Citation Nr: 21025358 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-09 062 DATE: April 27, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to a disability rating in excess of 40 percent for service-connected lumbar strain with multilevel degenerative disc disease and left sacroiliitis (lumbar spine disability) is denied. REMANDED Entitlement to service connection for a skin disability is remanded. Entitlement to service connection for chronic fatigue is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a bilateral hearing loss disability for VA compensation purposes any time during or approximate to the pendency of the claim. 2. The Veteran’s lumbar spine disability is characterized by forward flexion of the thoracolumbar spine 30 degrees or less without ankylosis of the lumbar spine. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a disability rating in excess of 40 percent for service-connected lumbar strain with multilevel degenerative disc disease and left sacroiliitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1983 to April 1988 and from April 2009 to May 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2012 and September 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). These issues were previously before the Board in September 2018, at which time they were remanded for additional development. The appeal has now been returned to the Board for further appellate review. The Board finds there has been substantial compliance with the remand directives for the claims decided herein. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Entitlement to service connection for bilateral hearing loss The Veteran asserts that she has bilateral hearing loss that is etiologically related to service. The Board finds the Veteran does not have a bilateral hearing loss disability for VA compensation purposes. Therefore, her claim is denied. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the above frequencies 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. There are no audiometric findings in the Veteran’s service treatment records that meet the above requirements. The Veteran was afforded a VA hearing examination in January 2021. That evaluation showed normal hearing at frequency ranges from 500 to 4000 Hertz. As discussed above, for VA purposes, the diagnosis of hearing impairment is based upon testing at frequency ranges from 500 to 4000 Hertz. The highest decibel threshold was 25dB at 3000 Hertz in the right ear and 20dB at 4000 Hertz in the left ear. Therefore, no frequencies in the right or left ear were at 26 decibels or greater. That evaluation also included word recognition testing, which was recorded as 96 percent in the right ear and 98 percent in the left ear. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131. In the absence of proof of a current hearing loss disability, service connection for that disability cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While the Veteran is competent to state that she has difficulty hearing, as a lay person, she is not competent to diagnose a hearing loss disability for VA purposes as defined by 38 C.F.R. § 3.385. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In short, the objective medical evidence of record does not establish a current hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. In the absence of a current hearing loss disability, additional discussion concerning nexus or presumptive service connection is not required. Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. Entitlement to a disability rating in excess of 40 percent for a lumbar spine disability The Veteran’s lumbar spine disability is rated under DC 5243, and the General Rating Formula for Diseases and Injuries of the Spine has been applied. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine; a 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine; and 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. The Board notes that on February 7, 2021 a change in the rating criteria for the musculoskeletal system went into effect. However, the change in the criteria does not impact the Veteran’s evaluation because she already has a rating in excess of that possible under DCs 5003 or 5010, and DC 5243 is not applicable because she has not had any incapacitating episodes associated with IVDS in the past 12 months. The General Rating Formula for Diseases and Injuries of the Spine, which is applicable in this instance, was not changed by February 7, 2021 updates. In January 2021, the Veteran was afforded a VA back examination. The Veteran reported that she suffered flare-ups and it was noted that the she had functional impairment due to loss of mobility. It was also indicated that she was unable to pick up objects off the floor from a standing position and has difficulty doing the same from a seated position. She also needs help getting dressed and has difficulty getting up and down from a chair. The Veteran’s active range of motion was forward flexion of 50 degrees. It was determined that she had functional loss due to repeated use over time due to pain and the examiner determined that her range of motion due to such functional loss is forward flexion of 10 degrees. Therefore, the record establishes that the Veteran’s forward flexion of the thoracolumbar spine is 30 degrees or less, warranting a 40 percent rating for her lumbar disability. The examiner explained that passive range of motion was not performed because it presented increased risk for additional injury to the Veteran. The examiner found that the Veteran does not have ankylosis of the spine. In order to warrant a rating in excess of 40 percent it must be shown that the Veteran has ankylosis. However, the United States Court of Appeals for Veterans Claims (Court) recently held in the case of Chavis v. McDonough, No. 18-2928 (2021) that ankylosis of the spine may be shown based on symptoms of fixation of the joint equivalent to