Citation Nr: 21014378 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 10-47 619 DATE: March 12, 2021 ORDER 1. Entitlement to a compensable rating for bilateral hearing loss is denied. REMANDED 2. Entitlement to service connection for a cervical spine disability is remanded. 3. Entitlement to ratings for low back intervertebral disc syndrome (IVDS) with degenerative joint disease (DJD) in excess of 20 percent prior to January 24, 2019 and in excess of 40 percent from that date, is remanded. 4. Entitlement to a total disability rating based on individual employability due to service-connected disability (TDIU) is remanded. FINDING OF FACT At no time under consideration is the Veteran’s hearing acuity shown to have been worse than Level II in either ear. CONCLUSION OF LAW A compensable rating for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, Code 6100, 4.86. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from May 1973 to July 1980. These matters are before the Board of Veterans’ Appeals (Board) on appeal from March 2010, March 2011 and October 2015 rating decisions. In March 2015, a Travel Board hearing was held before a Veterans Law Judge (VLJ) who is no longer at the Board; a transcript of the hearing is in the record. A June 2015 Board decision denied entitlement to a rating in excess of 20 percent for IVDS with DJD and remand the claim of service connection for a cervical spine disability. The Veteran appealed the June 2015 Board decision to the U.S. Court of Appeals for Veterans Claims (CAVC). In November 2016, this case was remanded [by the VLJ who conducted the March 2015 hearing] for additional development. A December 2016 CAVC Memorandum Decision vacated the Board’s decision and remanded the matter of entitlement to a rating in excess of 20 percent for IVDS with DJD for further development and readjudication. In a June 2017 submitted written statement, the Veteran confirmed that he did not wish to have another Board hearing before a VLJ. In August 2017 and September 2019, the case was remanded for further development. 1. Entitlement to a compensable rating for bilateral hearing loss is denied. In a claim for increase, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim begins one year before the claim for increase was filed. As the instant claim for increase was received on July 14, 2015, the period for consideration is from July 14, 2014, until the present. Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness. The assignment of the appropriate numeric level is based on the results of controlled speech discrimination tests in combination with average puretone threshold. The average threshold is obtained from puretone audiometry in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. Rating specialists use either Table VI or VIa of 38 C.F.R. § 4.85 to determine the correct Roman numeral designation. Table VIa is used when speech discrimination tests are inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86). One such pattern occurs when puretone thresholds at each of the four specified frequencies are 55 decibels or more. Another occurs when the puretone threshold at 1000 Hertz is 30 decibels or less and the puretone threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86. On September 2015 VA audiology assessment audiometry, puretone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 30 30 45 50 39 LEFT 25 35 35 50 36 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. Under Table VI, the Veteran had level I hearing acuity in each ear, warranting a 0 percent rating under Table VII. He reported difficulty hearing conversation. In a November 2015 statement, the Veteran’s spouse related that he often asks her to repeat what she said, sets the TV volume too loud, and has difficulty hearing her on his cell phone. On December 2016 VA audiology assessment audiometry, puretone thresholds were: HERTZ 1000 2000 3000 4000 Average RIGHT 35 40 50 50 44 LEFT 40 40 55 55 48 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 84 percent in the left ear. Under Table VI, the Veteran had level II hearing acuity in each ear, warranting a 0 percent rating under Table VII. He reported that his hearing loss interferes with his daily conversations. He related that what he hears is often not the same as what is being said, and that he is embarrassed to ask the person to repeat what was said. On January 2020 VA audiology assessment audiometry, puretone thresholds were: HERTZ 1000 2000 3000 4000 Average RIGHT 30 40 45 55 43 LEFT 30 40 45 60 44 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 86 percent in the left ear. Under Table VI, the Veteran had level II hearing acuity in the right ear and level II hearing in the left ear, warranting a 0 percent rating under Table VII. He reported that he cannot hear well if there is noise or if the person speaking is at a distance, and that, generally, he has difficulty hearing any normal conversation. The record does not include any further pertinent audiometry during the period for consideration on appeal. As the assignment of a disability rating for hearing impairment is derived by mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to be assigned. Lendenmann, 3 Vet. App. 345; 38 C.F.R. § 4.85, Code 6100. The findings on official audiometry fall squarely within the parameters of the criteria for a 0 percent rating. