Citation Nr: 21007840 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 12-12 306 DATE: February 10, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. Entitlement to an evaluation in excess of 10 percent for left lower extremity varicose veins is denied. Entitlement to an evaluation in excess of 10 percent for right lower extremity varicose veins is denied. Entitlement to an evaluation in excess of 20 percent for a lumbar spine disability is denied. REMANDED The issue of entitlement to a separate rating for radiculopathy, as secondary to lumbar spine disability, is remanded. FINDINGS OF FACT 1. During the appeal period, the Veteran’s right ear hearing loss is not manifested by hearing acuity worse than Level III and his left ear hearing loss is not manifested by hearing acuity worse than Level II. 2. For the entire appeal period, the Veteran’s left lower extremity varicose veins were manifested with aching, and fatigue in the leg after prolonged standing or walking, with symptoms addressed by elevation of extremity or compression hosiery; there was no persistent edema nor persistent ulceration or board-like edema with consistent pain on rest. 3. For the entire appeal period, the Veteran’s right lower extremity varicose veins were manifested with aching, and fatigue in the leg after prolonged standing or walking, with symptoms addressed by elevation of extremity or compression hosiery; there was no persistent edema nor persistent ulceration or board-like edema with consistent pain on rest. 4. For the entire appeal period, the Veteran’s low back disorder was not manifested by clinical findings of limitation of motion to 30 degrees or less, nor were incapacitating episodes as prescribed by a physician noted. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85 Diagnostic Code 6100. 2. The criteria for an evaluation in excess of 10 percent for varicose veins of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7120. 3. The criteria for an evaluation in excess of 10 percent for varicose veins of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7120. 4. The criteria for a rating in excess of 20 percent for the lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1980 to April 1989 and from February 1994 to May 2005. The Board previously remanded the issue for further development in October 2017. The case has now been returned to the Board for appellate review. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. 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 active military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. 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. In both initial rating claims and normal increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The current appeal originates from a claim for increased rating filed on December 16, 2009. Thus, the Board considers evidence associated with the claims file from December 2008 to the present. 1. Bilateral hearing loss The Veteran’s bilateral hearing loss is rated non-compensable under Diagnostic Code 6100. The Veteran contends that he is entitled to a compensable rating for his bilateral hearing loss. Hearing impairment is evaluated under 38 C.F.R. § 4.85, and is determined by comparing the results of controlled speech discrimination tests with the average hearing threshold level. The hearing threshold levels are measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz (cycles per second). The Rating Schedule allows for such audiometric test results to be translated into a numeric designation, which range from Level I for essentially normal acuity to Level XI for profound deafness. Based on the level of hearing impairment, a percentage evaluation is assigned to determine the level of compensation, ranging from noncompensable to 100 percent. Disability ratings for hearing impairment are derived by the mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). At a January 2010 VA audiology examination, pure tone thresholds were as follows: for the right ear, 20 decibels (dB) at 1000 Hertz (Hz), 15 dB at 2000 Hz, 25 dB at 3000 Hz, 20 dB at 4000 Hz, with average of 20 Hz and for the left ear, 20 dB at 1000 Hz, 20 dB at 2000 Hz, 20 dB at 3000 Hz, 30 dB at 4000 Hz, with average of 23 dB. Speech audiometry revealed speech recognition ability of 88 percent for each ear. The Veteran reported difficulty hearing distant and soft speech in classroom and in noise in crowds or meetings. Applying these findings to Table VI shows a numeral of Level III for right ear and Level II for left ear. Applying those results to 38 C.F.R. § 4.85, Table VII, a noncompensable evaluation is derived. At a February 2018 VA audiology examination, pure tone thresholds were as follows: for the right ear, 25 dB at 1000 Hz, 25 dB at 2000 Hz, 45 dB at 3000 Hz, 40 dB at 4000 Hz, with average of 34 dB and for the left ear, 40 dB at 1000 Hz, 25 dB at 2000 Hz, 40 dB at 3000 Hz, 45 dB at 4000 Hz, with average of 38 dB. Speech audiometry revealed speech recognition ability of 82 percent for the right ear and 84 percent for the left ear. The Veteran reported that at work, one-on-one conversation at work was “ok” except that he could not hear in noise. In daily life, the Veteran reported difficulty in hearing when talking to people in a car, hearing his wife, or noise was present. Applying these findings to Table VI shows a numeral of Level II for each ear. Applying those results to 38 C.F.R. § 4.85, Table VII, a noncompensable evaluation is derived. As a result, the currently assigned noncompensable disability rating for the Veteran’s bilateral hearing loss is accurate and appropriately reflects this disability under the provisions of 38 C.F.R. § 4.85. The pure tone thresholds do not qualify as an exceptional pattern of hearing, as the Veteran did not have pure tone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000 and 4000 hertz or a pure tone threshold of 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 hertz. As a result, use of Table VIA is not warranted. See 38 C.F.R. § 4.86. 