Citation Nr: 22065327 Decision Date: 11/22/22 Archive Date: 11/22/22 DOCKET NO. 17-27 104 DATE: November 22, 2022 ORDER Entitlement to an initial rating of 20 percent (but no higher) for lumbar degenerative disc disease is granted, subject to the regulations governing the payment of monetary awards. Entitlement to a rating of 40 percent (but no higher) for lumbar degenerative disc disease from November 30, 2021, is granted, subject to the regulations governing the payment of monetary awards. Entitlement to service connection for hearing loss of the left ear is granted. Entitlement to service connection for hearing loss of the right ear is denied. FINDINGS OF FACT 1. From the grant of service connection to November 30, 2021, the Veteran's lumbar degenerative disc disease was manifested by an abnormal gait or abnormal spinal contour and forward flexion limited to 35 degrees. 2. From November 30, 2021, the Veteran's lumbar degenerative disc disease has been manifested by forward flexion limited to 20 degrees at its most severe, with no additional factors of disability. 3. The evidence is at least in equipoise that the Veteran's left ear hearing loss was caused by exposure to hazardous noise during active-duty service. 4. The Veteran's right ear does not have hearing impairment which meets the definition of hearing loss under VA regulations. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 20 percent (but no higher) for lumbar degenerative disc disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5237. 2. The criteria for a rating of 40 percent (but no higher) for lumbar degenerative disc disease from November 30, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5237. 3. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 4. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1967 to October 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2022, the Board remanded the Veteran's appeal to the RO for further evidentiary development. Pursuant to the Board's remand, the RO obtained new examinations and medical opinions which addressed secondary service connection for the bilateral hearing loss and addressed active, passive, weight-bearing and non-weight-bearing movement of the Veteran's back. Therefore, the RO substantially complied with the Board's remand instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). In November 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to a higher initial rating for lumbar degenerative disc disease The Veteran appeals the assignment of an initial rating of 10 percent for lumbar degenerative disc disease. Service connection with the 10 percent rating was granted in an October 2015 rating decision, effective July 10, 2015. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where functional loss is alleged due to pain upon motion, the provisions of 38C.F.R. §4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Also, the United States Court of Appeals for Veterans Claims (Court) has held that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of" 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). 38 C.F.R. § 4.59 states that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." As such, pursuant to Correia, an adequate VA joints examination must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions. Furthermore, pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. Lumbar spine disabilities are rated using the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Rating Formula). 38 C.F.R. § 4.71a, DC 5237. The General Rating Formula provides that 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 an 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 in cases of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the 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. A 40 percent disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Under the IVDS Rating Formula, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; 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; and 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. 38 C.F.R. § 4.71A. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Turning to the evidence, a May 2015 MRI of the lumbar spine by a private doctor showed normal height and alignment with no fracture or subluxation seen, but with mild to moderate degenerative changes with osteophyte formation. Intervertebral discs showed diffuse degeneration with desiccation and loss of height seen diffusely. There was mild spinal canal stenosis at L2-L3, and moderate spinal canal stenosis at L3-L4. The radiologist's impression was of multilevel posterior degenerative disc osteophyte complexes causing spinal canal stenoses and neural foraminal narrowing. An August 2015 VA rehab consult for back pain showed that the Veteran reported episodes of pain when he feels tightness in his back followed by sharp pain in the lower back. The episodes lasted for a few days to a few weeks and the most recent one lasted 8 weeks. The Veteran said that between episodes he had some pain but it did not interfere with his routine work. In October 2015, a VA physician found that the Veteran had thoracic kyphosis and mild thoracic scoliosis. The doctor stated that the Veteran's forward flexion was 30% of normal, his extension 20%, rotation 30%, and side bend 30%, with pain on all movements. The doctor opined that there was "slight progression of degenerative changes in the distal lumbar spine with straightening of lumbar lordosis." A January 2017 letter from the Veteran's private doctor stated that during severe episodes, the Veteran suffers from sharp pain in his lower back, aching pain in his legs causing loss of strength and fatigue, and difficulty walking, and he is unable to stand or sit for long periods of time. A private MRI of the lumbar spine in March 2017 showed borderline central stenosis of L3-L4 and L4-L5, and right lateral recess stenosis without central stenosis L5-S1. The examiner found levoscoliosis of the lumbar spine with associated degenerative changes. VA completed a Disability Benefits Questionnaire for Back Conditions in September 2017. The examiner diagnosed degenerative arthritis of the spine. The Veteran reported intermittent flare ups 4-5 times a year and lasting 2 weeks to 2 months. The Veteran said that he can barely move during the flare ups. Initial range of motion testing (ROM) showed forward flexion of 0 to 35 degrees, extension of 0 to 10 degrees, right and left lateral flexion each 0 to 15 degrees, and right and left lateral rotation each 0 to 25 degrees (for a combined range of motion of 125 degrees). The examiner opined that the limitation contributes to functional loss in bending and lifting. There was pain on forward flexion and extension only; there was no pain on weight-bearing, and there was localized