Citation Nr: 21041938
Decision Date: 07/10/21	Archive Date: 07/10/21

DOCKET NO. 14-37 631
DATE: July 10, 2021

ORDER

Entitlement to a rating in excess of 20 percent prior to September 1, 2020, and in excess of 40 percent from September 1, 2020, for degenerative joint and degenerative disc disease of the thoracolumbar spine is denied.

Entitlement to an earlier effective date of September 24, 2018 for the grant of a 20 percent increased rating for right lower extremity radiculopathy is granted, subject to the regulations governing the payment of monetary awards.

Entitlement to an earlier effective date of September 24, 2018 for an initial grant of a 20 percent rating for left lower extremity radiculopathy is granted, subject to the regulations governing the payment of monetary awards.

Entitlement to a rating in excess of 10 percent from May 16, 2013 to September 24, 2018, and in excess of 20 percent thereafter for right lower extremity radiculopathy is denied.

Entitlement to an initial rating in excess of 20 percent from September 24, 2018 for left lower extremity radiculopathy is denied. 

REMANDED

Entitlement to service connection for bilateral hearing loss is remanded.

FINDINGS OF FACT

1. Prior to September 1, 2020, the Veteran's service-connected thoracolumbar spine disability resulted in forward flexion greater than 30 degrees but not greater than 60 degrees; from September 1, 2020, the Veteran's thoracolumbar spine disability resulted in forward flexion of 30 degrees or less, with no ankylosis.

2. Prior to September 24, 2018, the Veteran's symptoms of right lower extremity radiculopathy has been manifested by mild incomplete paralysis of the sciatic nerve of an entirely sensory nature. From September 24, 2018, his right lower extremity radiculopathy has been manifested by moderate incomplete paralysis of the sciatic nerve of an entirely sensory nature.

3. From September 24, 2018, the Veteran's symptoms of the left lower extremity radiculopathy has been characterized by moderate incomplete paralysis of the sciatic nerve of an entirely sensory nature. 

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 20 percent prior to September 1, 2020 and a rating in excess of 40 percent thereafter for service-connected thoracolumbar spine disability have not been met. U.S.C 38 § 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.25, 4.40, 4.45, 4.59, 4.71 Diagnostic Code 5242.

2. The criteria for an effective date of September 24, 2018, but no earlier, for the grant of a 20 percent rating for the separate disability rating for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.155(a), 3.400.

3. The criteria for an effective date of September 24, 2018, but no earlier, for the grant of a separate disability rating for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.155(a), 3.400.

4. The criteria for entitlement to a rating in excess of 10 percent prior to September 24, 2018 and 20 percent thereafter for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520.

5. The criteria for entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served honorably in the United States Coast Guard from October 1978 to April 1980. This case comes before the Board of Veterans Appeals (Board) from a May 2012 rating decision by the Department of Veterans Affair (VA) Regional Office (RO) that denied service connection for bilateral hearing loss as well as a rating in excess of 20 percent for the Veteran's service-connected thoracolumbar spine disability. 

The Veteran testified before the undersigned Veterans Law Judge at a September 2018 hearing. A transcript of the hearing has been associated with the claims file.

In April 2019, the Board remanded this case for additional development. Following the additional development, the RO issued a rating decision in September 2020 that granted a 40 percent rating, effective September 1, 2020, for the Veteran's thoracolumbar spine disability. The RO also granted a 20 percent initial rating for radiculopathy of the left lower extremity and increased the rating for radiculopathy of the right lower extremity, previously rated 10 percent, to 20 percent. Both grants were effective as of September 1, 2020.  As these awards were considered ancillary to and inextricably intertwined with the issues on appeal, they will also be addressed herein.

1. Entitlement to a rating in excess of 20 percent prior to September 1, 2020, and a rating in excess of 40 percent thereafter for degenerative joint and disc disease of the thoracolumbar spine

Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities.

If 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. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).

The current ratings for degenerative joint and disc disease of the thoracolumbar have been assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Thoracolumbar spine disabilities are evaluated either upon application of the General Rating Formula for Diseases and Injuries of the Spine ("General Formula"), or as IVDS under the Formula for Rating IVDS Based on Incapacitating Episodes ("IVDS Formula"), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The IVDS Formula provides for ratings when there is disc herniation with compression and/or irritation of the adjacent nerve root.