2. Left lower extremity varicose veins 3. Right lower extremity varicose veins The Veteran’s varicose veins in bilateral lower extremities are rated 10 percent disabling for each lower extremity under Diagnostic Code 7120. He contends that he is entitled to a rating higher than 10 percent for each lower extremity varicose veins. Varicose veins are rated under Diagnostic Code 7120. Varicose veins with intermittent edema of extremity or aching and fatigue in leg after prolonged standing or walking, with symptoms relieved by elevation of extremity or compression hosiery warrant a 10 percent disability rating. Varicose veins with persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema, warrant a 20 percent disability rating. A 40 percent disability rating is warranted for varicose veins with persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. Varicose veins with persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration warrant a 60 percent disability rating. Finally, a maximum schedular disability rating of 100 percent is warranted for varicose veins with massive board-like edema with constant pain at rest. 38 C.F.R. § 4.104, Diagnostic Code 7120. A January 2010 VA examination reflects a diagnosis of varicose veins in the lower extremities. The Veteran reported that the varicose veins, which had started while in service, became more and more prominent and extensive, now from the groin to the ankle. Since about 2002, he reported having noted some varicose veins involving the medial aspect of the right lower leg. He reported that he had worn support socks for the left leg for two years from 1998 to 2000, without any change in his veins or subjective relief, and stopped wearing the socks. He reported that mostly the varicose veins had been asymptomatic, but over the past several years, he had felt some discomfort in his left calf with prolonged standing and difficulty with sleeping at night due to aching of the legs, primarily for the left leg, for 10 to 15 minutes prior to falling asleep. He had never had any inflammation or thrombophlebitis or experienced ankle swelling of any type. The examiner found ropy prominence of the venous drainage of the left greater saphenous vein, which extended from the groin to just above the ankle. There were no notable projection of the lesser saphenous drainage posteriorly. Tourniquet testing showed competent deep venous system. There was no evidence of inflammation. None of the varicose veins were tender. There were few prominent veins on the right lower extremity, mostly on the medial aspect at the knee and just below the knee anteriorly. The impression was mildly symptomatic varicose veins of the greater saphenous system bilaterally, but primarily on the left. An August 2015 VA examination reflects a diagnosis of varicose veins. The Veteran reported mild heaviness in his legs. He had visible varicose veins in both legs. He reported having no procedures for them. He was able to perform his work as a social work associate, which involved walking several miles a day, and he was able to mow his lawn. He report having no swelling in his legs, and there had been no clots in his lower extremity veins at any time. The symptoms were constant and did not progress over the years. The examiner determined that his varicose veins in the bilateral legs were asymptomatic palpable and visible, accompanied with aching in the legs after prolonged standing and that symptoms were relieved by elevation of extremity. There was no functional impact on his ability to work. A February 2018 VA examination reflects a diagnosis of varicose veins in the bilateral lower extremities. The Veteran reported that the varicose veins were aggravated when walking and especially at night. He stated that he had had to take time off work dozens of days for the varicose veins. He used compression stockings and elevated legs to treat the condition. The examiner determined that the Veteran had asymptomatic visible varicose veins in both legs. There was no functional impact on his ability to work. The examiner observed that the reported symptoms were out of proportion to the exam findings and records. Although the examiner noted the Veteran’s subjective history that the symptoms became worse with prolonged standing and walking. the examiner did not find that the varicose veins were likely to be causing him to miss work because they were only minimally visible and had no other changes associated with varicose veins. The examiner noted that there was no evidence of brawny edema, fibrosis, or hyperpigmentation. Based on the evidence of record, the Board finds that the symptoms associated with the Veteran’s varicose veins more nearly approximate the criteria contemplated by 10 percent evaluations for each lower extremity. During the appeal period, the Veteran reported discomfort in the legs after prolonged walking or standing, aching especially at night for 10 to 15 minutes before falling into sleep, and heaviness in the legs due to varicose veins. No swelling was reported. He treated symptoms with compression stockings and elevation. Accordingly, the evidence of record shows varicose veins with aching, and fatigue in the legs after prolonged standing or walking, with symptoms addressed by elevation of extremity or compression hosiery. As such, the Board finds the Veteran’s varicose veins of the right and left lower extremities to more nearly approximate the criteria for evaluation of 10 percent each under Diagnostic Code 7121 for the entire appeal period. The Board has considered whether the Veteran is entitled to ratings in excess of 10 percent for his service-connected varicose veins of the right and left lower extremities. While