Citation Nr: 21021173 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 15-09 781 DATE: April 12, 2021 ORDER Service connection for right ear hearing loss is granted. A 20 percent rating, but no higher, for cervical spine degenerative disc disease, prior to January 25, 2020, is granted. A rating higher than 20 percent for cervical spine degenerative disc disease, from January 25, 2020, is denied. REMANDED A rating higher than 10 percent for left upper extremity radiculopathy, prior to October 26, 2016, is remanded. A rating higher than 10 percent for right upper extremity radiculopathy, prior to October 26, 2016, is remanded. FINDINGS OF FACT 1. Resolving any reasonable doubt in his favor, the Veteran’s right ear hearing loss disability was etiologically related to service. 2. Prior to January 25, 2020, the Veteran’s cervical spine disability limited forward flexion to 30 degrees, and his combined range of motion of the cervical spine was 125 degrees; he did not have ankylosis of the spine, or experience incapacitating episodes of intervertebral disc syndrome totalling at least 4 weeks over a 12-month period. 3. From January 25, 2020, the Veteran’s cervical spine disability did not limit forward flexion to 15 degrees or less, or result in ankylosis of the spine; he did not experience incapacitating episodes of intervertebral disc syndrome totalling at least 4 weeks over a 12-month period. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria for a 20 percent rating, but no higher, for cervical spine degenerative disc disease, prior to January 25, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a. 3. The criteria for a rating higher than 20 percent for cervical spine degenerative disc disease, from January 25, 2020, 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. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had several periods of active duty service between August 1972 and May 2008. Upon his death in February 2020, his surviving spouse was substituted as the Appellant in this matter. In July 2019, the Board of Veterans’ Appeals (Board) remanded the issues of service connection for bilateral hearing loss, an increased rating for cervical spine degenerative disc disease, and increased ratings for radiculopathy of the bilateral upper extremities, prior to October 26, 2016, to the agency of original jurisdiction (AOJ) for additional development. The AOJ substantially complied with the Board’s remand instructions, except as discussed below. Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, the AOJ granted service connection for left ear hearing loss. See December 2020 rating decisions. That issue is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). However, the issue of service connection for right ear hearing loss remains on appeal. Service Connection for Right Ear Hearing Loss The Veteran attributed his hearing loss to acoustic trauma in service. After careful review, the Board finds that service connection for a right ear hearing loss disability is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Presumptive service connection may be established for certain chronic diseases, including sensorineural hearing loss, which manifest to a compensable degree within one year of separation from active service, provided the Veteran served continuously for 90 or more days. 38 C.F.R. §§ 3.307, 3.309. When a disease is not shown to be chronic during service or within the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1338. Hearing loss disability is defined by VA regulation. Under 38 C.F.R. § 3.385, impaired hearing will be considered a disability when the auditory (Puretone) threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. In this case, the record contains a November 2016 non-VA audiology evaluation from “Dr. M.R.” This evaluation reflects that the Veteran’s auditory threshold in the right ear was 50 dB at 4000 Hz, which satisfies the requirements of 38 C.F.R. § 3.385. The Veteran received a VA audiology examination in January 2020. While the VA examiner confirmed that he had right ear sensorineural hearing loss in the frequency range of 500-4000 Hz, the examination did not establish the presence of a hearing loss disability for VA purposes. Nevertheless, the VA examiner determined that the right ear hearing loss was at least as likely as not caused by military acoustic trauma. The examiner based this opinion on audiograms performed after August 1996, which show a “significant in-service threshold shift,” as well as the Veteran’s reported history of exposure to jet noise, mortar attacks and firearm blasts. The Board finds the opinion highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (an opinion is probative when it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data). The 2016 private evaluation establishes that a “current” right ear hearing loss disability, per 38 C.F.R. § 3.385, was present during the pendency of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). The 2020 VA opinion establishes a nexus between that disability and service. Accordingly, resolving any reasonable doubt in the Veteran’s favor, the Board finds that his right ear hearing loss disability was etiologically related to service. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection is granted. Increased Rating for Cervical Spine Degenerative Disc Disease The Veteran sought an increased rating for his service-connected cervical spine disability. On remand, the AOJ increased this rating from 10 percent to 20 percent, effective January 25, 2020. Disability evaluations are determined by the application of VA’s Schedule of Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. VA must evaluate all of the evidence so that its decisions are equitable and just. 38 C.F.R. § 4.6. Where there is a question as to which of two evaluations shall be applied, a higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in a higher evaluation. See 38 C.F.R. § 4.71a. Although VA recently amended portions of the rating schedule for musculoskeletal disabilities, these changes do not affect the rating criteria for this case. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Under the General Formula, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. For VA purposes, unfavorable ankylosis means that the entire cervical spine, 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 neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id., General Formula at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, VA must consider functional loss caused by pain or other factors that could occur during flare-ups or after repeated use which may not be reflected on range-of-motion testing. 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.45, VA must also consider 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). Under 38 C.F.R. § 4.59, painful motion associated with joint or periarticular pathology typically warrants at least the minimum compensable rating for the affected joint. Id. at 36; see also Burton v. Shinseki, 25 Vet. App. 1 (2011). The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. In this context, an “incapacitating episode” is defined as 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. Prior to January 25, 2020 The Board finds that the record supports a 20 percent rating, but no higher, for the period on appeal prior to January 25, 2020. During this period, the Veteran received two VA examinations. In April 2010, he reported daily “3/10” cervical spine pain, with flare-ups of “6/10” pain every 3-4 months, lasting 3-7 days. He was on narcotic medications for pain control, but he denied any other current treatments and the use of assistive devices. His cervical spine range of motion was from 0 to 45 degrees on flexion, 0 to 45 degrees on extension, 0 to 45 degrees on left lateral flexion, 0 to 60 degrees on left lateral rotation, 0 to 40 degrees of right lateral flexion, and 0 to 55 degrees on right lateral rotation. Thus, his combined range of motion was 290 degrees. There was objective evidence of pain on active motion. There was no evidence of ankylosis of the spine. X-rays revealed degenerative disc disease and left neural foraminal stenosis. The 2010 examiner indicated that the Veteran had not had incapacitating episodes of spinal disease. At an October 2016 examination, the Veteran reported “a lot” of neck pain, increased spondylosis, and decreased range of motion. He described flare-ups of increased pain or stiffness with weather changes and lifting weights over 5 pounds. He stated that his symptoms interfered with activities like bowling, golfing, riding a lawn mower, and sitting in a chair focused on a computer screen. He denied using any assistive devices. His range of motion was from 0 to 30 degrees on forward flexion, 0 to 15 degrees on extension, 0 to 15 degrees on right lateral flexion, 0 to 15 degrees on left lateral flexion, 0 to 20 degrees on right lateral rotation, and 0 to 15 degrees on left lateral rotation; combined range of motion was thus 125 degrees. There was no additional loss after three repetitions. The 2016 examiner was unable to say without mere speculation whether pain, weakness, fatiguability, or incoordination significantly limited functional ability with repeated use over time or during flare-ups. There was no evidence of ankylosis. Consistent with previous studies, x-rays revealed mild degenerative changes. The 2016 examiner indicated that the Veteran had IVDS of the cervical spine; however, he had not had any incapacitating episodes over the past 12 months. The Board previously found the 2016 examination inadequate because the examiner did not specify the degree at which the pain began, as required under DeLuca, 8 Vet. App. 202, and Mitchell, 25 Vet. App. at 38. The examiner also failed to ascertain adequate information about flare-ups, as required under Sharp v. Shulkin, 29 Vet. App. 26 (2017). See Remand at 18-19. Nevertheless, the 2016 examination reflects that the Veteran’s cervical spine disability limited forward flexion to 30 degrees, and his combined range of motion was 125 degrees. These findings support a 20 percent rating under the General Formula for the period prior to January 25, 2020. They are also consistent with the January 2020 examination (discussed below), which remedied the defects of the 2016 exam. The Board finds no other evidence in the record, lay or medical, that supports a rating higher than 20 percent for this period. Even considering the Veteran’s lay statements about pain and functional limitations, there is no evidence that his cervical spine disability limited forward flexion to 15 degrees or less, or resulted in