Citation Nr: 21031750 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-05 294 DATE: May 24, 2021 ORDER Entitlement to service connection for a cervical spine condition, diagnosed as cervical spine degenerative disc disease (DDD), is granted. Entitlement to an initial compensable rating for bilateral hearing loss (BHL), prior to September 8, 2020, is denied. Entitlement to a rating in excess of 80 percent for BHL, from September 8, 2020, is denied. FINDINGS OF FACT 1. The Veteran's cervical spine condition, diagnosed as cervical spine DDD, is etiologically related to active service. 2. Prior to September 8, 2020, audiometric examination corresponds to no greater than Level I hearing loss in the right ear and Level II hearing loss in the left ear. 3. From September 8, 2020, audiometric examination corresponds to no greater than Level IX hearing loss in the right ear and Level XI hearing loss in the left ear. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a cervical spine condition, diagnosed as cervical spine DDD, have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an initial compensable disability rating for BHL, prior to September 8, 2020, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.85, Diagnostic Code 6100. 3. The criteria for a rating in excess of 80 percent for BHL, from September 8, 2020, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1968 to October 1970. The Veteran appealed an August 2013 rating decision by the Agency of Original Jurisdiction (AOJ). A Board hearing was held in March 2019. A transcript is of record. In August 2019, the Board of Veterans' Appeals (Board) remanded the Veteran's BHL claim to the AOJ for further action consistent with the Board's remand directives. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The August 2019 Board decision additionally remanded the issue of service connection for erectile dysfunction (ED). An October 2020 rating decision granted service connection for ED. The Veteran has not expressed further disagreement with the October 2020 rating decision. Therefore, the issue regarding ED is no longer on appeal. The Veteran appealed the August 2019 Board decision regarding a cervical spine condition to the Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted a Joint Motion for Partial Remand (JMPR) and remanded this issue to the Board for further proceedings consistent with the JMPR. The case has returned to the Board for further appellate proceedings. The Board notes that the title page of the July 2020 rating decision purports to grant service connection for "degenerative arthritis, cervical, lumbar". However, the analysis portion of the decision did not address the cervical spine or assign a rating for it, instead focusing exclusively on the lumbar spine. Indeed, the July 2020 rating decision purported to implement the August 2019 Board decision, which granted service connection for the lumbar spine, but denied service connection for the cervical spine. Moreover, the JMPR, which was issued after the July 2020 rating decision, still addressed the service connection issue for the cervical spine as an issue remaining on appeal. Given the confusion regarding the July 2020 rating decision and the subsequent JMPR, the Board considers the service connection claim for the cervical spine still on appeal and grants the claim herein. Service Connection A veteran is entitled to the Department of Veteran Affairs (VA) disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran is diagnosed with cervical spine DDD. See March 2011 VA examination report. July 1969 service treatment records (STRs) noted back pain. The Veteran contends his cervical spine condition is due to the same in-service injuries for which his back condition is service-connected. See May 2019 Board Hearing Tr. at 8. As to nexus, the March 2011 VA examination report included a negative nexus opinion. However, the opinion did not specify or refer to the cervical spine. Therefore, the Board does not find the March 2011 VA opinion probative on the matter. The Veteran competently stated that he still has pain in his neck from his in-service injuries. See May 2019 Board Hearing Tr. at 9. The Veteran's May 2019 statement noted that he still has daily neck pain due to the in-service injuries and that since service he still suffers from that same pain today. March 2021 treatment records noted neck pain since 1968 and referenced the Veteran's in-service injuries. Overall, the Veteran entered service without any cervical spine condition. See July 1968 STRs. The Veteran experienced injuries to his back during active service. The Veteran competently stated that he has had cervical spine pain since his in-service injuries. The Board finds the Veteran's statements credible. The record does not contain an adequate negative nexus opinion regarding the Veteran's cervical spine condition. Medical evidence of record notes neck pain since the Veteran's period of active service. Medical evidence and lay statements of record indicate back complaints since active service and do not specifically isolate the lower back, but simply reference the back as a whole. The Veteran is service-connected for a low back condition. As the evidence for and the evidence against the Veteran's claim is in relative equipoise, the Board affords the Veteran the benefit of the doubt, and finds that his cervical spine condition is related to his in-service injuries. Accordingly, the Board grants service connection for a cervical spine condition, diagnosed as cervical spine DDD. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating When, as here, 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, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Tables VI, VIA, VII. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal acuity, through Level XI for profound deafness. Table VI is used to determine the Roman numeric designation, based on test results consisting of pure tone thresholds and Maryland CNC test speech discrimination scores. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. Id. Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 1. Prior to September 8, 2020 On the private audiological evaluation in February 2013, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 25 50 55 LEFT 20 15 50 65 75 The average of the pure tone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 38 in the right ear and 51 in the left ear. The speech recognition scores on the Maryland CNC word list were 100 percent for the right ear and 90 percent for the left ear. Applying the test results of the February 2013 report to Table VI of the Rating Schedule results in a Roman numeric designation of Level I in the right ear and Level II in the left ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations to Table VII, the result is a noncompensable rating for the Veteran's service-connected BHL. On the authorized audiological evaluation in August 2013, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 40 55 60 LEFT 25 15 65 65 75 The average of the pure tone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 44 decibels in the right ear and 55 decibels in the left ear. The speech recognition scores on the Maryland CNC word list were 94 percent in the right ear and 92 percent in the left ear. Applying the test results of the August 2013 VA examination report to Table VI of the Rating Schedule results in a Roman numeric designation of Level I in both ears. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations to Table VII, the result is a noncompensable rating for the Veteran's service-connected BHL. The Board finds that the above audiological evaluations are adequate for rating purposes. Apart from these two examinations, there are no other adequate audiometric testing results for the remainder of the appeal period which comply with the requirements of 38 C.F.R. § 4.85 for rating purposes. Although May 2018 VA treatment records noted worsening in the Veteran's speech recognition scores, pure tone threshold were not available. The Board is unable to properly evaluate the Veteran's BHL rating with only speech recognition scores alone. Overall, the Veteran contends he warrants a higher rating and that he has hearing aids. However, based on the adequate audiological assessments of record and mechanical application of the rating criteria, a higher rating is not warranted. Accordingly, the evidence of record does not support a compensable disability rating for BHL, prior to September 8, 2020, and the appeal is denied. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 2. From September 8, 2020 On the authorized audiological evaluation in September 2020, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 65 60 75 75 LEFT 55 60 65 80 85 The average of the pure tone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 69 decibels in the right ear and 73 decibels in the left ear. The speech recognition scores on the Maryland CNC word list were 40 percent in the right ear and 26 percent in the left ear. Applying the test results of the September 2020 VA examination report to Table VI of the Rating Schedule results in a Roman numeric designation of Level IX in the right ear and Level XI in the left ear. 38 C.F.R. § 4.85, Table VI. The Board notes the Veteran does not receive a higher Level under Table VIA for either ear. Applying the Roman numeric designations to Table VII, the result is an 80 percent rating for the Veteran's service-connected BHL. The Board finds that the above audiological evaluation ia adequate for rating purposes. Apart from the September 2020 VA examination, there are no other adequate audiometric testing results for the remainder of the appeal period which comply with the requirements of 38 C.F.R. § 4.85 for rating purposes. Overall, the Veteran contends he warrants a higher rating and that he has hearing aids. However, based on the adequate audiological assessment of record and mechanical application of the rating criteria, a higher rating is not warranted. (Continued on the next page) Accordingly, the evidence of record does not support a rating in excess of 80 percent for BHL, from September 8, 2020, and the appeal is denied. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, 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.