Citation Nr: 21026035 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-11 206A DATE: April 29, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected lumbar spine disability, is denied. Entitlement to a rating in excess of 10 percent prior to February 5, 2016, and in excess of 20 percent thereafter for peripheral neuropathy of the left lower extremity is remanded. Entitlement to a rating in excess of 60 percent for a lumbar spine disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. At worst, the Veteran has manifested Level I hearing loss in the right ear and Level I hearing loss in the left ear. 2. The Veteran’s cervical spine disability did not manifest in service or within one year thereafter, is not otherwise causally or etiologically related to his military service, and was not caused or aggravated by his service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2020). 2. A cervical spine disability was not incurred in active service, may not be presumed to have been so incurred, and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1985 to August 1989. The Board remanded these issues for further development in September 2018 and April 2020. The case has since been returned to the Board for appellate review. Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with regard to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 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). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. § § 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to an initial compensable rating for bilateral hearing loss The Veteran’s bilateral hearing loss is currently assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of pure tone audiometry tests. The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the pure tone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85 and the statement of the case) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity. For example, if the better ear had a numeric designation of Level “V” and the poorer ear had a numeric designation of Level “VII” the percentage evaluation is 30 percent. See 38 C. F. R. § 4.85. Regulations also provide that in cases of exceptional hearing loss, i.e., when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 hertz) is 55 decibels or more, 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that when the pure tone threshold is 30 decibels or less at 1,000 hertz and 70 decibels or more at 2,000, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a compensable evaluation for bilateral hearing loss. During an August 2011 VA examination, an audiogram revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 35 40 55 LEFT 25 25 35 50 55 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. These audiometric findings equate to Level I hearing loss in the right ear and Level I hearing loss in the left ear. 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, a noncompensable evaluation for the Veteran’s bilateral hearing loss is warranted 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 report does not demonstrate that each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) in either ear is 55 decibels or more or that the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear. Therefore, the provisions of 38 C.F.R. § 4.86 are not applicable. Thus, the August 2011 VA audiological evaluation has resulted in findings corresponding to a noncompensable evaluation. The Veteran was provided another VA compensation examination in February 2015. At that time, audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 10 35 55 LEFT 10 15 30 50 50 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 and Level I hearing loss in the left ear. 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, a noncompensable evaluation for the Veteran’s bilateral hearing loss is warranted 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 report does not demonstrate that each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) in either ear is 55 decibels or more or that the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear. Therefore, the provisions of 38 C.F.R. § 4.86 are not applicable. Thus, the February 2015 VA audiological evaluation has also resulted in findings corresponding to a noncompensable evaluation. The Veteran was provided another VA compensation examination in May 2016. At that time, audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 2 15 25 35 55 LEFT 25 25 40 50 45 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 and Level I hearing loss in the left ear. 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, a noncompensable evaluation for the Veteran’s bilateral hearing loss is warranted 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 report does not demonstrate that each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) in either ear is 55 decibels or more or that the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear. Therefore, the provisions of 38 C.F.R. § 4.86 are not applicable. Thus, the May 2016 VA audiological evaluation has also resulted in findings corresponding to a noncompensable evaluation. The Veteran was provided another VA compensation examination in March 2020. At that time, audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 25 40 50 LEFT 15 20 35 50 45 The Maryland CNC controlled speech discrimination test revealed speech recognition of 96 percent in the right ear and 94 percent in the left ear. These audiometric findings equate to Level I hearing loss in the right ear and Level I hearing loss in the left ear. 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, a noncompensable evaluation for the Veteran’s bilateral hearing loss is warranted 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 report does not demonstrate that each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) in either ear is 55 decibels or more or that the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear. Therefore, the provisions of 38 C.F.R. § 4.86 are not applicable. Thus, the March 2020 VA audiological evaluation has also resulted in findings corresponding to a noncompensable evaluation. Based on the foregoing, the audiological examinations do not show that the Veteran is entitled to a compensable evaluation. 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 preponderance of the evidence is against a compensable evaluation for hearing loss. Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected lumbar spine disability In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a cervical spine disability. The Veteran’s service treatment records are negative for any complaints, treatment, or diagnosis of a neck disorder or injury. In fact, an August 1989 medical examination found his neck and spine to be normal. The service treatment records do contain numerous complaints of low back pain, but there are no records pertaining to his cervical spine. Moreover, there is no objective x-ray evidence of arthritis within one year after the Veteran’s separation from service. For these reasons, the Board finds that a cervical spine disability did not manifest in service or for many years thereafter. Indeed, the Veteran reported that his neck pain did not begin until approximately 2004, many years after military service. See May 2005 private treatment record (reports low back pain for years and intermittent neck pain for about one year). He also complained of neck pain following a June 2005 motor vehicle accident and an MRI showed a disc herniation at the C3-4 level. See June/July 2005 private treatment records. He underwent an anterior cervical spine decompression and fusion at C5-6 and C6-7 in 2006. The Veteran has claimed his current neck disability is secondary to his service-connected lumbar spine disability. The Veteran was afforded a VA examination in September 2012 in connection with his claim for service connection for a cervical spine disability. The Veteran reported that