ankylosis of the spine. Nor is there evidence that he experienced incapacitating episodes of IVDS totalling at least 4 weeks over a 12-month period. There is no remaining reasonable doubt to resolve in the Veteran’s favor. Gilbert, 1 Vet. App. at 53. Accordingly, a 20 percent rating, but no higher, is granted. From January 25, 2020 The Board finds that a rating higher than 20 percent, from January 25, 2020, is not warranted. The January 2020 VA examination provides the most probative evidence for this period. During the examination, the Veteran reported difficulty lifting heavy objects and turning his head. He also reported frequent flare-ups of moderate to severe neck symptoms, which were precipitated by lifting and alleviated by rest. He denied the use of any assistive devices. His cervical spine forward flexion was 0 to 30 degrees, with no additional loss after three repetitions. There was pain on examination, which caused functional loss, as well as moderate pain to the posterior neck on palpation. There was no ankylosis of the spine. X-rays showed degenerative changes with marginal osteophytosis throughout. The Veteran did not have any incapacitating episodes of IVDS during the past 12 months. The 2020 examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner indicated that pain and weakness did significantly limit functional ability with flare ups; however, the examiner estimated no additional loss in forward flexion during these flare-ups. The Board finds no other evidence in the record, lay or medical, that supports a rating higher than 20 percent under either the General Formula or the IVDS Formula. Thus, the preponderance of evidence is against finding that the Veteran’s cervical spine disability limited forward flexion to 15 degrees or less, resulted in ankylosis of the spine, or caused incapacitating episodes of IVDS totalling at least 4 weeks over a 12-month period. As such, there is no reasonable doubt to resolve in his favor. Gilbert, 1 Vet. App. at 53. A rating higher than 20 percent, from January 25, 2020, is denied. REASONS FOR REMAND Increased Ratings for Radiculopathy Prior to October 26, 2016 In its July 2019 decision, the Board granted a 20 percent rating for left upper extremity radiculopathy, and a 30 percent rating for right upper extremity radiculopathy, effective October 26, 2016. The Board then remanded for an examination and retrospective opinion on the severity of the Veteran’s radiculopathy symptoms for the period from September 21, 2009 to October 25, 2016. See Remand at 19, 22. Although the Veteran received a new examination in January 2020, the examiner did not provide a retrospective opinion as instructed. The AOJ obtained an opinion from a different examiner in December 2020. The December 2020 examiner provided the following opinion: “I find no evidence in the [Veteran’s] medical records or e-folder … of a diagnosis of bilateral lower extremity radiculopathy between September 21, 2009 to October 25, 2016.” The Board finds this conclusory opinion inadequate. See Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012) (medical opinions are adequate when they sufficiently inform the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion). Even assuming that the December 2020 examiner intended to write “upper extremity” instead of “lower extremity,” the opinion fails to acknowledge that three previous VA examiners found that the Veteran was diagnosed with cervical radiculopathy prior to October 2016. The April 2010 examination reflects that he was diagnosed with left C7 radiculopathy in August 1997; the October 2016 examiner indicated that he was diagnosed with bilateral radiculopathy in 2009 (i.e., the effective date for service connection); and the January 2020 examiner indicated that this diagnosis occurred in 1996. Although these examiners noted different diagnosis dates, it is clear that the Veteran experienced radiculopathy symptoms throughout the period on appeal. Another remand for an adequate retrospective opinion is necessary to ensure compliance with the Board’s previous instructions. Stegall, 11 Vet. App. at 271; see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes the effort to provide a VA examination or obtain an opinion, it must ensure that the examination or opinion is adequate). On remand, the examiner should carefully review the previous examinations, as well as the Veteran’s medical records and lay statements, including his 2018 hearing testimony. The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Obtain a retrospective opinion on the severity of the Veteran’s left and right upper extremity radiculopathy for the period prior to October 26, 2016. The examiner’s opinion should reflect consideration of the previous examinations of record, as well as the Veteran’s medical records and lay statements, including his 2018 hearing testimony. 2. Review the medical opinion above to ensure substantial compliance with the Board’s directives. Take any necessary corrective action. (continued on next page) 3. Readjudicate the claims. If any claim remains denied, issue a supplemental statement of the case, and allow the Appellant and her representative the opportunity to respond. Then return to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.Z. Wall, 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.