Citation Nr: 21005797 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-18 170 DATE: February 2, 2021 ORDER A disability rating greater than 20 percent for degenerative disc disease of the lumbar spine (lumbar spine disability) is denied. A disability rating greater than 10 percent for Achilles tendinitis, right side, is denied. A disability rating greater than 10 percent for Achilles tendinitis, left side, is denied. A compensable disability rating for bilateral hearing loss is denied. Service connection for hypertension is granted. FINDINGS OF FACT 1. The evidence of record does not demonstrate that forward flexion of the thoracolumbar spine was limited to 30 degrees or less during the claim period. Additionally, the record does not indicate that the Veteran displayed ankylosis of the thoracolumbar spine or the entire spinal column during the claim period. 2. The evidence of record indicates that the severity of the Veteran’s right and left side Achilles tendinitis is best characterized as moderate during the entirety of the claim period. Additionally, each disability only caused moderate limitation of motion of the ankle during the claim period. 3. For the entirety of the claim period, the Veteran’s hearing loss was no worse than Level II in both ears. When hearing loss is Level II in both ears, a noncompensable rating is assigned under Table VII. 4. The evidence of record demonstrates that the Veteran’s hyperlipidemia, which first arose in service, proximately caused or attributed to his current diagnosis of hypertension. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 20 percent for a lumbar spine disability are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5243. 2. The criteria for a disability rating greater than 10 percent for Achilles tendinitis, right side, are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284, 5271. 3. The criteria for a disability rating greater than 10 percent for Achilles tendinitis, left side, are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5284, 5271. 4. The criteria for a compensable disability percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. 5. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from December 1982 to December 1985 and from December 1987 to July 2007, including service in the Southwest Asia theater of operations. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. Jurisdiction of the Veteran’s claims file currently resides with the Roanoke, Virginia RO. In January 2020, the Veteran testified at a Board hearing before the undersigned. A transcript of the hearing is of record. In April 2020, the Board dismissed applications to reopen previously denied claims of entitlement to service connection for left and right ankle tendinitis. The Board then denied service connection for high cholesterol and granted a disability rating of 70 percent for posttraumatic stress disorder (PTSD). Lastly, the Board remanded the issues of entitlement to increased ratings for a lumbar spine disability, right and left Achilles tendinitis, and bilateral hearing loss, as well as entitlement to service connection for hypertension, a skin disability of the foot, a left knee disability, and bilateral shoulder disabilities for additional development. Thereafter, in October 2020, a VA RO issued a rating decision granting the Veteran service connection for a left knee disability, right foot trench foot, left foot trench foot, tinea pedis, and bilateral shoulder disabilities. The Board finds that these grants of service connection constituted a full award of the benefits sought on appeal with respect to those issues. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning “downstream” issues, such as the compensation level assigned for the disability and the effective date). Thus, the issues of entitlement to service connection for a skin disability of the foot, a left knee disability, and bilateral shoulder disabilities are no longer in appellate status. Increased Ratings 1. Lumbar Spine Disability As indicated above in the Conclusions of Law section, the Board finds that the Veteran is not entitled to a disability rating greater than 20 percent for his lumbar spine disability. Accordingly, the Board denies the Veteran’s claim. In support of this determination, the Board first notes that the Veteran’s current 20 percent rating was assigned pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5010-5243. Diagnostic Code 5010 pertains to arthritis due to trauma and directs VA adjudicators to evaluate such disabilities as degenerative arthritis, represented by Diagnostic Code 5003. Diagnostic Code 5003 then indicates that degenerative arthritis is to be evaluated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. In the instant case, the Veteran’s disability implicates the lumbar spine and, accordingly, the Agency of Original Jurisdiction (AOJ) evaluated the Veteran’s disability pursuant to Diagnostic Code 5243. This diagnostic code permits evaluation of the disability under 2 possible formulas— (1) the General Rating Formula for Diseases and Injuries of the Spine (general rating formula), or (2) the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. VA is to select whichever formula which results in a higher rating for the Veteran. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. In this case, the Board finds the general rating formula to be the more appropriate evaluative formula as there is no indication that the Veteran experienced any incapacitating episodes during the claim period, as defined by Note (1) to Diagnostic Code 5243. Under the general rating formula, a 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or where muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. See 38 C.F.R. § 4.71a. A 40 percent rating is assigned if evidence shows forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, a 50 percent rating if the evidence shows unfavorable ankylosis of the entire thoracolumbar spine. Lastly, a 100 percent rating if the evidence shows unfavorable ankylosis of the entire spine. Id. Turning to the evidence of record, the Board acknowledges that the Veteran was provided two VA back examinations during the claim period. Firstly, during a May 2014 examination, the Veteran complained of back pain with prolonged sitting and stated that he wore a back brace at work. Additionally, he stated that he limited his lifting to lighter items and asked for help with heavy objects. The Veteran did not report that flare-ups impacted the function of his back. During initial range of motion testing, forward flexion of the thoracolumbar spine was to 90 degrees or more, and there was no objective evidence of painful motion. The Veteran performed repetitive-use testing but there was no additional loss of motion or function. Lastly, the examiner indicated that the Veteran did not have any functional loss or impairment of the back and that ankylosis of the spine was not present. A little over 6 years later, the Veteran was provided another VA back examination in July 2020. On this occasion, the Veteran’s reported current symptoms of lower back pain. Unlike the May 2014 examination, the Veteran stated that he experienced flare-ups which caused functional loss, described as his back “go[ing] out” every couple of weeks resulting in an inability to move. The Veteran also reported having difficulty picking up heavy items. During initial range of motion testing, forward flexion of the thoracolumbar spine was to 80 degrees, with objective evidence of painful motion beginning at 80 degrees. The examiner estimated that, during a flare-up, forward flexion would be limited to 70 degrees. The examiner also remarked that pain significantly limited the Veteran’s functional ability with repeated use over time. Describing this loss of functional ability in terms of range of motion, the examiner commented that forward flexion would be limited to 70 degrees. Lastly, the examiner noted that ankylosis was not present and that passive range of motion testing produced the same results as active range of motion testing. Separate from these VA examination results, the Veteran provided testimony regarding his lumbar spine disability at the January 2020 Board hearing. Firstly, the Veteran stated that his lumbar spine was constantly throbbing with pain which, on two occasions the prior year, resulted in him falling out of his truck. See Hearing Tr. at 15-16. The Veteran next testified that he was not currently receiving formal medical treatment for his back, but had been told in the past that surgery was a possibility. Id. at 16. Lastly, the Veteran remarked that he was currently limited in his ability to bend, but, with his current job, he could not avoid the bending motion. Id. at 17. In evaluating the Veteran’s lumbar spine disability, the Board concludes that the evidence of record does not demonstrate that (1) forward flexion of the thoracolumbar spine was limited 30 degrees or less, or (2) that the Veteran displayed ankylosis of the thoracolumbar spine or the entire spinal column during any portion of the claim period. Such evidence is necessary for the Board to assign a disability rating greater than 20 percent under the general rating formula. See 38 C.F.R. § 4.71a. Accordingly, the Board denies the Veteran’s claim. In reaching this conclusion, the Board acknowledges the Veteran’s reports of flare-ups in July 2020, as well as his lay testimony describing his two falls from his truck in 2019 due to back pain. However, the Board notes that the July 2020 VA examiner indicated that, during such a flare-up event, forward flexion of the thoracolumbar spine would be limited to, at most, 70 degrees. As limitation to 30 degrees or less is required for the assignment of the next higher rating of 40 percent, the Board cannot grant the Veteran’s claim, even when contemplating this greater limitation during flare-ups. See id. 2. Right and Left Achilles Tendinitis Similar to the above issue of entitlement to an increased disability rating for a lumbar spine disability, the Board also concludes that increased ratings for right and left Achilles tendinitis are not warranted in the instant case. Accordingly, the Board denies the Veteran’s claims. In support of this determination, the Board initially notes that Achilles tendinitis is an unlisted condition in the schedule of ratings for the musculoskeletal system. See id. However, this rating schedule also includes Diagnostic Code 5284 for “other” injuries of the foot. In Yancy v. McDonald, the Court of Appeals for Veterans Claims (Court) held that Diagnostic Code 5284 was to be used only to rate disabilities resulting from actual injuries, “as opposed to disabilities caused by, for example, degenerative conditions.” 27 Vet. App. 484, 491 (2016). Alongside Diagnostic Code 5284, 38 C.F.R. § 4.20 indicates that unlisted conditions are to be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. During the claim period, ankle pain was most regularly associated with the Veteran’s service-connected Achilles tendinitis. See July 2020 VA Ankle Conditions Examination Report; Hearing Tr. at 20. Accordingly, the Board will evaluate the Veteran’s disabilities pursuant to the currently-assigned diagnostic code—Diagnostic Code 5284—as well as under any other potential diagnostic codes applicable for disabilities of the ankle. Firstly, under Diagnostic Code 5284, 10, 20, and 30 percent disability ratings are respectively assigned for foot injuries characterized as moderate, moderately severe, and severe. Additionally, if there is an actual loss of use of the foot, a 40 percent rating is assigned. Comparatively, when contemplating ankle diagnostic codes possibly applicable in the instant case, the Board finds Diagnostic Code 5271—for limited motion of the ankle—to be relevant. Under Diagnostic Code 5271, moderate limited motion is assigned a 10 percent rating, while marked limited motion is assigned a 20 percent rating. 