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The Board has no reason to question the Veteran’s reports of impairment due to his hearing loss; however, the problems understanding conversation and hearing what is said on TV he describes and the problem he has hearing on his cell phone (described by his wife) are encompassed by the criteria for the 0 percent schedular rating assigned. Therefore, those criteria are not inadequate, and referral for extraschedular consideration is not necessary. See Thun v. Peake, 22 Vet. App. 111 (2008). REASONS FOR REMAND The Board is aware that the matters of service connection for a cervical spine disability, and entitlement to ratings for low back IVDS with DJD in excess of 20 percent prior to January 24, 2019 and in excess of 40 percent from that date, and to a TDIU were remanded before (and regrets the delay inherent with another remand); but because there was not substantial compliance with previous remand instructions, another remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected low back IVDS with DJD. The Veteran asserts that his cervical spine disability is related to a lifting injury in service or is secondary to his service-connected low back IVDS with DJD. A June 2015 Board remand noted that on January 2011 VA examination, the examiner opined that the Veteran’s cervical spine disability was not related to his service-connected low back disability. The examiner explained that the cervical spine disability was [due] to the aging process. However, aggravation and the Veteran’s lifting injury in service were not addressed, and the opinion was found to be inadequate. A November 2016 Board remand noted that on October 2015 VA examination the examiner opined that it was less likely than not that the Veteran’s cervical spine disability is related to his service. The examiner explained that there was no medical evidence of a cervical spine injury in the Veteran’s service treatment records (STRs), therefore, service connection could not be established. Regarding secondary service connection, the examiner opined that it was less likely than not that a service-connected low back disability aggravated a cervical spine disability because there was no evidence of such in the Veteran’s postservice medical records. The Board found the examiner’s rationale inadequate because the examiner based her opinion solely on the fact that there is no evidence in the Veteran’s STRs of any cervical spine disability, and she did not comment on the Veteran’s report that he injured his neck lifting items in service. Regarding aggravation, the examiner’s rationale was found to be inadequate because her statement that there is no evidence of aggravation in the Veteran’s medical records is conclusory. An August 2017 Board remand noted that in a November 2016 addendum medical opinion, the provider opined that it was less likely than not that the Veteran’s current cervical spine disability is directly related to service, secondary to a service-connected lumbar spine disability, or was permanently aggravated by the service-connected lumbar spine disability. He explained that the current severity of the lumbar spine disability was noted, however, adjacency criteria for a permanent aggravation was not founded by the specifics for this case. Further, the cervical spine disability was felt to be related to the length of time that had passed since the Veteran’s service, his age, and his (post office) post service job. The Board found the opinion inadequate because the provider did not consider the Veteran’s report of injuring his neck lifting items in service (regarding direct service connection) and only a conclusory statement was provided regarding aggravation or lack thereof (regarding secondary service connection). The remand directed, in part, that the provider was to identify the likely cause for each diagnosed cervical spine disability. A September 2019 Board remand noted that the January 2019 VA examiner opined that the Veteran’s degenerative arthritis was less likely than not related to the Veteran’s service-connected IVDS and noted that the Veteran could perform sedentary work. The January 2019 VA opinion was found to be inadequate because the examiner failed to provide a rationale for his opinion regarding the claimed secondary service connection etiology, and he appeared to have provided his medical opinion on a separate page titled “Individual Unemployability Statement,” instead of the medical document where the opinion was requested. However, on close review of the record, the Board found that the January 2019 VA examiner provided multiple opinions that addressed direct service connection, secondary causation, and secondary aggravation. The examiner opined that it was less likely than not that the Veteran’s cervical spine disability was caused by a low back disability. He explained that there was insufficient evidence in the medical literature which supports arthritis in one joint causing arthritis in another part of the body. The examiner also opined that the Veteran’s cervical spine disability was less likely as not aggravated beyond its natural progression by the service-connected low back disability. He explained that there was insufficient evidence in the medical record to show a correlation between IVDS with degenerative arthritis accelerating the progression of the degenerative arthritis of the cervical spine. He indicated that although repetitive movements or events such as fractures, surgery or ligament tears could lead to degenerative arthritis in areas of the body, these processes are normally localized to the affected areas of the body under frequent or repetitive use. The examiner also noted that the medical evidence in the record is insufficient to establish a baseline level of severity of the cervical spine degenerative arthritis based upon medical evidence available prior to aggravation or the earliest medical evidence following aggravation by IVDS with DJD. Regarding direct service connection, the examiner opined that it was less likely than not that the Veteran’s cervical spine disability was related to his claimed injury in service (from heavy lifting). He explained that the injury event was acute in nature and that there was not enough evidence, such as immediate radiographic imaging or physician encounters, to support and establish a diagnosis of a chronic condition that was followed during the remainder of service or addressed shortly after service. The examiner further opined that on review of the postservice medical records, there was insufficient evidence to support a nexus between a service induced event or injury that would correlate to the Veteran’s current cervical spine