Citation Nr: 21028997 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 20-24 977 DATE: May 12, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent for a low back disability, and in excess of 40 percent on and after December 6, 2020, is denied. REMANDED Entitlement to an initial compensable evaluation for bilateral hearing loss, and in excess of 10 percent on and after November 18, 2020, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. Prior to December 6, 2020, the Veteran did not have forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; combined range of motion of the thoracolumbar spine not greater than 120 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. 2. Since December 6, 2020, the Veteran's low back disability has been manifested by limitation of motion with significant pain and functional loss, but has not had unfavorable ankylosis. CONCLUSIONS OF LAW 1. Prior to December 6, 2020, the criteria for an initial evaluation in excess of 10 percent for a low back disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 2. Since December 6, 2020, the criteria for a rating in excess of 40 percent for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4. 40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from October 1961 to August 1962. This matter comes before the Board of Veterans' Appeals (Board) from a September 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded in October 2020 for further development, including additional VA examinations. That development has been completed, and the case has since been returned to the Board for appellate review. During the pendency of the appeal, in a January 2021 rating decision, the RO increased the evaluation for the low back disability to 40 percent effective from December 6, 2020. The RO also increased the evaluation for bilateral hearing loss to 10 percent effective from November 18, 2020. Nevertheless, applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). As such, the low back and hearing loss increased rating claims have been recharacterized. Law and Analysis 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 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. 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 evaluation in excess of 10 percent for a low back disability, and in excess of 40 percent on and after December 6, 2020 In this case, the Veteran's service-connected low back disability is currently assigned a 10 percent evaluation from June 29, 2017, and a 40 percent evaluation on and after December 6, 2020, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237. The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237, for lumbosacral strain. Diagnostic Code 5237 is rated under the General Rating Formula for Diseases and Injuries of the Spine (Rating Formula). Under the Rating Formula, in pertinent part, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 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. The provisions of a 30 percent rating are specific to conditions of the cervical spine. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine measuring to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. To warrant a rating of 50 percent, there must be unfavorable ankylosis of the entire thoracolumbar spine. To warrant a rating of 100 percent, there must be unfavorable ankylosis of the entire spine. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). 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. Diagnostic Code 5237 indicates that lumbosacral strain should be evaluated under either the General Rating Formula for Diseases and Injuries to the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. For VA compensation purposes, normal range of motion for the thoracolumbar spine is 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. See 38 C.F.R. § 4.71a, General Rating Formula, Note (2) and Plate V. For the appeal period prior to December 6, 2020, entitlement to a disability rating in excess of 10 percent for a low back disability is denied. The Veteran asserts that his low back disability warrants a higher rating. At a September 2018 VA examination, the examiner noted the diagnosis of lumbar spondylosis with herniated discs. The Veteran reported low back pain and stiffness. He had to move slowly to prevent sudden acute pain. He was treating with a heating pad and aspirin as needed. At that time he did not report any flare-ups. Functional loss was described as increased pain with prolonged walking and standing. Range of motion testing revealed forward flexion to 80 degrees; extension to 20 degrees; right and left lateral flexion to 30 degrees; and right and left lateral rotation to 20 degrees. There was no additional loss of function or range of motion after three repetitions. Range of motion with repetitive use over time was described as forward flexion to 75 degrees; extension to 15 degrees; right and left lateral flexion to 25 degrees; and right and left lateral rotation to 15 degrees. There was no guarding or muscle spasm noted. Muscle strength was normal, 5/5, on both sides. There was no muscle atrophy found on examination. Reflexes were normal, 2+, bilaterally. A sensory examination was normal bilaterally. Straight leg raise testing was negative bilaterally. There