38 C.F.R. § 4.71a. Plate II defines normal ankle dorsiflexion as from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.70. Turning to the evidence of record, the Board notes that the Veteran was provided three VA examinations relevant to his service-connected Achilles tendinitis during the claim period. Firstly, during an April 2014 examination, the Veteran reported current symptoms of short-term aching pain associated with activity, difficulty with climbing and descending stairs, and an inability to run. The Veteran did not report flare-ups of his condition on either the right or left sides. During initial range of motion testing, dorsiflexion of both ankles was to 20 degrees or more and plantar flexion of both ankles was to 45 degrees or more. For both ankles, there was no objective evidence of painful motion with plantar flexion; however, objective evidence of painful motion during dorsiflexion began at 15 degrees. The examiner also indicated that pain on movement was a functional loss of both ankles. Lastly, the examiner indicated no ankylosis, joint instability, use of assistive devices, or loss of muscle strength. Less than three years later, the Veteran was provided another VA ankle examination in February 2017. The Veteran reported experiencing bilateral ankle pain and stiffness, with the pain at its worst in the morning. Additionally, the Veteran stated that he did not take medication or receive any treatment for his symptoms. During this examination, the Veteran reported experiencing flare-ups which the examiner noted as difficulty with climbing and descending stairs and an inability to run. During initial range of motion testing of the right ankle, dorsiflexion was from 0 to 20 degrees and plantar flexion was from 0 to 25 degrees. The examiner indicated that there was no objective evidence of painful motion during testing of both movements. Comparatively, during initial range of motion testing of the left ankle, dorsiflexion was from 0 to 20 degrees and plantar flexion was from 0 to 30 degrees. Similar to the right ankle, the left ankle did not display objective evidence of painful motion. Lastly, the examiner noted that there was no ankle joint ankylosis, loss of muscle strength, or joint instability. Finally, the Veteran was provided another VA ankle examination in July 2020. On this occasion, the Veteran reported current symptoms of chronic pain in the back of both ankles. Again, the Veteran indicated that he did not receive treatment or take medication for his tendinitis. When asked by the examiner, the Veteran reported flare-ups of both ankles, which he described as sharp, stabbing ankle pain occurring every other week. The Veteran also reported functional loss which he described as difficulty walking for long periods on uneven surfaces. During initial range of motion testing, both ankles displayed dorsiflexion to 15 degrees and plantar flexion to 40 degrees. The examiner noted that pain was noted on both tested movements and was first observed at 15 degrees dorsiflexion and 40 degrees plantar flexion. Although the Veteran reported experiencing flare-ups, the examiner noted that pain, weakness, fatigability, and incoordination did not significantly limit functional ability with flare-ups. Again, the examiner noted that the Veteran did not use assistive devices or display ankylosis, joint instability, or loss of muscle strength. Lastly, the examiner sated that it was less likely than not that, during a flare-up, the Veteran’s right and left Achilles tendinitis would be best characterized as “severe.” The examiner explained that the Veteran could still ambulate—even with pain—and that severe pain would likely need surgical repair. The examiner then characterized the Veteran’s pain as mild to moderate. Separate from these VA examination reports, the Veteran described his right and left ankle symptoms during the January 2020 Board hearing. Specifically, the Veteran first testified that his left and right Achilles tendinitis required him to take 15-minute breaks at work after walking. Board Hearing Tr. at 19-20. Additionally, the Veteran stated that his pain, which he rated at a 6 on a 1-to-10 scale, was concentrated in his tendons and that he did not want to take pain medication. Id. at 20. From this evidence of record, the Board finds that the Veteran’s right and left Achilles tendinitis is best characterized as moderate within the contest of Diagnostic Code 5284. As such, the Board concludes that ratings greater than 10 percent under this diagnostic code are not warranted. Similarly, the Board also finds that the Veteran’s right and left Achilles tendinitis only caused moderate limitation of motion of both ankles during the claim period. Accordingly, disability ratings greater than 10 percent under Diagnostic Code 5271 are also not warranted in the instant case. In making this decision, the Board primarily relies upon the findings of the two above-described VA examinations as well as the Veteran’s lay statements of record. In particular, the Board notes that, at worst, (1) dorsiflexion of both ankles was limited to 15 degrees, (2) plantar flexion of the right ankle was limited 25 degrees, and (3) plantar flexion of the left ankle was limited 30 degrees. As stated previously, for VA