The General Formula provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60; or, if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. An evaluation of 40 percent is warranted for forward flexion of the thoracolumbar spine 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 rating is proper where there is unfavorable ankylosis of the entire spine.

Under the IVDS Formula, ratings are based on evidence of incapacitating episodes, defined as periods of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician. A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

The Board notes that the Veteran does not have a diagnosis confirmed by imaging studies and has not had any physician prescribed periods of bed rest as required under the Diagnostic Code; thus, the alternate rating formula for IVDS does not apply. 

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. Additionally, 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 (199IV5); 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.").

In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint.

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

Moreover, while VA amended the criteria pertaining to rating IVDS, effective February 7, 2021, DC 5242 was only affected insofar as it was renamed degenerative disc disease other than intervertebral disc syndrome.  See 85 Fed. Reg. 76453, 7662484 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243).  As the Veteran does not have a confirmed diagnosis of IVDS, the revised musculoskeletal regulations are not for application in this case.  

The Veteran submitted a claim for an increased rating for degenerative spine disabilities in November 2010. 

The Veteran underwent a VA examination of his spine in February 2011. He presented with a diagnosis of degenerative joint disease of the lumbar spine. Range of motion testing revealed forward flexion to a full 90 degrees, with extension to 15 degrees. The Veteran complained of constant moderate to severe pain in his back. He also reported stiffness, fatigue, fatigue, weakness, and flare-ups with lifting and twisting where his pain would become severe. He acknowledged decreased motion, but denied spasms, numbness, paresthesia, or weakness. He also denied radiculopathy. He denied spasms, numbness, and incapacitating episodes over the past 12 months. No ankylosis was found. The spine had a normal curvature, with a mildly antalgic gait. There was mild tenderness of the right middle of the upper lumbar spine with evidence of guarding. The condition reportedly did not affect his activities of daily living. 

VA records from January 2012 show the Veteran reported with back pain seeking pain relief. In July 2012, it was noted he was having back pain after being tackled two days prior. VA records beginning around this time consistently noted chronic back pain. See February 2013 VA records. VA reports from April 2013 stated the Veteran had a balanced gait. A May 2013 private MRI report showed degenerative changes in the spine and began noting pain radiating through both legs with occasional numbness. In December 2013, VA records show the Veteran complained of chronic low back pain which seemed to be getting worse. There was no atrophy and his gait was non-antalgic. His spine had a normal curvature, with no tenderness on palpitation, no obvious deformities, and impressive grip strength throughout. There was low back pain, but the examiner said they would not refill hydrocodone for "obvious documented reasons." 

A July 2014 VA examiner noted they reviewed the Veteran's claims file and the February 2011 VA examination report; they acknowledged the Veteran had a spine condition but could not report further loss of range of motion due to flare-ups without resorting to mere speculation as this would require an examination of Veteran during flare-up.

The Veteran underwent a new VA examination in April 2017. The Veteran was diagnosed with degenerative arthritis of the spine and right lumbar radiculopathy. Range of motion measures found forward flexion to 60 degrees, with total range of motion of 180 degrees. Limited range of motion contributed to functional loss due to limited flexion, causing limitation in bending and turning side to side. There was no additional loss of function found with repetitive use. No guarding or muscle spasms were noted, and results were negative for ankylosis. The Veteran described functional loss as limited standing, walking and sitting for prolonged periods. He reported being unable to lift things greater than 20-25 pounds, and a limited ability to turn side to side or bend due to increased pain. There was no pain on passive range of motion testing, however the examiner was unable to test his spine. There was also no evidence of pain with weight bearing. Normal spinal strength was found across the board. The examiner stated they were unable to say without mere speculation whether pain, weakness and fatigability or incoordination would significantly limit functional ability with repeated use over time because there was insufficient medical evidence upon which to base the opinion. The examiner marked 'yes' for IVDS but found there were no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months.

At the September 2018 Board hearing, the Veteran described random back muscle spasms and near-continuous pain radiating up his spine. He reported stiffness and compressed feelings in the back which occurred primarily if he was lifting and trying to do any kind of twisting or turning with a load.

The Veteran underwent another VA examination on September 1, 2020. Forward flexion was noted to 30 degrees, with a total range of motion of 120 degrees. Flare-ups caused his back to lock up with pain to the lower back and buttocks. Functional loss was found due to an inability to walk, stand or sit for prolonged periods of time. Repetitive use caused further deterioration in his range of motion. The examination noted guarding which resulted in abnormal gait or abnormal spinal contour. The Veteran reported pain to his lower back and radiating to his bilateral lower extremities with prolonged walking, sitting and standing. He was unable to lift more than 20 pounds or perform tasks that require repetitive bending. No IVDS was noted.

