Citation Nr: 21005884 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-41 776 DATE: February 2, 2021 ORDER Service connection for craniocervical arteriovenous fistula is granted. A rating in excess of 10 percent for tinnitus is denied. REMANDED Service connection for bilateral hearing loss is remanded. A compensable rating for lumbar spine degenerative disc disease prior to April 20, 2015, and a rating in excess of 20 percent thereafter, is remanded. FINDINGS OF FACT 1. The probative evidence is at least in equipoise as to whether the Veteran’s craniocervical arteriovenous fistula is related to service. 2. The Veteran’s tinnitus is assigned the maximum rating authorized under Diagnostic Code 6260. CONCLUSIONS OF LAW 1. The criteria for service connection for craniocervical arteriovenous fistula are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a rating in excess of 10 percent for tinnitus are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, DC 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2009 to July 2009. He also had a period of active duty for training from July 1999 to November 1999. 1. Service connection for craniocervical arteriovenous fistula is granted. The Veteran contends arteriovenous malformation related to the wear and tear of physical training and desert training during active service. Specifically, the Veteran contends his doctor stated trauma or repeated use could have caused his arteriovenous malformation. The Veteran stated that preparing for mobilization during service required physical training and desert training with a lot of gear. The Veteran stated that his civilian occupation was as a grocery store manager. See August 2015 statement. A September 2014 medical opinion from the Veteran’s treating doctor stated the Veteran has a complex craniocervical arteriovenous fistula. The clinician stated the origin of these fistulas can be difficult to pinpoint, but trauma or repeated micro-trauma in this case is a likely candidate. The clinician opined it is as likely as not the Veteran’s service-related activities contributed to the formation of this craniocervical arteriovenous fistula. A December 2018 VA examination diagnosed arteriovenous malformation. The clinician opined the Veteran’s arteriovenous malformation was less likely as not related to service. The clinician stated a review of medical journals show that an AV malformation can develop later in life, but it is extremely hard to pinpoint the cause even with trauma or micro-trauma. The Board gives probative weight to the September 2014 treating opinion that it is as likely as not the Veteran’s service-related activities contributed to the formation of his craniocervical arteriovenous fistula. The doctor is a specialist with a several year treatment relationship with the Veteran. The opinion is based on an accurate medical history and provided a clear conclusion and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board gives less probative weight to the December 2018 VA medical opinion. This opinion was provided by a nurse practitioner. The clinician did not discuss the Veteran’s contentions or the September 2014 private treatment opinion in support of the claim. Accordingly, as the evidence is at least in equipoise, service connection for craniocervical arteriovenous fistula is granted. 2. A rating in excess of 10 percent for tinnitus is denied. The Veteran’s tinnitus is assigned a 10 percent rating under 38 C.F.R. § 4.87, DC 6260. Under DC 6260, a single 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. The maximum schedular rating available for tinnitus is 10 percent. 38 U.S.C. § 1155; 38 C.F.R. § 4.87; Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006). Here, the Veteran’s tinnitus has been assigned the maximum schedular rating available for tinnitus under Diagnostic Code 6260. As such, there is no legal basis upon which to award a higher rating. Accordingly, a rating in excess of 10 percent for tinnitus is denied. REASONS FOR REMAND 1. Service connection for bilateral hearing loss The Veteran was last provided a VA examination for hearing loss in December 2013, which did not find hearing loss disability for VA purposes. Subsequently, the Veteran reported noticing increased hearing loss. See September 2014 VA Form 9, August 2016 and December 2016 VA treatment notes. The Board finds a new examination is warranted to determine whether the Veteran has current hearing loss disability for VA purposes. 2. A compensable rating for lumbar spine degenerative disc disease prior to April 20, 2015, and a rating in excess of 20 percent thereafter The July 2015 VA examiner stated he was unable to say without mere speculation whether pain, weakness, fatigability or incoordination would significantly limit the Veteran’s functional ability with repeated use over time or flare-ups. It does not appear the examiner attempted to elicit relevant information regarding the description of the Veteran’s additional functional loss suffered during repeated use over time or flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination for hearing loss by an appropriate clinician. The results of audiological testing must include, in numeric decibels, the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz and must provide speech recognition scores using the Maryland CNC test. If hearing loss disability under 38 C.F.R. § 3.385 is found, is it at least as likely as not (50 percent or greater probability) the Veteran's hearing loss disability manifested during active duty service or is otherwise related to active duty service? The examiner should address any shifts of acuity thresholds found in the STRs even if the shifts do not amount to a hearing loss disability under 38 C.F.R. § 3.385. The clinician should consider the Veteran’s statement that he noticed hearing loss since service. See April 2014 NOD. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (Continued on the next page)   The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Winkler, 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.