the Veteran reports that the symptoms had worsened during the appeal period, the evidence does not show his varicose veins manifested in persistent edema, regardless of whether there was beginning stasis pigmentation or eczema. Moreover, there is no evidence of persistent ulceration or board-like edema with consistent pain on rest. While there may have been day-to-day fluctuations in the manifestations of the Veteran’s service-connected disabilities, the evidence shows no distinct periods of time during the appeal period, when his service-connected varicose veins of the right and left lower extremities varied to such an extent that ratings greater or less than 10 percent assigned herein would be warranted. Hart, supra. Accordingly, the Board concludes that the totality of the evidence of record demonstrates that ratings in excess of 10 percent is not warranted for service-connected varicose veins of the right and left lower extremities throughout the appeal period. 4. Lumbar spine disability The Veteran’s lumbar spine disability is currently rated 20 percent disabling under Diagnostic Code 5020-5237, pertaining to degenerative arthritis under the General Rating Formula for Diseases and Injuries to the Spine. 38 C.F.R. § 4.71a. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Under Diagnostic Code 5010, applicable to traumatic arthritis, traumatic arthritis is rated as degenerative arthritis under Diagnostic Code 5003. Diagnostic Code 5003 provides for rating on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. Disabilities rated under Diagnostic Codes 5235 to 5243, unless 5243 is evaluated Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, is rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a , Diagnostic Codes 5235, 5237. Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings apply: A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees or for muscle spasms 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 forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for ankylosis of the entire spine. Id. Note (1) instructs to evaluate any associated objective neurologic abnormalities under an appropriate diagnostic code. Note (2) provides that normal forward flexion of the thoracolumbar spine is to zero to 90 degrees. Each range of motion measurement is to be rounded to the nearest five degrees. Alternatively, degenerative disc disease may be rating under the Formula for Rating IVDS Based on Incapacitating Episodes. This formula provides for ratings based upon the frequency and duration of incapacitating episodes during a 12-month period. An “incapacitating episode” is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician. 38 C.F.R. § 4.71a , Note (1). Under this formula, ratings are assignable based on the frequency and duration of incapacitating episodes in a 12 month period: 10 percent for a total duration of at least one week but less than 2 weeks; 20 percent rating a total duration of at least 2 weeks but less than 4 weeks; 40 percent rating a total duration of at least 4 weeks but less than 6 weeks; and 60 percent for a total duration of at least 6 weeks. 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria.”). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id. , quoting 38 C.F.R. § 4.40. Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims. Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that 38 C.F.R. § 4.59 creates range of motion testing requirements with which VA must comply. 38 C.F.R. § 4.59 provides, “The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. A November 2009 VA treatment record indicates that the range of motion in the back was normal. The assessment was chronic low back pain. Yoga/tai chi and non-impact exercises were suggested to improve his joint mobility and decrease pain. A January 2010 VA examination reflects a diagnosis of chronic lumbosacral paraspinous muscle spasm secondary to degenerative instability with no physical evidence of neurologic loss from spinal nerve impingement and past history of left peroneal nerve injury with mostly recovered function. The Veteran reported that since the initial onset, he continued to have intermittent back problems and over a period of time, he was given physical therapy and recovered. However, within a month or so, he had more problems with his low back. He reported that periodically over the years, he had had acute back spasm when bending forward and twisting. The spasms had led him to seek emergency care with usually injections of pain medication. He stated that this had happened at least 12 or 14 times since the onset of his back problems, which was 1996, but the last time was a year ago. He reported that when the spasms occurred, he had virtually no or minimal range of motion, perhaps 20 degrees at most, which lasted for 3 to 4 days. It is improved by injections, but usually that did not resolve the situation. He also indicated that the pain made it difficult for him to have bowel movement. He reported having these episodes of back spasm at least once or twice per year since 1996. He had been prescribed bed rest on a number of occasions. Usually these spasms were associated with excess walking or any type of abnormal movement such as lifting or twisting, resulting in loss of range of motion to 10 to 15 degrees. This was alleviated by medications, stretching, resting, use of heating pad or ice. He reported having no problems with urinary and fecal incontinence except due to his prostate problems. Upon examination, his flexion was limited to 60 degrees, with the combined range of motion in 130 degrees. A January 2011 VA treatment record notes that the flexion of the lumbar spine was 40 degrees. In the April 2012 VA Form 9, the Veteran reported that he “did best” at the examination while ignoring pain. He reported that he could not bend in any direction without causing spasms