Citation Nr: 21012613 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-06 735A DATE: March 4, 2021 ORDER The claim for service connection for a right hip condition is denied. The claim for service connection for a left hip condition is denied. The claim for service connection for a left knee condition is denied. The claim for service connection for right ear hearing loss is denied. The claim for a rating higher than 20 percent for chronic low back strain is denied. The claim for a rating higher than 10 percent for right lower extremity radiculopathy is denied. The claim for a rating higher than 20 percent for left lower extremity radiculopathy is denied. The claim for a compensable rating for left ear hearing loss is denied. FINDINGS OF FACT 1. There is not a currently diagnosed right or left hip condition, or left knee condition. 2. The Veteran’s current right ear hearing loss is not a disability for VA purposes. 3. The Veteran’s lower back disorder did not involve the following, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. There is a diagnosis of intervertebral disc syndrome (IVDS), however no indication of incapacitating episodes of the same condition. 4. The right side sciatic radiculopathy is no worse than mild, the left side is not worse than moderate level of severity. 5. Left ear hearing loss from audiological evaluation was at noncompensable levels. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hip condition are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e). 2. The criteria for service connection for a left hip condition are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e). 3. The criteria for service connection for a left knee condition are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e). 4. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. 5. The criteria for a rating higher than 20 percent for chronic low back strain are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59; 4.71a, Diagnostic Code (DC) 5242. 6. The criteria for a rating higher than 10 percent for right lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.120; 4.124a, DC 8520. 7. The criteria for a rating higher than 20 percent for left lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.120; 4.124a, DC 8520. 8. The criteria for a compensable rating for left ear hearing loss are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.85, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the Army from August 1976 to June 1977. In a June 2018 decision, the Board reopened claims for service connection for right ear hearing loss and major depressive disorder, and service connection was granted for depressive disorder. The claim for higher rating than 10 percent for tinnitus was denied, as a matter of application of law. Further, the Board’s decision remanded the instant claims on appeal for earlier effective date for the grant of service connection for right lower extremity radiculopathy, left lower extremity radiculopathy, left ear hearing loss, and tinnitus. These earlier effective date issues are not the subject of the pending appeal, may be awaiting a hearing before a Veterans Law Judge (VLJ) of the Board, and will be addressed in a future decision. Service Connection Under applicable VA law, service connection is available for current disability resulting from disease contracted or an injury sustained while on active duty service. 38 U.S.C. § §§ 1110, 1131; 38 C.F.R. § § 3.303(a). Service connection also may be granted for disease diagnosed after discharge where incurred in service. 38 C.F.R. § § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). If there was chronic disease in service, reappearance at any later date is service-connected, unless clearly due to an intercurrent cause. If not chronic, there must be continuity of symptomatology to link in-service disability to post-service condition. See 38 C.F.R. § § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (continuity of symptomatology principle limited to where involving those diseases already listed as “chronic” under 38 C.F.R. § § 3.309(a)). Whether to award service connection depends on review of all relevant evidence, medical evidence and lay statements, and the evaluation of its competency and credibility. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Right hip Left hip Left knee For purposes of the current appeal, reviewing the evidence, for four of the claimed conditions in particular there is not a diagnosed disability. Without a finding of a current disability, service connection cannot be granted in accordance with the applicable legal provisions. On VA examination in August 2019, on thorough clinical evaluation the conclusion offered by the VA examiner was as follows a “normal hip exam no diagnosis symptoms radiated from the lower back.” Similarly, there was objectively found to have been a “normal knee exam stable knee joint no diagnosis.” This too followed examination and evaluation of the relevant dimensions of evaluation for such a condition, including reported symptoms, outwardly demonstrated range of motion, demonstrated level of stability, and other relevant factors. There were no imaging studies done at the time, however, no prior history of a problem, contrary records, or symptomatology shown as the basis for such studies. There also were not VA or private outpatient findings showing to the contrary regarding the nature and extent of any recent symptomatology that might show otherwise, than that there was not qualifying disability. Under VA law, the first essential element in order to establish service connection is having competent evidence of the condition claimed. Absent current qualifying disability, service connection cannot be granted. See generally, Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (“Compensation for service-connected injury is limited to those claims which show a present disability.”); Hicks v. West, 12 Vet. App. 86, 89 (1998); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Here, that is the case, in that with no current disability proven as a necessary element of any claim for service connection, there is not the basis for recovery. For these reasons, the preponderance of the evidence is unfavorable. Under these circumstances, VA’s benefit-of-the-doubt doctrine does not apply, and the claim is denied. Right ear hearing loss. In addition to the law and regulations notated above, there are additional requirements to demonstrate a hearing loss condition that is considered to be disabling for VA purposes. Per applicable law, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels 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 finds that the claim for service connection for right ear hearing loss is being denied, because of the record has an absence of findings meeting the rating