purposes, “normal” dorsiflexion is to 20 degrees while “normal” plantar flexion is to 45 degrees. The Veteran’s right and left Achilles tendinitis did not limit motion of either ankle significant enough for it to qualify as “marked” for the purpose of applying Diagnostic Code 5271 and assigning a rating greater than 10 percent. See 38 C.F.R. § 4.71a. Additionally, the Board also notes that the Veteran did not display joint instability or loss of muscle strength of either ankle during the claim period. Lastly, the Board finds the July 2020 VA examiner’s remarks discussing the severity of the Veteran’s ankle pain to be probative. Although not ultimately binding on the Board, the examiner’s categorization of the Veteran’s pain as mild to moderate is consistent with his lack of other primary symptoms besides pain, as well as his lack of regular—or even infrequent—treatment and use of medication for Achilles tendinitis. For these reasons, the Board concludes that, for the purpose of applying Diagnostic Code 5284, the Veteran’s right and left Achilles tendinitis may not be categorized as at least moderately severe, such that assignment of the next higher ratings of 20 percent must be denied in the instant case. See id. 3. Bilateral Hearing Loss Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled speech discrimination test (Maryland CNC) together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes 11 auditory hearing acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. Additionally, 38 C.F.R. § 4.86 authorizes VA to evaluate defective hearing based upon puretone thresholds alone when a claimant demonstrates exceptional patterns of hearing impairment. However, in the instant case, the Veteran did not exhibit an exceptional pattern as defined by 38 C.F.R. § 4.86 at any point during the appeal period. In the instant case, the record contains documentation of complete audiometric testing results on 2 occasions—from VA examinations in April 2014 and July 2020. In April 2014, puretone threshold testing produced an average of 45 decibels for the right ear and 50 decibels for the left ear. Additionally, the Veteran produced speech discrimination scores of 100 percent for the right ear and 96 percent for the left ear. Under Table VI of 38 C.F.R. § 4.85, the hearing loss for each of the Veteran’s ears warranted the assignment of Roman Numeral I. Applying these figures to Table VII of 38 C.F.R. § 4.85, the appropriate rating is noncompensable under Diagnostic Code 6100 where both ears are assigned Roman Numeral I. Similarly, during the July 2020 VA examination, puretone threshold testing produced an average of 38.75 decibels for the right ear and 46.25 decibels for the left ear. Additionally, the Veteran produced speech discrimination scores 88 percent for both ears. Under Table VI of 38 C.F.R. § 4.85, the hearing loss for each of the Veteran’s ears warranted the assignment of Roman Numeral II. Applying these figures to Table VII of 38 C.F.R. § 4.85, the appropriate rating is also noncompensable under Diagnostic Code 6100 where both ears are assigned Roman Numeral II. As these VA examinations were the only instances during the claim period where complete audiometric testing was documented, the Board must deny the Veteran’s claim and not assign a compensable rating as his hearing loss was not significant enough to warrant a compensable evaluation under Table VII of 38 C.F.R. § 4.85. As such, the Veteran’s claim is denied. Service Connection for Hypertension After reviewing the evidence of record, the Board finds that service connection for hypertension is warranted in the instant case. Accordingly, the Board grants the Veteran’s claim. In support of this determination, the Board notes that, generally, establishing service connection requires competent evidence of: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event. 38 C.F.R. § 3.303(a); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Here, the Board finds that the Veteran has a current diagnosis of hypertension. See, e.g., April 2014 VA Hypertension Examination Report. Accordingly, the first service connection requirement—a current disability—is satisfied. Next, regarding the next requirement of an in-service incurrence, the Board notes that the Veteran was assessed with hyperlipidemia in service. See August 2005 Service Treatment Record (STR). The Veteran has continued to experience hyperlipidemia from his separation of service up through the present. See, e.g., June 2015 VA Primary Care Provider Clinic Note. Although hyperlipidemia is a laboratory finding and is not a disability in and of itself, it may cause another disability. Accordingly, the Board finds the in-service incurrence requirement to be satisfied in the instant case. Moving to the last requirement—nexus—the Board notes that, in July 2020, a VA examiner opined that it was at least as likely as not that the Veteran’s hyperlipidemia, first diagnosed in service, proximately caused or attributed to his development of hypertension. In support of this conclusion, the examiner first stated that hypertension and high cholesterol are linked. The examiner then explained that, when arteries become hardened and narrowed with cholesterol plaque and calcium, the heart must strain harder to pump blood through them, resulting in abnormally high blood pressure. The Board finds the July 2020 VA examiner’s opinion to be adequate for adjudicative purposes. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As the final service connection requirement, nexus, has been satisfied in the instant case, the Board grants the Veteran’s claim. See 38 C.F.R. § 3.303(a). S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.S. Pettine, 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.