Citation Nr: 21006627 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 14-35 224A DATE: February 4, 2021 ORDER Entitlement to a rating in excess of 20 percent for lumbar spondylosis is denied. Entitlement to a compensable rating for right ear hearing loss is denied. REMANDED Entitlement to service connection for vertigo is remanded. FINDINGS OF FACT 1. The Veteran’s lumbar spondylosis is manifested by forward flexion up to 60 degrees with pain, lack of endurance, and weekly flare-ups. 2. At worst, he has Level II hearing loss in his service-connected right ear, and it is presumed he has Level I hearing loss in his nonservice-connected left ear.   CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to a rating greater than 20 percent for lumbar spondylosis. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5237, 5242. 2. The criteria also are not met for entitlement to a compensable rating for the right ear hearing loss. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1992 to August 1996. This appeal to the Board of Veterans’ Appeals (Board) is from November 2011 and October 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of these claims during a hearing before the undersigned Veterans Law Judge (VLJ) in January 2019. A transcript of the hearing is of record. In September 2019, the Board remanded these claims back to the RO for further development and consideration – including to obtain all outstanding treatment records relevant to the claims and to have the Veteran reexamined to reassess the severity of his lumbar spondylosis and right ear hearing and to determine whether he has Meniere’s disease (which he had claimed as vertigo) and, if confirmed he does, for a medical opinion concerning its origins – especially in terms of whether caused or aggravated by his service or a service-connected disability. At the time, he had a 10 percent rating for his lumbar spondylosis.   Concerning the lumbar spondylosis and right ear hearing loss, those remand instructions since have been completed as directed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Moreover, a September 2020 decision on remand by a Decision Review Officer (DRO) increased the rating for the lumbar spondylosis from 10 to 20 percent retroactively effective from December 3, 2010 (so for the entire appeal period). However, the Board finds there conversely has not been the required compliance, including acceptable substantial compliance, with the remand directives concerning the Veteran’s claim for service connection for vertigo. Thus, the Board is again remanding this claim. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When evaluating the severity of a disability, it is essential the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But if the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. Entitlement to a rating in excess of 20 percent for lumbar spondylosis The Veteran contends that he is entitled to an even higher rating for his lumbar spondylosis – meaning even greater than the higher 20 percent rating that was granted on remand. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (receipt of a higher rating, but less than maximum possible rating, does not abrogate a pending appeal unless the Veteran express indicates he is satisfied or content with the new rating). The Veteran’s lumbar spondylosis is rated under 38 C.F.R. § 4.71a, DC 5237, of the General Rating Formula for Diseases and Injuries of the Spine. According to this 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 higher 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. And a 100 percent rating is warranted for unfavorable ankylosis of the entire spine (meaning when additionally considering the adjacent cervical segment). Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate DC. Id. at Note (1). Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See Note (5) of the General Rating Formula. 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 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.” The spine has no opposite 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 Board finds that the preponderance of the evidence is against a rating exceeding 20 percent for the Veteran’s lumbar spondylosis. The Board acknowledges his lay reports of symptoms and that there is functional loss due to pain, premature or excess fatigability, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering his lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he has weekly flare-ups that last two to three days would not result in limitation of motion more nearly approximating forward flexion of his thoracolumbar (thoracic and lumbar) spine limited to 30 degrees or less or favorable ankylosis of his entire thoracolumbar spine. In February 2011 the Veteran underwent a VA spine examination. This examiner observed that the Veteran had forward flexion of his lumbar spine to 80 degrees, with pain starting at 70 degrees. There was no additional loss in range of motion on repetitive motion testing. The Veteran denied any neurological symptoms and the examiner did not observe any. The Veteran stated that his lumbar spondylosis causes stiffness, pain, and flare-ups of pain with prolonged walking or sitting. These findings are more consistent with a 10 percent rating (the prior rating), rather than the higher 20 percent rating the Veteran now