Based on the foregoing, the Board finds a disability rating in excess of 20 percent is not warranted for the Veteran's thoracolumbar spine disability for the period prior to September 1, 2020. His 20 percent rating during this period is based on limitation of motion in the thoracolumbar spine resulting in forward flexion greater than 30 degrees but not greater than 60 degrees. Higher evaluations are available for ankylosis, forward flexion limited to 30 degrees or less, or the functional equivalent thereof. The evidence weighs against a finding of such manifestations. There is no indication of ankylosis at any point during this period. Forward flexion was not measured at less than 30 degrees, and the Veteran is not otherwise shown to have exhibited the functional equivalent of the criteria for a higher rating during this period. Deluca, 8 Vet. App. at 204-07. The evidence also did not show IVDS with incapacitating episodes.

The Board acknowledges the Veteran's lay reports of functional loss due to pain and limitations on his standing, walking, sitting, and lifting.  Even considering the Veteran's lay reports of symptoms and objective findings of functional loss, however, the degree of additional limitation reflected by the record would not result in limitation of motion more nearly approximating flexion limited to 30 degrees or ankylosis.

For these reasons, the Board finds that that the preponderance of the evidence is against a finding that the thoracolumbar spine disability more closely approximated the criteria for an evaluation in excess of 20 percent for the period prior to September 1, 2020. See 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a; Deluca at 206-07.

The Board also finds that a disability rating in excess of 40 percent is not warranted for the period from September 1, 2020. A higher 50 percent evaluation would be warranted for unfavorable ankylosis of the entire thoracolumbar spine; a 100 percent rating would be warranted for unfavorable ankylosis of the entire spine. However, the evidence weighs against a finding of such manifestations. There is no indication of either favorable or unfavorable ankylosis, and the Veteran is not otherwise shown to exhibit the functional equivalent of the criteria for a higher rating during this period. Deluca at 204-07.

For all these reasons, the Board finds that the Veteran does not meet or more nearly approximate the schedular rating criteria for a rating in excess of 20 percent for his thoracolumbar spine disability prior to September 1, 2020, nor a rating in excess of 40 percent thereafter, to include on the basis of additional "staged" rating(s). 38 C.F.R. §§ 4.3, 4.7.

Additionally, the Board confirms the effective date of the grant of a 40 percent rating. The effective date of an award of increased compensation is the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. §§ 5110 (b)(2) (2012); 38 C.F.R. § 3.400(o)(2) (2016); see also Hazan v. Gober, 10 Vet. App. 511 (1997).

While the Board acknowledges the Veteran's statements at the September 2018 Board hearing where he described the severity of his spine, he did not complain of ankylosis or a general worsening of the range of motion. He reported having problems of spasms and tightening in his back after heavy lifting, but when asked, he specifically stated that he had no such spasms or tightening if he avoided heavy lifting or other strenuous activity. By contrast, at the September 2020 VA examination, he reported that at that point he woke up with a 6/10 pain that progressed to 8/10 regardless of what his activities were.  He reported "having tightness in his back as the day progresses." The progression of pain, stiffness and spasms reported from the September 2018 hearing to the September 2020 VA examination indicates there was an increase in severity from the disability picture described at the hearing.

Based on the foregoing, the Board finds that an earlier effective date for a 40 percent rating for the Veteran's back condition is not warranted. The evidence does not reflect worsening such to support a higher rating at his September 2018 hearing. There was, however, an apparent worsening of his symptoms from the date of that hearing to his September 2020 examination. Thus, the date of the examination is the proper date for an increase in rating.

Finally, the Veteran's VA treatment records have been reviewed. They show that the Veteran is noted to have radiculopathy associated with his degenerative disc disease. 

Pursuant to VA regulation, once VA received a complete claim, VA will adjudicate as part of the claim entitlement to any ancillary benefits that arise as a result of the adjudication decision. The Veteran need not assert entitlement to ancillary benefits at the time the complete claim is filed. VA will also consider all lay and medical evidence of record in order to adjudicate entitlement to benefits for the claimed condition as well as entitlement to any additional benefits for complications of the claimed condition. 38 C.F.R. § 3.155(d)(2). Thus, since the Veteran's bilateral lower extremity radiculopathy is a complication of his DJD it was part and parcel to the claim.

