, and crawling. After consideration of the above, the Board finds that the Veteran's service-connected lumbar spine symptomatology is more nearly approximated by the 20 percent rating criteria initially assigned under Diagnostic Code 5242 because her forward flexion was limited to, at worst, 40 degrees. Even considering the estimated decrease to 40 degrees of flexion following repetitive use over time, such does not warrant a higher evaluation, as forward flexion must be limited to 30 degrees or less for a 40 percent disability rating. The Board has considered whether the Veteran's back disability resulted in a level of functional loss greater than that already contemplated by the assigned rating throughout the period on appeal. DeLuca, 8 Vet. App. at 206; 38 C.F.R. §§ 4.40, 4.45. Specifically, the Board has considered the Veteran's testimony at the April 2021 hearing, at which she reported stiffness in her back as well as trouble bending and consistent pain in the lumbar spine. She also reported flare-ups of pain and spasms with increased movement, for which she has been prescribed a TENS unit that she uses about three times a week. However, the Board does not find evidence of limited functionality warranting an increased rating at any time during the appeal period. Notably, while the Veteran reported flares of back pain, she has not provided any specific narrative describing how her back disability reduced her range of motion to a point that a higher disability rating is warranted during the appeal period. At most, there appears to be pain on motion that did not additionally limit functionality of the thoracolumbar spine. See Mitchell, 25 Vet. App. at 32 (pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.). There is no evidence of ankylosis (functional or diagnosed) or IVDS in any of the available evidence. The Board also acknowledges that, during the 90-day evidentiary window following the April 2021 hearing, the Veteran timely submitted medical evidence, to include a treatment record dated in August 2020 in which the Veteran's private physician diagnosed disc degeneration with low back pain, including symptoms recorded as "Lumbar F30, E0." The Veteran contended at the hearing that this treatment record documents a finding of forward flexion of the lumbar spine limited to 30 degrees, which would support a 40 percent rating under Diagnostic Coe 5242. However, the Board is unable to conclude that this statement supports a finding that the Veteran's lumbar spine disability had worsened during the period on appealwhich concluded approximately one year prior to the private treatment visit referenced in the medical record in question. Put another way, the Board finds that this evidence is not relevant to the period on appeal as it is outside the appeal period and thus only minimally probative as compared to the contemporaneous evidence generated during the appeal period, namely the July 2019 VA examination. In so finding, the Board also finds that the shorthand used by the physician in the August 2020 treatment record is unclear as to what, ultimately, is being represented. Upon consideration of all of the above, the Board finds this evidence to be less probative and insufficient to support an increased rating. The Board acknowledges the Veteran's contentions that her service-connected lumbar spine disability warrants an increased evaluation. Lay people are competent to report on matters observed or within their personal knowledge, such as back pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Furthermore, there is no reason to doubt her credibility. However, the Board must emphasize that the Veteran is not competent to accurately interpret clinical findings pertaining to musculoskeletal disorders, to include a lumbar spine disability, as this requires specialized knowledge and training. 38 C.F.R. § 3.159(a)(1); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The VA examination report is completed by medical professionals and is specifically responsive to the diagnostic criteria in VA's schedule of ratings and includes consideration of the Veteran's lay reports. Consequently, the Board finds the VA examination report and medical evidence of record more probative in determining the severity of the Veteran's service-connected lumbar spine disability. The Board has also considered whether a separate evaluation for any neurological disability is warranted. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). However, the Veteran is not diagnosed with radiculopathy or other neurological disability, and no neurological impairments are shown in the lay or medical evidence of record warranting a separate evaluation. In light of the above, the Board finds that the Veteran is not entitled to a disability evaluation in excess of 20 percent for her service-connected lumbar spine disability. A preponderance of the evidence weighs against the assignment of an increased evaluation, and the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b). The claim is denied. REASONS FOR REMAND 1. Entitlement to a compensable rating for right ear hearing loss is remanded. The Board finds that the Veteran's claim for an initial compensable rating for right ear hearing loss is inextricably intertwined with the claim for service connection for left ear hearing loss granted herein, and that adjudication for a rating decision, bilaterally, should be conducted by the AOJ in the first instance. Although the Board sincerely regrets the additional delay, this action is necessary to ensure that the Veteran's claims are afforded every possible consideration. Appellate adjudication on the merits for the right ear is now inappropriate in lieu of the grant of service connection for the left ear, decided herein, as it requires the application of a wholly separate rating table. See 38 C.F.R. § 4.85. Such evaluation is dependent on the initial rating of the left ear, which has not been determined, in the first instance, by the AOJ. 38 C.F.R. § 4.85(h) Table VII. Therefore, the Board finds that a rating decision of, now, service-connected bilateral hearing loss, in the first instance, is required by the AOJ, prior to any appellate review and adjudication by the Board. The matters are REMANDED for the following action: Provide the Veteran with an appropriate examination to determine the severity of the now-service-connected bilateral ear hearing loss. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Javed, 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.