requirements for current disability. The results of the August 2019 VA examination for audiological evaluation, included an audiogram upon which pure tone thresholds, in decibels, were indicated as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 5 15 Speech audiometry revealed speech recognition ability of 98 percent in the right ear. Based on these findings, also the most updated by several years, it is clear that the requirements of section 3.385 as the definition of hearing loss disability for VA purposes has not been met. As indicated previously, without a qualifying disability service connection cannot be granted. There is not recent evidence to the contrary. While many years ago there was at least one study which found “bilateral hearing loss,” the current study appears to show hearing acuity close to at or near normal levels, that it is considered a sufficient approximation of whether there or is not the disability claimed. If at some point in the future the Veteran has better evidence of a right ear hearing loss problem, there is the opportunity to refile a claim. Accordingly, the preponderance of the evidence weighs against recovery on the claim for service connection for right ear hearing loss, and it follows that the claim is being denied. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Chronic low back strain When evaluating a musculoskeletal disability based upon range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, particularly during times when these symptoms “flare up,” such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id; see also 38 C.F.R. §§ 4.40, 4.45 and 4.59. In this regard, manifestation of pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran’s back condition is evaluated under 38 C.F.R. § 4.71a, DC 5237, for lumbosacral strain. The General Rating Formula provides for the assignment of a 20 percent rating when there is forward flexion of the thoracolumbar spine greater than 30 degrees but no 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. The next higher available 40 percent rating requires forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating may be assigned due to unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, General Rating Formula, DC 5237. The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. Id. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note (1). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. Id. at Note (5). Intervertebral Disc Syndrome (IVDS) is evaluated under the General Rating Formula for Diseases and Injuries of the Spine or otherwise based upon the frequency and severity of its incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, DC 5243. The relevant rating formula provides that: If there are incapacitating episodes having a total duration of at least 1 week but less than 2 weeks, a 10 percent rating is warranted; if at least 2 weeks but less than 4 weeks, a 20 percent rating; if at least 4 weeks but less than 6 weeks, a 40 percent rating is warranted; and where there are incapacitating episodes with a total duration of at least 6 weeks during the past 12 months, the assignment of a maximum 60 percent rating is warranted. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). The criteria for increase have not been met in this instance. The Board considers the evidence since the January 2013 claim for increased rating was filed. Since then, in order to warrant the next higher available 40 percent rating there needs to be the following, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, General Rating Formula. There was an October 2012 VA examination of the lumbar spine, the corresponding examination report not available to consider for rating purposes, being illegible, though the findings were reported again in an October 2012 RO rating decision. This is the best evidence, presumably accurate. At the time of that VA examination, range of motion testing showed forward flexion of 85 degrees, extension to 20 degrees, right and left lateral flexion to 30 degrees, right and left lateral rotation of 30 degrees; all without additional limitation due to pain on use. On VA re-examination November 2013, the diagnosis was chronic low back strain with degenerative joint disease, lumbar spine; and IVDS. There were flare-ups causing decreased mobility. Range of motion testing could not be done due to ankylosis. There was functional loss which involved less movement than normal, pain on movement, instability of station, disturbance of locomotion. The Veteran had localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine (back) further described as lumbar spinal tenderness. There was not guarding or muscle spasm of the thoracolumbar spine. Muscle strength testing showed 5/5 right lower extremity, 4/5 left lower extremity with exception of 5/5 strength at hip flexion. There was not muscle atrophy. Reflexes were knee 1+ and ankle 0. Sensory exam was normal upper anterior thigh, normal thigh/knee, decreased lower leg/ankle, decreased foot/toes. Straight leg raising was positive on both sides. Radiculopathy was present, with right lower extremity mild paresthesias and/or dysesthesias, mild numbness; left lower extremity severe constant pain, severe paresthesias and/or dysesthesias, severe numbness. There were no other signs or symptoms of radiculopathy. The sciatic nerve roots were affected on both sides. There were no other neurologic abnormalities. IVDS was present however without any incapacitating episodes. The Veteran stated he constantly needed a back brace. There was no impact upon ability to work. On examination again August 2019, the diagnosis at outset was degenerative disc disease lumbar spine. The Veteran did not indicate having flare-ups of back pain, stated there was pain with movement, though not impacting daily functioning much. He stated that there were painful muscle spasms. Range of motion testing indicated as follows, forward flexion to 70 degrees, extension to 2 degrees, right and left lateral flexion to 30 degrees, right and left lateral rotation 30 degrees. There was no evidence of pain with weight bearing. There was not objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive use testing with at least three repetitions. There was not diminished functional ability over time with repeated use due to pain, weakness, fatigability or incoordination. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. Muscle strength testing was normal throughout. The Veteran did not have muscle atrophy. Reflexes were 2+ for both lower extremities. Sensory exam was normal throughout. Straight leg raising test was negative. The Veteran did not have radicular pain or other signs or symptoms due to radiculopathy. There was not ankylosis of the spine. There were no other neurologic abnormalities. There was not present IVDS. The Veteran described regular use of a cane. X-ray studies did not show arthritis. The functional impact on ability to work was that the Veteran stated he last worked about two decades ago and said he had left because of having back pain. In view of these findings, an increased rating beyond the current 20 percent is not warranted. The main reason is the absence of either qualifying limitation of motion or joint ankylosis. First, there was clearly significant retained mobility, which clearly exceeded the VA rating standard which was forward flexion to 30 degrees, no worse based on pain, weakness, repetitive use, or other factors contemplated by the Deluca v. Brown decision. See also 38 C.F.R. §§ 4.40, 4.45. This was shown by 2019 VA examination results demonstrating forward flexion to 70 degrees, no worse due to other potentially relevant factors. Additionally, as there was retained range of motion with regard to joint functionality, that would clearly obviate the presence of joint ankylosis. An ankylosis is defined as where there is no joint mobility at all. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (indicating that ankylosis is complete immobility of the joint, a fixed position, either favorable or unfavorable). Here, while the 2013 VA examination literally reads “ankylosis”, by the time of the 2019 examination there was as indicated completely contrary findings. The longitudinal rating history is consistent with the absence of anything at or approaching joint ankylosis. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994). See also, 38 C.F.R. § 4.2. Whereas IVDS was present, that does not provide any alternative route to a higher rating, because there have not been any incapacitating episodes of the condition. There was no other ratable associated orthopedic impairment, or neurologic impairment besides that discussed below insofar as involving radiculopathy. Accordingly, the preponderance of the evidence weighs against this claim, and it is being denied. Right lower extremity radiculopathy Left lower extremity radiculopathy With regard to radiculopathy, generally, neurological disorders are ordinarily to be rated in proportion to the impairment of motor, sensory or mental function. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. A note to 38 C.F.R. § 4.124a states that the term “incomplete paralysis” where involving peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. Also, when peripheral nerve involvement is wholly sensory, the rating should be for the mild or, at most, the moderate degree. The provisions of 38 C.F.R. § 4.124a, DC 8520 pertain to impairment involving the sciatic nerve. Under that DC, a maximum 80 percent evaluation is assignable for complete paralysis to this nerve group, where the foot dangles and drops, no active movement is possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. Further evaluations may be assigned for incomplete paralysis of this nerve group, when severe in degree, with marked muscular atrophy, warranting a 60 percent rating; moderately severe, warranting a 40 percent rating; moderate, a 20 percent rating; and mild, a 10 percent rating. Based on the evidence of record, there is not an evidentiary basis shown for increase for either of the conditions at issue the radiculopathy of either the right or left lower extremities. As demonstrated by the 2013 VA examination for a back disorder, which included the section for the evaluation of neurological impairment, there was notated findings as to bilateral lower extremity radiculopathy. It was indicated that this condition was worse on the left side manifested by intermittent pain and parasthesias/dysesthesias and mild diminished muscle strength. Otherwise, on re-examination in 2019 the condition outwardly at least it was considered was not present. The VA examiner apparently stated that there was not present any radiculopathy at this time. Whether that is exactly the factually correct situation, there were not any objective findings as to the condition and there was not elsewhere any current evidence of it. There is no evidence and findings to show that the right side radiculopathy is worse than mild, the left side worse than moderate, per DC 8520. For these reasons, without any evidence of actual increase, the evidence weighs against these claims and they are being denied. Left ear hearing loss. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Hearing loss ratings are based on mechanical application of VA rating schedule to the results of audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The raw data comes from audiology reports that demonstrate average hearing threshold at the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz. These results are grouped into 11 auditory acuity levels designated from Level I for normal hearing acuity, through Level XI for profound deafness. A rating is determined based upon combination of levels of hearing loss in both ears, and speech discrimination scores. See 38 C.F.R. § 4.85, Table VI. For certain forms of severe hearing limitation, Table VIA is also available to calculate the rating, based on only puretone threshold averages and not speech discrimination scores. See 38 C.F.R. § 4.86. The findings of record for the evaluation of hearing loss are from audiological evaluations on VA examination, the first from October 2013. The audiogram indicated that pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 LEFT 30 30 40 35 Speech audiometry score was apparently listed as 0 percent in the left ear. The examination report notated that this speech discrimination score was considered “appropriate” for this Veteran. There was not a further explanation of or discussion about what was listed as a “0 percent speech” audiometry score. The next examination for audiological evaluation was in August 2019. The audiogram showed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 LEFT 30 35 35 40 Speech audiometry revealed speech recognition ability of 84 percent in the left ear. Considering the available findings there are not grounds for increased rating for left ear hearing loss. The designation for service-connected left ear hearing loss according to the VA rating criteria is at most Level II as indicated at DC 6100. This finding is based on the August 2019 VA examination report. The right ear hearing acuity has by default a Level I designation. The combination of the two designations results in a noncompensable rating per DC 6100. (Continued on the next page)   Accordingly, the current noncompensable schedular rating remains the correct level of compensation. For these reasons, the Board finds the preponderance of the evidence weighs against the claim, and it is being denied. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lyons, 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.