ankylosis. The Court explained that application of 38 C.F.R. §§ 4.40 and 4.45 may entitle a Veteran to a higher rating that would otherwise be supported by mechanical application of a DC where a disability causes additional functional loss with use or during flare-ups. See Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995). Moreover, the Court noted that ankylosis is defined as immobility of a joint – in essence, complete limitation of motion. It explained that VA does not consider ankylosis to be a diagnosis – rather, it considers ankylosis to be an objective finding like limitation of motion, muscle spasm, guarding, and tenderness. Thus, application of 38 C.F.R. §§ 4.40 and 4.45 permit consideration under the Spine Formula of a rating based on ankylosis if a Veteran’s functional loss is the functional equivalent of ankylosis. In this case, the record establishes that the Veteran’s functional impairment with flare-ups is productive of loss of mobility. Although the Veteran’s mobility with flare-ups is limited, making it difficult to pick items up off the floor or change her clothes without assistance, the motion of her lumbar spine with flare-ups is not productive of fixation of the lumbar spine, equivalent to ankylosis. As such, the Board finds that the Veteran does not have ankylosis, or equivalent symptoms of ankylosis. Therefore, a rating in excess of 40 percent is not warranted. Accordingly, the Board finds that the preponderance of the evidence is against a schedular rating in excess of 40 percent for a lumbar spine disability. Hence the appeal as to a higher rating for this disability must be denied. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b). REASONS FOR REMAND 1. Entitlement to service connection for a skin disability is remanded. The Veteran contends that she suffers from a skin disability that had its onset during active duty service. In January 2021, she was afforded a VA examination where she was diagnosed with eczema. However, the examiner’s opinion is inadequate to adjudicate the claim because it is based on the absence of a documentation of treatment for the Veteran’s reported skin problems since active service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The examiner failed to address the Veteran’s lay statements reporting intermittent skin problems since October 2009 that included symptoms of itchy rash, dry skin patches, red skin and cracked skin. Remand is needed for a more thoroughly reasoned addendum opinion that considers the Veteran’s lay statements. 2. Entitlement to service connection for chronic fatigue is remanded The Veteran generally asserts she is entitled to service connection for a disability manifested by fatigue. This matter was remanded to obtain a medical opinion addressing whether fatigue was a separate condition or whether it was a symptom of the Veteran’s service-connected adjustment disorder with anxiety and depression. In January 2021, a VA examiner opined that the Veteran developed chronic fatigue in the 1980’s due to poor sleep and the most logical cause for her fatigue is her service-connected adjustment disorder with anxiety, depression and insomnia. However, examiner provided no explanation for how he arrived at this conclusion. The only basis provided by the examiner is the lack of any other diagnosis in the Veteran’s medical records. Remand is needed for a more thoroughly reasoned opinion. The matters are REMANDED for the following action: 1. Obtain any outstanding relevant VA medical records and associate them with the claims file. 2. Obtain an addendum opinion (with examination or telehealth interview if deemed necessary by the provider) from an appropriate examiner to determine the nature and etiology of the Veteran’s diagnosed eczema. Copies of all pertinent records, including this remand, must be made available to the examiner for review. Based on the review of the record (and examination if needed), the examiner should answer whether it is at least as likely as not that the Veteran’s eczema had its onset or is otherwise related to active duty service. The examiner should consider and discuss as necessary the Veteran’s credible lay testimony reporting onset of skin symptomatology during active service, as well as service treatment records documenting in-service skin conditions. 3. Obtain an addendum opinion (with examination or telehealth interview if deemed necessary by the provider) from an appropriate examiner to determine the nature and etiology of the Veteran’s chronic fatigue. Copies of all pertinent records, including this remand, must be made available to the examiner for review. Based on the review of the record (and examination if needed), the examiner should answer the following questions: a. Does the Veteran have a chronic disability manifested by fatigue? b. Is the Veteran’s fatigue a symptom of her already service-connected disability? c. If the Veteran has a chronic disability manifested by fatigue, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it was caused by her military service. d. If the Veteran has a chronic disability manifested by fatigue, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it was caused by a service-connected disability. e. If the Veteran has a chronic disability manifested by fatigue, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it was permanently aggravated beyond the normal course of the condition by the service-connected disability. In providing answers to the above questions, the examiner should consider the Veteran’s competent lay claims regarding observable symptomatology. (Continued on the next page)   The examiner must include in the medical report the rationale for any opinion expressed. If the examiner cannot respond to an inquiry without resort to speculation, he or she should explain why this is so. J. Komperda Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Temple, 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.