has. In January 2019, the Veteran submitted multiple copies of a thoracolumbar spine Disability Benefits Questionnaire (DBQ) completed by a private doctor. Unfortunately, the degraded quality of the copies submitted to VA includes an illegible range of motion measurement for the Veteran’s forward flexion. Even though other range of movement measurements are legible, because the forward flexion measurement is illegible, a combined range of motion cannot be calculated based on this DBQ. This doctor did note that the Veteran has favorable ankylosis of the entire thoracolumbar spine, but this is inconsistent with the doctor also finding that the Veteran does have range of motion in his lumbar spine, albeit somewhat limited. The doctor further noted that the Veteran also has intervertebral disc syndrome (IVDS). The Board sees that diagnoses of spinal ankylosis or IVDS are not supported by any other medical evidence of record. During his January 2019 hearing, the Veteran testified that he has muscle spasms and pain in his back that he attempts to control with medicine. Further, he recalled an episode in December 2018, so the prior month, when his back “completely locked up” and he could not move. Partly because of that hearing testimony, the Board remanded this claim in September 2019 to have the Veteran reexamined to reassess the severity of his service-connected low back disability. In July 2020, the Veteran underwent this additional VA lumbar spine examination pursuant to the Board’s remand directive. At this examination, the diagnosis of only lumbar spondylosis was confirmed; no diagnosis of either ankylosis or IVDS was rendered. The Veteran had forward flexion of his lumbar spine to 60 degrees, consistent with a 20 percent rating, and a combined range of motion of 160 degrees, consistent with a lesser 10 percent rating. The examiner observed pain with and without weight bearing and throughout range of motion testing. After observed repetitive use testing, the Veteran has forward flexion to 55 degrees, after repeated use over time testing he had forward flexion to 50 degrees, and during flare-ups he estimated that his forward flexion is to 45 degrees, all with pain and lack of endurance. The examiner did not find any objective evidence of muscle spasms, ankylosis, guarding, loss of muscle strength, atrophy, or neurologic or sensory symptoms. The examiner also reiterated the Veteran does not have IVDS. His demonstrated range of motion throughout this examination, even when considering it at its’ worst, is consistent with the 20 percent rating he now has for this disability that was granted on remand based on the results of this examination. Moreover, overall, the Board finds that the July 2020 VA examination, on remand, is the most probative medical evidence of record since based on a full and true history and since it does not contain internal inconsistencies like, as an example, the January 2019 DBQ.   Consideration also has been given to assigning a higher rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the Veteran does not have IVDS and, thus, a rating for IVDS is not appropriate in this instance. See 38 C.F.R. § 4.71a, DC 5243. Regarding neurological impairment, the lay and medical evidence of record is against finding the Veteran has any owing to his lumbar spine disability (e.g., lower extremity radiculopathy, sciatic neuropathy/sciatica, etc.). For these reasons and bases, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for his lumbar spondylosis. In denying any greater rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a compensable rating for right ear hearing loss When remanding this claim in September 2019 concerning the rating for the right ear hearing loss, the Board also reopened the Veteran’s claim of entitlement to service connection for left ear hearing loss based on new and material evidence, but then proceeded to deny this other claim on its underlying merits. So, the hearing loss in his left ear, unlike in his right ear, is not service connected. The Veteran contends that his right ear hearing loss is more severe than contemplated by his current 0 percent (noncompensable) rating. 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 Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz (Hz)). 38 C.F.R. § 4.85, DC 6100. To evaluate the degree of disability from service-connected hearing loss, 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. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). When, such as in this case, impaired hearing is service-connected in only one ear, the law allows for compensation for hearing loss as if both ears were service-connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non-service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, unless the non-service-connected hearing loss is the result of the Veteran’s willful misconduct. See 38 C.F.R. § 3.383. To determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. See 38 C.F.R. § 4.85(f). The report of a February 2011 VA examination shows the Veteran’s right ear hearing acuity was an average of 31.25 dB and that he had a speech recognition score of 92 percent. An October 2018 audiology report shows the Veteran’s acuity was an average of 28.75 decibels (dB). The Maryland CNC word test was not used to test speech recognition, however, so this hearing test cannot be used