throughout his lower back. He stated that he had taken time off from work and missed school several days due to the back pain. He reported all activities caused pain, such as standing, sitting, walking, and running. An August 2015 VA examination reflects a diagnosis of lumbar spasm and degenerative joint disease. The Veteran reported that he was able to perform his job as a social services assistant, which involved walking from building to building often and also going up and down stairs. He reported that he sometimes tripped a bit when doing the stairs, but he had not fallen down. He had regularly been doing his stretching and strengthening exercise. He had not had any procedures to the back. During a flareup, the Veteran had sudden increase in level of lumbar pain and increase in left leg weakness, lasting hours to days. He did not report any functional loss due to the back disability. The initial flexion was to 60 degrees with pain, but the pain did not result in functional loss. Tenderness of left paraspinous muscle was noted. The examiner noted that there was no further change in the range of motion during flareups and after repeated use over time. The localized tenderness did not result in anormal gait or abnormal spinal contour. The examiner noted that the Veteran had IVDS, but he did not have any episode of acute signs or symptoms due to IVDS requiring bed rest prescribed by a physician and treatment by a physician in the past 12 months. No use of assistive device was noted. The examiner determined that there was no functional impact on his ability to work due to the back disability. The examiner noted that the Veteran had pain all the time but was able to perform daily tasks at work and to mow the lawn. A February 2018 VA examination reflects a diagnosis of lumbosacral paraspinous muscle spasm with degenerative changes. The Veteran reported that the pain across the lower back was aggravated by bending and twisting and radiated to left buttock, posterior thigh to the knee. Current treatment included application of ice, Mobic, opioids, and muscle relaxants. The Veteran reported having one episode of flareup per year, during which he was off work for 4 days. During the flareup, he did not have strength in the back and needed help when standing up or bed bound. He reported that due to the back disability, he had difficulty with stairs, which he avoided, and pain during sexual activities. The initial forward flexion was limited to 60 degrees. As for functional loss during a flareup or after repeated use over time, the examiner stated any loss of range of motion loss, frequency and duration would be subjective and variable depending on the surrounding events leading to the decreased functional abilities and also on the [veteran’s] personal motivation and tolerance. Based on my medical experience, studying and training, impaired function has weak correlation to loss of range of motion and to the veterans [sic] subjective abilities - in other words, mild to moderate loss of range of motion does not reasonably correlate to loss of function or the veterans perceptions. Loss of function still may occur without loss of range of motion. Only relatively severe loss of range of motion can be reliably associated with loss of function. The examiner noted that the Veteran did not have IVDS. No use of assistive device was noted. There was no functional loss on his ability to work. There was no objective evidence of pain on non-weight bearing. Passive range of motion test was not medically appropriate. Review of the foregoing record does not provide a basis for assigning a rating in excess of the current 20 percent rating assigned. The Veteran has not been shown to have had periods of incapacitation prescribed by a doctor and there are no clinical findings of limitation of flexion to 30 degrees or less. While the Veteran has reported significant limitation during occasional severe flare-ups those limitations have not been clinically confirmed and are not shown to have lasted for any extended period. As such, they do not provide sufficient evidence to warrant an increased rating. REASONS FOR REMAND Entitlement to a separate rating for radiculopathy, as secondary to lumbar spine disability An August 2015 VA back conditions examination indicates that the Veteran has radiculopathy of bilateral sciatic nerves. A peripheral nerves condition examination was conducted with the back examination, and it was found that the right sciatic nerve was normal, but the left sciatic nerve had mild incomplete paralysis. Moreover, it was also found that the external cutaneous nerve of the right thigh had mild incomplete paralysis, but the same nerve on the left thigh was normal. In a medical opinion for a knee disability, the examiner noted that the Veteran’s back condition was associated with sciatica as manifested by pain and some numbness and paresthesias. Due to insufficient information in the examination report, it is not clear if the Veteran has radiculopathy of the right sciatic nerve or whether paralysis of the external cutaneous nerve of the right thigh is due to a service-connected disability. As such, a new examination must be scheduled, and an adequate opinion must be obtained. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine if he has radiculopathy due to a service-connected disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner must determine whether the Veteran has radiculopathy of sciatic nerves bilaterally or any other type of radiculopathy. Then, for each radiculopathy, the examiner must opine weather it is proximately due to or aggravated by service-connected disabilities, to include lumbar spine disability.   A complete rationale for any opinions expressed must be provided. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Taylor, 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.