he fell down the stairs during service resulting in spinal injury. The examiner opined that his cervical spine disability was less likely than not related to service or his service-connected lumbar spine disability. The examiner explained that his cervical spine fusion was performed due to cervical intervertebral disc syndrome (IVDS), which was most likely due to natural age progression. The Veteran’s cervical fusion was not due to his lumbar spine IVDS as there is no pathophysiological relationship between the two conditions. See September 2012 VA examination report. In April 2020, the Board remanded this issue for an addendum medical opinion specifically addressing whether the Veteran’s cervical spine disability was aggravated by his service-connected lumbar spine disability. An addendum VA medical opinion was obtained in September 2020. The examiner noted that the service treatment records are negative for a neck condition and there is no evidence of any neck problems until approximately 2005-2006. The Veteran underwent an initial laminectomy in 2006 and again in 2016. The examiner opined that the Veteran’s cervical spine disability, to include two separate procedures due to degenerative disc disease (DDD), is less likely than not due to his service-connected back disability. He noted that the Veteran’s primary neck condition is DDD/IVDS/radiculopathy leading to the surgeries. He explained that degenerative changes of the lumbar spine do not cause degenerative changes of the neck. This is accepted medical knowledge and practice supported by standard textbooks. DDD is caused by natural aging and desiccation of the discs, leading to compression of nerve roots or cervical stenosis. Degenerative changes of the lumbar spine do not transfer to the cervical spine or cause DDD of the cervical spine. According to the examiner, there is no physiologic or anatomic mechanism by which the lumbar spine condition would impact or cause the disease of the cervical spine. The examiner stated that his opinion is made with 99 percent confidence level and that any prior opinion to the contrary did not take into account the physiology of cervical disc disease. See September 2020 VA medical opinion. The examiner also stated that the same rationale applies to aggravation. He explained that there is no pathophysiologic mechanism by which distal lumbar spine disease can impact or aggravate the cervical spine conditions beyond the natural course. In fact, there is no evidence that the Veteran’s cervical spine disability has been aggravated beyond its natural course due to any cause. The natural course of degenerative cervical spine disease is progression over time, commonly leading to surgery. This includes the need for a second procedure. Therefore, it is less likely than not that the Veteran’s cervical spine disability has been aggravated beyond its natural course due to any cause, including the service-connected lumbar spine disability. See September 2020 VA medical opinion. See also November 2020 VA medical opinion (stating that they are two separate conditions and there is no medical evidence that disease of the low back can lead to a cervical spine condition). There is no medical opinion otherwise relating the Veteran’s current cervical spine disability to his military service or to service-connected lumbar spine disability. The Board acknowledges the Veteran’s lay statements that his current neck disorder is related to his service-connected low back disability. However, even if the Board were to assume that he is competent to opine on this matter, the Board assigns the specific opinions of the examiners greater probative weight than the more general lay assertions in this regard. The VA examiners have training, knowledge, and expertise on which they relied to form the opinions, and they considered the complete and accurate factual premise and provided rationale for the conclusions reached. Based on the foregoing, the evidence does not show that a cervical spine disability manifested in service or is otherwise related to the Veteran’s military service or to his service-connected disability. Therefore, the Board concludes that the weight of the evidence is against the claim. As such, the benefit-of-the-doubt rule does not apply, and the appeal is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to a rating in excess of 10 percent prior to February 5, 2016, and in excess of 20 percent thereafter for peripheral neuropathy of the left lower extremity is remanded. The Veteran seeks a disability rating in excess of 10 percent prior to February 5, 2016, and in excess of 20 percent thereafter for peripheral neuropathy of the left lower extremity. He asserts this disability has increased in severity, and an increased rating is thus warranted. Initially, the Board notes that the RO has proposed to reduce the evaluation of peripheral neuropathy of the left lower extremity from 20 percent to 10 percent disabling. See February 2021 rating decision; March 2021 proposal to reduce service-connected compensation. The Veteran filed a response to the proposed reduction in March 2021. In April 2020, this issue was remanded for readjudication and issuance of a supplemental statement of the case (SSOC). It was noted that new, pertinent medical evidence had been associated with the claims file since the issuance of the statement of the case (SOC) in June 2019. The AOJ issued an SSOC in December 2020 but did not include the issue of entitlement to an increased rating for peripheral neuropathy of the left lower extremity. A remand by the Board confers on the claimant, as a matter of law, a right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, another remand is required to ensure compliance with the April 2020 remand directives. Entitlement to a rating in excess of 60 percent for a lumbar spine disability is remanded. In this case, the Veteran’s service-connected lumbar spine disability is currently assigned a 60 percent evaluation pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243. Initially, the Board notes that his disability rating for a lumbar spine disability was decreased to 40 percent, effective September 1, 2016, in a June 2016 rating decision. However, in the April 2020 Board decision, the 60 percent disability rating was restored, effective September 1, 2016. The Board also notes that in a February 2021 rating decision, the RO decreased the rating assigned for the Veteran’s lumbar spine disability to 40 percent effective May 1, 2021. Apparently, this was at the request of the Veteran’s attorney in order to preserve the separate 20 percent rating for peripheral neuropathy of the bilateral lower extremities. See February 2021 rating decision; January 2021 third-party correspondence. See also December 2020 rating decision (proposing to reduce the separate evaluations for peripheral neuropathy of the lower extremities to avoid pyramiding under DC 5243). As the RO is now considering a reduction of the Veteran’s peripheral neuropathy rating, the Board will defer a decision and remand the claim for an increased rating for the lumbar spine disability as intertwined. The reduction could impact which diagnostic code is more favorable. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Moreover, the issue of entitlement to TDIU is inextricably intertwined with the issues of entitlement to increased ratings for peripheral neuropathy of the left lower extremity and a lumbar spine disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records and private records pertaining to the remanded claims and associate them with the claims file. 2. The AOJ should conduct any development as may be indicated. 3. The AOJ should readjudicate the claims based on all of the evidence of record, to include treatment records obtained since the most recent SOC/SSOC. If the benefits sought remain denied, the Veteran should be issued an SSOC. 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.