Citation Nr: 21022075 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 18-43 180 DATE: April 14, 2021 ORDER Entitlement to a rating in excess of 40 percent for service-connected lumbar strain myositis, central herniated nucleus pulposus at L4/L5 is denied. Entitlement to a compensable rating for service-connected right ear hearing loss is denied. REMANDED Entitlement to a rating in excess of 10 percent for service-connected right knee patellofemoral pain syndrome and osteoarthritis is remanded. Entitlement to service connection for a disability claimed as sleep and dream disturbance is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities prior to July 16, 2019, is remanded. FINDINGS OF FACT 1. At no time during the pendency of this appeal has the Veteran’s lumbar spine disability been manifested by unfavorable ankylosis or the functional equivalent thereof. 2. At worst, the Veteran has Level I hearing loss in his right ear. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for lumbar strain myositis, central herniated nucleus pulposus at L4/L5, have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.321, 4.1 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5242 (2019). 2. The criteria for a compensable evaluation for right ear hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1994 to January 1995 and from March 2005 to June 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran testified before the undersigned Veterans Law Judge via video conference. A transcript of the hearing is associated with the claims file. The Board recognizes that the transcriptionist appears to have had difficulty understanding what was said during the hearing. A copy of the transcript was sent to the Veteran in January 2020 in response to a Privacy Act request. To date, he has not requested a new hearing or to correct the transcript. The Board remanded the case for further development in May 2020. That development was completed, and the case has since been returned to the Board for appellate review. Law and Analysis The Veteran’s lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation 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. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as “a condition in which 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 neurologic symptoms due to nerve root stretching.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. [Include any other relevant Note(s).] When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for the Veteran’s spine disability. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he has constant pain and difficulty bending would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. The VA examinations show that the Veteran has been able to perform range of motion testing. There is no evidence of ankylosis, either favorable or unfavorable, in the VA treatment records or examination reports. Moreover, the March 2014, July 2016, and September 2020 VA examination reports indicate that the Veteran did not have ankylosis of the lumbar spine. The March 2014 and July 2016 VA examiners found no impact of this condition on the Veteran’s ability to work. The September 2020 VA examiner noted the Veteran’s report of being unable to bend very well and pain. He denied any flare-ups. Pain was noted on examination but did not result in functional loss. It was noted that he uses a brace occasionally for his lumbar strain. The examiner described functional impact due to his back disability as difficulty completing tasks requiring prolonged sitting, standing, and walking. While the Veteran has significant limitation of motion of the thoracolumbar spine primarily due to pain, it is not analogous to the criteria for a higher, 50 percent rating, under DC 5242. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. The February 2020 VA examination report noted that the Veteran had full muscle strength and normal reflexes. Sensory testing was normal, and the examiner stated that the Veteran did not have any signs or symptoms due to radiculopathy. The July 2016 examiner also found that the Veteran did not have any radicular pain or other signs or symptoms due to radiculopathy. Regarding the Veteran’s statements to the effect that his back disability manifested by constant pain warrants a higher rating, the Board acknowledges the Veteran’s statements but the decision must be based on the evidence before it and on VA’s Schedule for Rating Musculoskeletal Disorders. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent for a lumbar spine disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Entitlement to a compensable rating for service-connected right ear hearing loss The Veteran’s right ear hearing loss is currently assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). If impaired hearing is service-connected in only one ear, the law allows for compensation for hearing loss as if both ears were service-connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non-service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, unless the non-service-connected hearing loss is the result of the Veteran’s willful misconduct. See 38 C.F.R. § 3.383. To determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). During a March 2014 VA examination, an audiogram revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 10 10 15 10 11 LEFT 15 10 15 15 14 The Maryland CNC controlled speech discrimination test revealed speech recognition of 100 percent in both ears. These audiometric findings equate to Level I hearing loss in the right ear. See 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, a noncompensable evaluation is warranted for the Veteran’s right ear hearing loss under the provisions of 38 C.F.R. § 4.85. In addition, a September 2020 VA examination revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 10 10 15 10 11 LEFT 10 15 15 15 14 The Maryland CNC controlled speech discrimination test revealed speech recognition of 96 percent in both ears. These audiometric findings equate to Level I hearing loss in the right ear. See 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, a noncompensable evaluation is again warranted for the Veteran’s right ear hearing loss under the provisions of 38 C.F.R. § 4.85. The Board has also considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment. However, the audiological reports do not demonstrate that each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) in the right ear is 55 decibels or more or that puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in the right ear. Therefore, the provisions of 38 C.F.R. § 4.86 are not applicable. See 38 C.F.R. § 4.86(a), (b). Based on the evidence above, a compensable rating for the Veteran’s bilateral hearing loss is not warranted. The Board has considered the Veteran’s lay assertions regarding his diminished hearing. However, the assignment of disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations based on the audiology examination results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). It is clear from the Rating Schedule that a higher rating can be awarded only when loss of hearing has reached a specified measurable level. As such, an increased evaluation is not warranted. See also Doucette v. Shulkin, 28 Vet. App. 366 (2017) (the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are the effects that VA’s audiometric tests are designed to measure). For these reasons, the Board finds that the weight of the evidence is against entitlement to a compensable evaluation for right ear hearing loss. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied in this regard. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for service-connected right knee patellofemoral pain syndrome and osteoarthritis is remanded. The Board remanded this claim in May 2020 for an additional examination, noting that the Veteran now alleged knee instability which was not a symptom noted on the last examination in June 2015. The Veteran was afforded an additional VA examination in September 2020. However, additional VA treatment records were added to the claims file after the examination, including records showing a probable medial meniscus tear in the right knee and positive McMurray’s test. See September-November 2020 VA treatment records. The examiner did not have the opportunity to consider this evidence. In addition, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). Specifically, DC 5257 was amended and may be relevant to the Veteran’s claim for increase for his service-connected right knee disability. For these reasons, a new examination is warranted. Entitlement to service connection for a disability claimed as sleep and dream disturbance is remanded. This claim was remanded for an additional examination to reconcile the various diagnoses of record including diagnosis of an unspecified sleep disorder in May 2018 and diagnosis of obstructive sleep apnea (OSA) in May 2019. On remand, the examiner was instructed to consider the lay and medical evidence of record and opine whether any current sleep disorder is either caused by or aggravated by his service-connected PTSD. See May 2020 Board decision. Following remand, the Veteran was afforded an additional VA examination in September 2020. The examiner noted the diagnosis of OSA confirmed by polysomnogram in March 2019. Regarding direct service connection, the examiner opined that his OSA was less likely than not incurred in or the result of military service, explaining that he was not diagnosed until 13 years after separation from service and there was no evidence of continuity of treatment. Regarding secondary service connection, the examiner opined that his OSA was less likely than not proximately due to or the result of his service-connected PTSD, explaining that they are not medically related and OSA is a separate entity entirely from PTSD. The examiner stated that a thorough review of the medical literature fails to demonstrate a causal relationship. See September 2020 VA examination report. The examiner cited to medical literature but did not address the facts of the case or provide adequate rationale. Nor did she specifically address whether the Veteran’s obstructive sleep apnea may have been aggravated by his service-connected PTSD. Importantly, an opinion to the effect that one disability is not caused by, a result of, or secondary to another disability does not answer the question of aggravation. See 38 C.F.R. § 3.310; El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (once VA undertakes an examination, it is obligated to ensure that the examination is adequate). Furthermore, the examiner failed to specifically address the diagnosis of an unspecified sleeping disorder in May 2018 and the Veteran’s allegations that his sleep problems began during service and have continued since that time, as directed in the May 2020 Board decision. Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders). Therefore, the Board finds that an additional medical opinion is needed. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities prior to July 16, 2019, is remanded. The Veteran’s claim for TDIU is inextricably intertwined with his claim for an increased rating and for service connection. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending adjudication. The matters are REMANDED for the following action: 1. Contact the Veteran in order to have him identify the names and addresses of all health care providers who have treated him for the issues on appeal. The Veteran should also be notified that he may submit evidence or treatment records to support his claim. The Board is particularly interested any outstanding records of VA medical treatment (generated after the last treatment notes of record). The AOJ should attempt to obtain any such records. All efforts to obtain such records should be documented in the claims folder. All available records should be associated with the Veteran’s VA claims folder. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected right knee disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the right knee disability under the rating criteria. In particular, the examiner should provide the range of motion in degrees of the right and left knees. In so doing, the examiner should test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The examiner should also indicate whether there is any ankylosis; dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint; or the symptomatic removal of semilunar cartilage. He or she should also address whether the Veteran has recurrent subluxation or lateral instability, and if so, comment as to whether such symptomatology is slight, moderate, or severe. The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any sleep disorder, including sleep apnea, that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current sleep disorder, including sleep apnea, that manifested in service or that is otherwise causally or etiologically related to his military service, to include any symptomatology therein. The examiner should also opine as to whether it is at least as likely as not that the Veteran has a sleep disorder that is either caused by or aggravated by his service-connected PTSD. In rendering his or her opinion, the examiner should address both the causation and aggravation questions in his or her rationale. In other words, even if the Veteran’s PTSD did not cause his current sleep apnea, the examiner should still address whether his PTSD could have worsened his sleep apnea. In rendering his or her opinion, the examiner should consider the diagnosis of an unspecified sleep disorder rendered in May 2018 and the diagnosis of obstructive sleep apnea in May 2019. If one diagnosis is more appropriate than the other, the examiner should explain why this is so. The examiner must consider the lay and medical evidence of record, including the Veteran’s allegations regarding onset of symptoms during military service and continuing since that time. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. The AOJ should review the examination reports to ensure that they are in compliance with this remand. If the reports are deficient in any manner, the AOJ should implement corrective procedures. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.S. Chilcote, 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.