disability without resort to mere speculation. Although the examiner noted the injury in service and opined that the cervical spine disability was not related to service, the opinion is inadequate because a more likely etiology for the cervical spine disability was not identified. In a December 2019 VA medical opinion, the provider stated that it was less likely than not that the Veteran’s service-connected low back disability caused his cervical spine disability. He explained that the cervical spine disability and low back disability were not medically related, and that the medical literature supported that a lumbar spine disability does not, in and of itself, cause a disability of the cervical spine. (Such opinion essentially echoes the January 2019 causation opinion). In a September 2020 opinion, the same provider opined that it was less likely than not that the Veteran’s cervical spine disability was aggravated by a low back disability. He explained that generally speaking, conditions of the lumbar spine and the cervical spine are considered separate anatomically and pathophysiologically, postural or gait accommodation due to the lower back disability would not cause degenerative disease of the cervical spine, and the natural progression of degenerative joint disease of the (cervical) spine is worsening, leading to medical or surgical intervention. The Board also notes that the provider indicated as part of the aggravation opinion that cervical spine degenerative joint disease is due to the natural aging process with chronic inflammation of the articular surfaces of the facets and that 50 percent of men over the age of 50 will have some amount of cervical spine DJD. The Board finds that this statement regarding a possible etiology for the cervical spine DJD is inadequate because it is cursory, and does not include rationale specific to the circumstances in this case. While previous providers have variously opined that the Veteran’s cervical spine disability is more likely related to duration of the interval between service and the diagnosis of a cervical spine disability, his age, and his postservice employment, none of the opinions included adequate rationale for such opinions. Therefore, remand for an adequate medical advisory opinion regarding the etiology of the Veteran’s cervical spine disability is necessary. 3. Entitlement to ratings for low back IVDS with DJD in excess of 20 percent prior to January 24, 2019 and in excess of 40 percent from that date. In its December 2016 Memorandum Decision, the CAVC held that both the December 2009 and the May 2014 VA spine examinations were inadequate for rating the Veteran’s service-connected low back IVDS with DJD. Specifically, the CAVC found that the December 2009 VA examiner did not adequately address the Veteran’s functional impairment due to flare-ups, and that the May 2014 VA examiner’s comments about the Veteran’s functional loss were “internally inconsistent.” The CAVC also directed that “in addition to obtaining a retrospective medical opinion, the Board should carefully consider whether staged ratings are appropriate.” In August 2017 the Board remanded this issue for a medical opinion to address the degree(s) of any additional range of motion loss in the Veteran’s lumbar spine due to pain during his reported flare-ups (or explain why such information cannot feasibly be provided), consistent with the CAVC’s remand. On January 2019 VA examination, the Veteran reported symptoms of increased low back pain and stiffness and forward flexion of the thoracolumbar spine was found to be 30 degrees or less. The Board found (in a September 2019 remand) that the January 2019 VA opinion was inadequate because the examiner failed to review objective evidence in the record regarding the Veteran’s flare-ups prior to opining that “there is no conceptual or empirical basis for making a determination without directly observing function under the flare up condition,” and that “there is a lack of supporting objective documentation in the file.” A March 2011 VA treatment note indicates that the Veteran had exacerbated back pain with stiffness, and trouble walking and standing. Another treatment record that same month notes that he experienced a flareup and was using a back brace. Additionally, an October 2011 treatment record described the ow back pain as “aching needlelike, sharp, . . . throbbing,” and "tight.” This was objective evidence that was not reviewed by the VA contract examiner. In a December 2019 VA opinion, it was noted that IVDS was due to degenerative disc disease (DDD), by definition, and that radiculopathy may be due to DDD or DJD. The IVDS and radiculopathies had the same symptom complexes and were essentially synonymous, except disc disease must be documented radiologically. He noted that the latest disability benefits questionnaire (DBQ) supported a diagnosis of bilateral, moderate, femoral and sciatic radiculopathy, with deep tendon reflex, muscle, sensory involvement and positive, bilateral, straight leg tests, which represented progression of all service-connected conditions due to chronic impingement and inflammation. The examiner noted that there was no available evidence in the treatment records to establish relative contributions (of the various disabilities). He indicated that a very detailed EMG and new MRI, which are outside the scope of this evaluation, could possibly give subtle evidence to form an opinion. He noted that the Veteran denied flares on the most recent DBQ and that there was marked loss of range of motion (ROM) on initial examination with no further loss at observed repetitive motion, and therefore, it was possible that previously acknowledged flares resolved or reached a steady state of severity. The examiner noted that if flares did recur, the estimated residual ROM would likely be 0-5 degrees across all planes. The Board finds that the December 2019 VA opinion is inadequate for rating purposes. The provider was directed to conduct a thorough review of the objective evidence