The Veterans bilateral radiculopathy of the lower extremities is currently evaluated under Diagnostic Code 8520. Under Diagnostic Code 8520, a maximum schedular rating of 80 percent is awarded for complete paralysis of the sciatic nerve. With complete paralysis, the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. When there is incomplete paralysis, a 60 percent rating is in order for severe disability with marked muscular atrophy. Moderately severe incomplete paralysis warrants a 40 percent evaluation, and moderate incomplete paralysis warrants a 20 percent rating. Finally, mild incomplete paralysis warrants a 10 percent rating. See 38 C.F.R. § 4.124a, Diagnostic Code 8520.

For disease of the peripheral nerves, the term "incomplete paralysis" when used with peripheral nerve injuries indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a.

The words "mild," "moderate," and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6. The term "incomplete paralysis," with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to the partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a, Diagnostic Code 8510-8730.

There was no substantial evidence of lower extremity radiculopathy prior to April 4, 2017 when a VA Examination diagnosed the Veteran with radiculopathy of the right lower extremity, but not the left. See April 2017 VA Examination. The examiner at that time noted examinations from March 2006 and February 2011 were both negative for radiculopathy. They stated the Veteran had radicular symptoms on multiple occasions in the past, but these symptoms had always lessened or resolved and had not been consistently reported before. The examiner then noted the Veteran had mild constant pain, mild intermittent pain, paresthesias, and mild numbness all on the right side. No symptoms were noted on the left side.

At the September 2018 Board hearing, the Veteran noted he was presently rated at 10 percent for radiculopathy of his right lower extremity but described that his left side was now also involved. He reported cramping in his toes, which he described as a big throbbing, compression feeling. He stated that after any sort of laborious exercise, like bicycle riding, he was "no good" for a couple of days thereafter. 

Following the hearing, Board remanded the matter to determine whether there was radiculopathy secondary to his back conditions. 

A September 1, 2020 VA examination diagnosed the Veteran with bilateral radiculopathy as of that date. No constant pain of either leg was reported. However, he was found to have moderate intermitted pain, moderate paresthesias, and moderate numbness bilaterally. No other signs or symptoms of radiculopathy were noted. The examiner explained that this new diagnosis of bilateral radiculopathy of the lower extremities was caused by changes to the tissue surrounding the nerves caused by a progression of his service connected DJD. 

As for whether a greater rating is warranted for during the appeal period, the Board reiterates that the Veteran has only ever been evaluated as consistently experiencing radicular pain throughout his lower extremities, although it is acknowledged that there have been intermittent reports of other neurological symptomatology, to include numbness and tingling. However, there is nothing in the claim file to suggest that the right extremity radiculopathy was more than mild in severity from May 16, 2013 to September 24, 2018 or that the bilateral lower extremity radiculopathy was more than moderate in severity from September 24, 2018. 

Based on the September 2020 examination, the Veteran was granted an initial rating for the left side of 20 percent, and an increased rating of 20 percent for the right side. The Board finds these ratings to be most appropriate, and that a higher rating is not warranted. As previously noted, a 20 percent rating is associated with moderate incomplete paralysis. The September 2020 VA examination noted moderate symptoms of intermittent pain, paresthesias, and numbness. No constant pain was found. No moderately severe or severe symptoms were noted such to warrant a rating in excess of 20 percent. Further, no muscle atrophy or compete paralysis has been indicated or alleged by the record. As the record establishes the Veteran suffers from moderate symptoms of radiculopathy, the Board finds the current 20 percent rating is most appropriate.

The Board also finds that a rating in excess of 10 percent for the period from May 16, 2013 to September 24, 2018 is not warranted for radiculopathy of the right lower extremity. During this period, the Veteran's radiculopathy was shown to result in mild constant pain, mild intermittent pain, mild paresthesias, and mild numbness on the right side. See April 2017 VA examination. At no point during this period was it shown, or did the record reflect, any symptoms which were moderate, moderately severe, or severe. Nor was any muscle atrophy or complete paralysis found. Additionally, no pain or symptoms of radiculopathy were noted regarding the left lower extremity during this period. As such, a separate rating for left lower extremity radiculopathy is not warranted for this period.