for rating purposes. See 38 C.F.R. § 4.85. The CIDW-22 word list was used, but this is not recognized as valid for VA rating purposes. At his January 2019 hearing, the Veteran testified that he believed his right ear hearing loss had worsened, and that it caused him embarrassment in the workplace, often causing people to have to re-explain things to him. In April 2019, the Veteran submitted an additional private audiology test that appears to show that his hearing acuity was an average of 73.75 dB, which is significantly worse than the October 2018 audiology report. Again, though, the Maryland CNC word list was not used – in contravention of 38 C.F.R. § 4.85. Instead, the NU-6 word list was used, and this is not a valid word list for VA rating purposes. Id. The Board remanded this claim in September 2019 to have the Veteran undergo another hearing evaluation to reassess the severity of his right ear hearing loss. The Veteran had this additional VA compensation examination in March 2020, and the report of it cites him relating difficulty hearing others talk to him, especially at work. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). His Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: March 2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 45 50 55 60 52.50 84% Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear. Entering the resulting numeric designation of Level II for the right ear and Level I for the non-service-connected left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment according to 38 C.F.R. § 4.86 was not shown. Based on this collective body of evidence, a compensable rating for the Veteran’s right ear hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including that the Veteran has trouble hearing others speak, including at work. He is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the Rating Schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Moreover, the rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact the Veteran describes is contemplated by the rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). His main complaint is reduced hearing acuity and clarity, which is precisely what is contemplated in the rating assigned. Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against this claim of entitlement to a compensable rating for the right ear hearing loss. In reaching this conclusion, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, this doctrine is inapplicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASON FOR REMAND Entitlement to service connection for vertigo is remanded. The Veteran asserts that his vertigo, also claimed as Meniere’s disease, is due to his military service – including caused or aggravated by his service-connected right ear hearing loss or other service-connected disability. In the September 2019 remand, the Board directed the Veteran undergo a VA examination to clarify his diagnosis and to address whether his claimed disability was directly related to his service or secondary to a service-connected disability. To this end, the examiner fully discussed all pieces of evidence specified in the September 2019 remand and clarified that the Veteran’s diagnosis is benign paroxysmal positional vertigo (BPPV), not Meniere’s disease. The examiner also provided an adequate opinion as to secondary service connection. However, the examiner did not provide an adequate opinion on direct service connection – specifically, the examiner merely opined that the Veteran’s vertigo did not onset during his service. The examiner did not discuss whether the Veteran’s vertigo could have been caused by any incident during service, including the hazardous noise exposure that was the basis for his award of service connection for his right ear hearing loss. In other words, service connection is permissible even if a condition was not initially diagnosed until after service (meaning even if it did not necessarily onset during the Veteran’s service), if the evidence, including that pertinent to service, establishes the condition was incurred in service. See 38 C.F.R. § 3.303(d). As such, an addendum opinion is still needed to address this possibility. Accordingly, this claim is again REMANDED for the following still additional development and consideration: Obtain an addendum opinion concerning the origins of the Veteran’s vertigo to supplement the August 2020 VA examiner’s opinion obtained following the Board’s prior remand of this claim. If, as that prior examiner concluded, the Veteran’s vertigo (BPPV) is not secondary to a service-connected disability and did not onset during his service, an opinion still is needed concerning whether this condition nonetheless is at least as likely as not directly related or attributable to the Veteran’s service, including to hazardous noise exposure during his service that was the basis for granting service connection for his right ear hearing loss.   In other words, merely because the vertigo did not necessarily onset (incept) during the Veteran’s service is not reason enough, alone, to disassociate this condition from the Veteran’s service – unless there is additional explanation of why there should be indication of this condition during his service. See 38 C.F.R. § 3.303(d). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Pak 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.