in the record for the entire appeal period, and opine regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, for the entire appeal period. Although the provider discussed the symptomology of IVDS and the radiculopathies, the findings from the latest DBQ, and the current and possible prospective severity of the Veteran’s flare-ups, there was insufficient discussion regarding the reported flare-ups prior to January 24, 2019. As noted above, the provider noted that the Veteran denied flares on the most recent DBQ and that there was marked loss of range of motion (ROM) on initial examination with no further loss at observed repetitive motion, and that therefore, it was possible that previously acknowledged flares resolved or reached a steady state of severity. The examiner noted that if flares did recur (i.e. in the future) the estimated residual ROM would likely be 0-5 degrees across all planes. There was no discussion of the highlighted (March and October 2011 treatment records) or the previous examinations, and the opinion regarding estimated residual ROM appears to be prospective rather than retrospective. Therefore, remand is necessary to obtain an adequate (retrospective) medical advisory opinion regarding the Veteran’s flare-ups prior to January 24, 2019. 4. Entitlement to a TDIU rating. The claim of entitlement to TDIU is inextricably intertwined with the other claims being remanded (a grant of service connection for a cervical spine disability or an increased rating for low back IVDS with DJD would impact on the analysis of the TDIU claim). Therefore, consideration of the TDIU claim must be deferred. The record contains VA treatment records for the cervical spine disability only up to July 2020. As the Veteran continues to receive treatment for his cervical spine disability, including from VA and private providers, records of such treatment may contain pertinent information, and outstanding records of all such treatment must be obtained and considered. VA treatment records are constructively of record. 38 C.F.R. § 3.159 (c)(2). The matters are REMANDED for the following: 1. Ask the Veteran to identify all providers of evaluations and treatment he has received for a cervical spine disability, and to submit authorizations for VA to obtain updated (to the present) records of any private evaluations or treatment he received. Secure for the record complete clinical records of the evaluations and treatment from all providers identified (any not already associated with the record). If any non-VA records identified are not received pursuant to a VA request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private medical records are received. Specifically, secure complete updated records of all VA evaluations and treatment the Veteran has received for cervical spine disability since July 2020. 2. Return the Veteran’s record to the January 2019 VA examiner (or another appropriate clinician if that provider is unavailable) for further review and an addendum medical opinion regarding the etiology of his cervical spine disability and a retrospective opinion regarding the severity of the Veteran’s low back IVDS with DJD. On review of the record and interview [and further examination of the Veteran if such is deemed necessary for an opinion sought] of the Veteran, the consulting provider should provide opinions: (a) Identify (by diagnosis) each cervical spine disability entity found/or shown by the record during the pendency of the instant claim. (b) Identify the likely etiology for each cervical spine disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or greater probability) that the disability began in (or is otherwise etiologically related to) the Veteran’s service, to include his 1976 in-service lifting injury? (c) If a diagnosed cervical spine disability is determined to be unrelated to service, identify the etiology for the disability that is considered to be more likely and explain why that is so. (d) Furnish a retrospective opinion regarding the functional loss from the Veteran’s service-connected low back IVDS with DJD that occurred during flare-ups. Note (elicit from the Veteran a report of) the frequency and duration of the flare-ups, and provide an estimate of the extent to which the back disability limited the Veteran’s functioning during flare-ups (from October 21, 2008, to January 24, 2019, as reflected by evidence of record (to include the March and October 2011 treatment records noted above), and including his, and supporting, lay statements (commenting whether the accounts are consistent with clinically recorded data). The determination should be portrayed in terms of the degree of additional range of motion loss due to pain on use or during a flare-up. If such cannot feasibly be described, or if an estimate of the additional impairment during flare-ups cannot be provided based on the Veteran’s reports and what is shown by clinical data in the record, there must be a full explanation why that is so. (e) The addendum opinion must include a complete rationale with clear conclusions and supporting data for any opinion provided. If a requested opinion cannot be provided without resort to mere speculation, it must be so stated, with explanation why the opinion would require mere speculation. The provider should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given the current state of medical science and the known facts) or by a deficiency in the record or the examiner (additional facts are required-if so identify them, or the examiner lacks the requisite knowledge or training). Regarding flare-ups, the provider must expressly indicate whether the Veteran’s own descriptions of his functional impairment during flare-ups may be relied upon to form a conclusion, and if not, why not. 3. When the development sought above is completed, arrange for all further development necessary, and readjudicate the claim of entitlement to a TDIU rating. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, 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.