was no radiculopathy noted. There was no ankylosis of the spine. The examiner did not find any other neurologic abnormalities related to the lumbar spine condition. The Veteran did not have intervertebral disc syndrome (IVDS). He did not use any assistive devices. There were no other pertinent physical findings, complications, conditions, signs or symptoms related to his low back disability. Functional impact was described as increased pain with prolonged walking and standing, and having to move slowly to prevent falling. The examiner was unable to perform passive range of motion testing as it was not medically appropriate. See September 2018 VA examination report. The Veteran also submitted a private Disability Benefits Questionnaire (DBQ) in April 2018 from his primary care physician, Dr. A.B. (initials used to protect privacy). According to Dr. A.B., the Veteran reported flare-ups and described functional impairment as intermittent mild-severe pain and sometimes immobility. However, the examiner did not perform any range of motion testing. The examiner checked the box "yes" for guarding or muscle spasm of the thoracolumbar spine; however, his gait and spinal contour were normal. The examiner noted pain on movement and that functionality varies with intensity and duration of pain. The examiner estimated range of motion during flare-ups as forward flexion to 10 degrees; extension to 0 degrees; right and left lateral flexion to 20 degrees; and right and left lateral rotation to 0 degrees. There was no functional loss not associated with limitation of motion during flare-ups. Muscle strength was not tested; however, the examiner noted that the Veteran did not have muscle atrophy. There was no ankylosis. Reflexes were not tested. Sensation to light touch testing was normal bilaterally, but the examiner indicated that the Veteran had radiculopathy, characterized as intermittent, dull pain, moderate in severity, affecting both lower extremities. The examiner also indicated moderate paresthesias and/or dysesthesias in both lower extremities. There were no objective findings due to radiculopathy not addressed in the physical exam section. The examiner indicated that the Veteran had moderate radiculopathy of the bilateral lower extremities involving both the femoral and sciatic nerves. There were no other neurologic abnormalities noted. The Veteran did not have IVDS. There were no other pertinent physical findings, complications, conditions, signs or symptoms related to the low back disability. He did not use any assistive devices. Regarding functional impact, the examiner stated that standing, lifting, bending, and quick movements induce mild to severe pain. Such pain can gradually diminish, sometimes taking days or weeks depending on severity, rest, and other aggravating factors. Activities such as prolonged standing and driving are affected. See April 2018 DBQ by Dr. A.B. The Veteran also submitted an April 2018 letter from Dr. A.B. noting his complaints of severe back pain. An MRI confirmed diffuse lumbar spondylosis with disc bulges or protrusions at all levels. Dr. A.B. stated that the Veteran's low back disability can cause mild to severe pain when performing ordinary work tasks involving movement of the lower spine. The Board finds the April 2018 DBQ to be of limited probative value because the examiner did not perform any range-of-motion testing, nor did he review the entire claims file. Dr. A.B.'s findings are inconsistent with other evidence of record, including the September 2018 VA examination. The Veteran did not report any flare-ups during the September 2018 VA examination, nor did the VA examiner find any evidence of radiculopathy. Private treatment records from February 2018 indicated that the Veteran had a normal gait and was ambulating well. The results of the September 2018 VA examination did not demonstrate that the Veteran's disability manifested in range of motion loss commensurate with that required for an increased rating to 20 percent. The Board acknowledges the Veteran's assertion that he was having a "good day" on the date of his VA examination and that the examiner did not ask him about flare-ups. See September 2019 Notice of Disagreement (NOD). Nevertheless, the examiner specifically noted that the Veteran did not report any flare-ups at that time. Even when considering Deluca factors and functional impairment after repeated use over time, the evidence simply did not show that the Veteran's disability manifested in limitation of motion for forward flexion to 30 degrees or less. The Veteran did not experience ankylosis, kyphosis, muscle spasms or guarding. See September 2018 VA examination report. A rating higher than 10 percent prior to December 6, 2020 is not warranted. The Board has considered whether a higher rating can be awarded at any time during the period under review under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the evidence of record does not show that the Veteran ever had intervertebral disc syndrome or even was prescribed bed rest by a physician for a duration that met the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board adds that radiculopathy was not found during the September 2018 VA examination and there are no separately ratable abnormal neurological symptoms, such as bowel or urinary symptoms. The evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Moreover, the General Rating Formula contemplates back pain, whether or not it radiates. In sum, the Board finds that for the time period prior to December 6, 2020, entitlement to a rating in excess of 10 percent for the Veteran's service-connected low back disability is denied. For the appeal period from December 6, 2020, entitlement to a disability rating in excess of 40 percent for a low back disability is denied. The Veteran asserts that his low back disability warrants a higher rating. Initially, the Board notes that the Veteran's disability is currently rated under Diagnostic Code 5237. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. The December 2020 VA examination noted his complaints of intermittent low back pain, 9/10 with flare-ups. He reported that the pain does not radiate and denied numbness, tingling, or burning sensation in the lower extremities. He treats the condition with Tylenol. Flare-ups were described as an increase in low back pain. He reported functional impairment described as being unable to walk for a long period of time and difficulty standing from a seated position. Range of motion testing revealed forward flexion to 30 degrees; extension to 15 degrees; right lateral flexion to 30 degrees; left lateral flexion to 15 degrees; and right and left lateral rotation to 20 degrees. There was no evidence of pain with weight bearing. There was no additional loss of function or range of motion after three repetitions. Pain would significantly limit functional ability with repeated use over a period of time, described in terms of range of motion as forward flexion to 30 degrees; extension to 15 degrees; right lateral flexion to 30 degrees; left lateral flexion to 15 degrees; and right and left lateral rotation to 20 degrees. Pain would significantly limit functional ability with flare-ups, described in terms of range of motion as forward flexion to 30 degrees; extension to 15 degrees; right lateral flexion to 30 degrees; left lateral flexion to 15 degrees; and right and left lateral rotation to 20 degrees. There was no guarding or muscle spasm of the thoracolumbar spine. Muscle strength testing was normal, 5/5, bilaterally, with no muscle atrophy. Reflexes were normal. The sensory examination was normal, bilaterally. There was no ankylosis. There were no other neurologic abnormalities or findings related to the low back disability. The Veteran did not have IVDS. He was not using any assistive devices. There were no other pertinent physical findings, complications, conditions, signs or symptoms related to the low back disability. Functional impact was described as being unable to lift heavy objects and stand or walk for long periods of time, and being unable to bend completely. There was no objective evidence of pain with non-weight bearing and passive range of motion was the same as active range of motion. See December 2020 VA examination report. In a January 2021 addendum opinion, the examiner clarified that all sensory examinations were normal and there was no diagnosis of radiculopathy. The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for the Veteran's lumbar spine disability on and after December 6, 2020, as the evidence simply does not demonstrate that the Veteran's lumbar spine is ankylosed. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain during flare-ups, and pain during repetitive use over time. Pertinently however, even during flares or after repetitive use, the Veteran was able to move his spine, albeit to a limited degree. Neither he nor his representative asserts to the contrary. As such, a higher rating than the currently assigned 40 percent under the General Rating Formula for spine disabilities is not warranted. Consideration has also been given to assigning a rating under the Formula for IVDS Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran had intervertebral disc syndrome and/or was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating during the period on appeal. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes; see also December 2020 VA Examination. Regarding neurological impairment, the lay and medical evidence of record did not establish that the Veteran had radiculopathy, or any other neurological abnormality associated with his spine disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent on after December 6, 2020, for the Veteran's lumbar spine disability. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (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 an initial compensable evaluation for bilateral hearing loss, and in excess of 10 percent on and after November 18, 2020, is remanded. The Veteran submitted a February 2018 private audiological examination report. The evaluation was conducted by Metro ENT in Mesquite, Texas, and indicated word recognition scores of 60 percent in the right ear and 90 percent in the left ear. However, the examination report does not show that the Maryland CNC test was used. Under 38 C.F.R. § 4.85(a), an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Thus, the audiological evaluation is not adequate for rating purposes. See Savage v. Shinseki, 24 Vet. App. 259, 263-64 (2011). When a private examination report is unclear or not suitable for rating purposes and the information reasonably contained in the report otherwise cannot be obtained, VA has a duty to ask the private examiner to clarify the report, or the Board must explain why such clarification was not needed. Savage v. Shinseki, 24 Vet. App. 259 (2011). Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. The Veteran was diagnosed with obstructive sleep apnea in February 2018, following a sleep study. He alleges that his sleep apnea was caused or aggravated by his service-connected tinnitus and/or low back disability. He submitted an October 2019 private medical opinion letter from Dr. A.B., his treating physician, who stated that "it is reasonable to believe that the service connected conditions of back problems and tinnitus are contributing to (if not causing) his sleep apnea." However, Dr. A.B. did not provide an adequate medical rationale in support of his opinion. Therefore, in October 2020, the Board remanded the claim for an additional VA examination and medical opinion, including consideration of Dr. A.B.'s October 2019 statement. On remand, the examiner was directed to opine on both direct and secondary causation, including whether the Veteran's sleep apnea is at least as likely as not proximately due to or aggravated beyond its natural progression by a service-connected disability, to include the service-connected low back disability and tinnitus. The examiner was also asked to consider the relevant medical history and clinical findings and reconcile any discrepancies with the October 2019 statement provided by Dr. A.B. See October 2020 Board decision. An additional VA examination was conducted in December 2020. The examiner opined that the Veteran's sleep apnea is less likely than not related to service, explaining that there is no documentation showing that his sleep apnea was incurred in or caused by service. The examiner's opinion is conclusory and unsupported by any medical rationale. Furthermore, there is no indication that the examiner considered all the relevant evidence of record, including the Veteran's wife, S.C.'s, June 2018 lay statement describing symptoms beginning soon after separation from service including snoring, choking, and interrupted breathing. See June 2018 lay statement from S.C. In addition, the December 2020 examiner opined that the Veteran's sleep apnea is less likely than not aggravated beyond its normal progression by service-connected tinnitus or his low back disability, but the opinion was not supported by adequate rationale. The examiner stated that based on the medical literature, there is no association or causation between sleep apnea and tinnitus or a back disability. The examiner did not specifically address aggravation. Moreover, the examiner stated that he reviewed Dr. A.B.'s statement but did not discuss it or reconcile any discrepancies as instructed on remand. Therefore, the Board finds that an additional medical opinion is needed. See 38 C.F.R. § 3.310; El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (a medical opinion is inadequate when it fails to adequately address the question of aggravation); 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). The matters are REMANDED for the following actions: 1. With any necessary assistance from the Veteran, contact Metro ENT and ask them to determine if the Maryland CNC word list was used during audiological testing completed in February 2018. Document all efforts made. 2. After completing the foregoing development, the AOJ should refer the Veteran's claims file to a suitably qualified VA examiner for a medical opinion as to the nature and etiology of the Veteran's sleep apnea. A physical examination is only needed if deemed necessary by the VA examiner. 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 factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The Veteran has contended that his obstructive sleep apnea is due to service, to include secondary to his service-connected tinnitus and low back disability. a) The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's obstructive sleep apnea had its clinical onset during service or is due to an event or incident of the Veteran's period of active service. b) The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's obstructive sleep apnea is either (A) caused by or (B) aggravated by his service-connected tinnitus and low back disability. In discussing aggravation, he or she should indicate whether there was any incremental increase in the Veteran's sleep apnea beyond its normal progression. In rendering the opinion, the examiner should address both the causation and aggravation questions in his or her rationale. In other words, even if the Veteran's tinnitus and/or low back disability did not cause his current sleep apnea, the examiner should still address whether his tinnitus and/or low back disability could have worsened his sleep apnea. The examiner should specifically address the October 2019 statement from Dr. A.B. regarding the relationship between sleep apnea and tinnitus and/or the back disability. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Amanda Baker Acting 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.