The Board notes that the effective date of an award of increased compensation is the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. §§ 5110 (b)(2) (2012); 38 C.F.R. § 3.400 (o)(2) (2016); see also Hazan v. Gober, 10 Vet. App. 511 (1997).

The 20 percent ratings for the Veteran's bilateral radiculopathy were both granted effective September 1, 2020, the date of that VA examination. However, at the hearing before the Board, the Veteran described worsening radiculopathy which had moved to his left side as well. These reports prompted the need for the September 2020 examination to evaluate the Veteran's radiculopathy. Therefore, the Board determines that the effective date of these grants should be September 24, 2018, the date of the hearing, because this is the date it became factually ascertainable that an increase in disability had occurred. 

Accordingly, the Board finds that an earlier effective date of September 24, 2018 is warranted for the grants of 20 percent bilaterally for the Veteran's radiculopathy of the lower extremity.

REASONS FOR REMAND

1. Entitlement to service connection for bilateral hearing loss is remanded.

Although the Board sincerely regrets the additional delay, further development is necessary to ensure there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.

The Veteran asserts he has bilateral hearing loss disability related to noise exposure from field artillery during military service. Of note, service treatment records are silent for any complaints or diagnosis of hearing loss. Instead, hearing within normal limits was noted at entrance and separation.

A February 2004 VA treatment notes that on neurological biophysical assessment, the Veteran was not noted to have any hearing impairment. A January 2011 VA examination did not show a current hearing loss disability for VA purposes as defined by 38 C.F.R. § 3.385. A September 2012 examination found hearing loss for VA purposes in the left ear, but not the right ear. The examiner opined any hearing loss was less likely than not related to in-service noise exposure. However, in November 2018, the Veteran submitted a November 2018 private audiological evaluation (that used the Maryland CNC test) in support of his claim. That private examiner diagnosed moderate sensorineural hearing loss in both ears and opined that, based on the Veteran's case history, it was at least as likely as not that this moderate hearing loss was caused by noise exposure while in Coast Guard. Specifically, the private examiner noted the Veteran had a long history of noise exposure that started with his military service and continued postservice as a truck driver and construction worker. The private examiner also noted the Veteran's report that he had difficulty hearing ever since an incident in service where he had to go into an engine room to cut off fuel. 

In September 2020, the Veteran was afforded a new VA examination. However, this examination was inconclusive as to any audiometric readings because the examiner reported they could not perform the test. It was noted the Veteran's response reliability was deemed poor, as the Veteran could have a conversation at a normal level with little to no issue but could not repeat words once testing began. Due to the inconsistencies of the Veteran's responses and the lack of evidence to show noise exposure, the examiner stated they could not provide an accurate opinion regarding the etiology and type of hearing loss that the Veteran might or might not have without resorting to speculation.

Although the September 2020 VA examination did not result in a diagnosis of bilateral hearing loss, the Veteran is shown to have had bilateral hearing loss pursuant to 38 C.F.R. § 3.385 during the appeal period. See November 2018 private audiological evaluation. Accordingly, the Board requests that a VA examiner review the claims file to reconcile the conflicting medical opinions of record. In particular, the Veteran has reported a history of in-service noise exposure from working around large engines on boats and post-service noise exposure as a truck driver and construction worker. He also has a history of a head injury in 1988. See December 2020 VA examination and November 2018 private treatment record. Additionally, the record reflects the Veteran reported to the private examiner that he had hearing difficulty since service; however, hearing impairment was not noted during a February 2004 VA neurological biophysical assessment and at the December 2020 VA examination, the Veteran reported that he noted hearing difficulty in 1994. In light of this information, the examiner should provide an opinion that considers the Veteran's inservice and post-service noise exposure, medical history, and contentions regarding his hearing loss.

The matter is REMANDED for the following action:

(Continued on the next page)

 

Arrange for an appropriate VA examiner to review the claims file (including this remand) and provide an opinion as to whether the Veteran's bilateral hearing loss is at least as likely as not (50 percent probability or greater) caused by or the result of his military service, to include his noise exposure therein. The examiner should note the Veteran's medical history, to include his in-service noise exposure, postservice noise exposure, and reported onset dates of hearing difficulty; the VA and private hearing tests showing current hearing loss; the medical opinions already of record; and the contentions made by the Veteran regarding hearing difficulty following an in-service engine room incident.

 

 

A. ISHIZAWAR

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Stuedemann, Angela L.

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.