tenderness to the bilateral lumbar paraspinals and also the midline lumber spine. The Veteran was unable to complete three repetitions due to pain. The examination did not take place during a flare up or after repeated use over time. The Veteran had muscle spasm resulting in an abnormal gait or abnormal spinal contour (but not guarding). His muscle strength and reflexes were normal, and his sensation to light touch normal except it was decreased in the right lower leg. The examiner found no radicular pain or any other signs or symptoms due to radiculopathy. At his hearing before the Board in November 2021, the Veteran testified that he receives private treatment from a Dr. U. for his back on a quarterly basis. He said that he received a quarterly treatment 3-4 weeks before the hearing. He reported daily back spasms and said that he has episodes with his back which leave him unable to move and he must put heat and cold on his back and take muscle relaxers. The Veteran testified that these episodes occur roughly six times a year, and that during an episode he cannot go anywhere and there are also issues of intimacy. The Veteran also reported problems balancing when he walks. A March 2022 DBQ for the back diagnosed degenerative disc disease, IVDS, spinal stenosis, and radiculopathy of the bilateral lower extremities. Initial ROM testing showed forward flexion to 30 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees each, and right and left lateral rotation to 20 degrees each (for a combined ROM of 100 degrees). There was pain on all movements. Passive ROM was the same. There was pain on weight-bearing, active, passive, but not nonweight-bearing motion or when resting. The examiner wrote that the Veteran is impaired as follows: "CHORES: severe SHOPPING: Severe EXERCISE: Prevents SPORTS: Prevents RECREATION: Prevents TRAVELING: Moderate FEEDING: None BATHING: Mild DRESSING: Mild TOILETING: Mild GROOMING: Mild DRIVING: Mild." There was no objective evidence of crepitus. After three repetitions, forward flexion was limited to 25 degrees, extension to 5, right and left lateral flexion to 10 each, and right and left lateral rotation to 15 degrees each (combined ROM of 80 degrees). The Veteran reported that flare ups result in forward flexion limited to 20 degrees, extension to 5 degrees, right and left lateral flexion to 5 degrees each, and right and left lateral rotation to 10 degrees each (for a combined ROM of 55 degrees). There was no localized tenderness or additional factors contributing to disability. Muscle strength was normal in all respects, reflexes were normal bilaterally, and sensation to touch was normal in the bilateral thighs, knees, ankles and feet. The straight leg raising test was negative bilaterally. The Veteran had mild intermittent pain in both lower extremities but no other signs of radiculopathy. The Veteran reported weakness in his thighs although testing showed normal muscle strength and there were no other neurological abnormalities. The Veteran had IVDS of the thoracolumbar spine but had 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 previous 12 months. The Veteran used a back brace regularly. A February 2022 MRI showed "multilevel spondylotic disease with superimposed disc disease causing multilevel spinal canal and neural foraminal stenosis." Prior To November 30, 2021 Applying the rating criteria, the Veteran warrants a 20 percent initial rating because, although the September 2017 DBQ showed a combined range of motion of 125 degrees (which would warrant a 10 percent rating), he also had a muscle spasm resulting in an abnormal gait or abnormal spinal contour (which warrants a 20 percent rating) and forward flexion of 35 degrees (which also calls for a 20 percent rating). 38 C.F.R. § 4.71A. The private treatment records show scoliosis and kyphosis were present as early as October 2015; therefore, a 20 percent rating is warranted from the initial grant of service connection. However, the Veteran does not warrant an initial rating higher than 20 percent. During this period, the Veteran's range of forward flexion was not 30 degrees or less and there was no ankylosis of the thoracolumbar spine. 38 C.F.R. § 4.71A. The Board has also considered the additional factors of disability as required by DeLuca, supra. The September 2017 examiner stated that there were no additional factors of disability. The January 2017 letter from the private doctor stated that the Veteran had weakness and fatigability in his legs only during severe flare ups. As the reported fatigue and weakness is temporary and infrequent, the severity and frequency does not more nearly approximate the next higher disability rating for the thoracolumbar spine (40 percent) which is to be assigned in cases where the Veteran's forward flexion is 30 degrees or less or there is favorable ankylosis of the thoracolumbar spine. Regarding Footnote 1 to the General Rating Formula for Disabilities and Injuries of the Spine during this period, the Veteran did not report radiculopathy of the lower extremities, there was no evidence of neurological disability in his treatment records, and both the September 2017 VA spine examination stated that there was no evidence of radiculopathy. From November 30, 2021 In his November 2021 testimony before the Board, the Veteran indicated that his condition had worsened. The Board remanded and directed the RO to obtain a new examination which was completed in March 2022. The March 2022 examination calls for a 40 percent rating as the Veteran had forward flexion limited to 20 degrees during flare ups. 38 C.F.R. § 4.71A. A higher rating is not warranted under the General Rating Formula as the evidence does not show ankylosis of the thoracolumbar spine at any time. Id. The Board has considered the additional factors of disability under 38 C.F.R. §§ 4.40 and 4.45. The Veteran reported daily back spasms and the March 2022 examiner found the Veteran's muscle strength was normal and there were no additional factors of disability. Therefore, the Veteran's impairment does not more nearly approximate ankylosis, which would call for a higher 50 or 100 percent rating. As the Veteran's November 30, 2021, testimony indicated that the condition had worsened, the increase to 40 percent is effective as of that date. A separate rating was granted for radiculopathy of the lower extremities in the June 2022 rating decision. 2. Entitlement to service connection for hearing loss The Veteran contends that he has bilateral hearing loss which was caused by exposure to hazardous noise during service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires: (1) the existence of a present disability; (2) 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 - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases (such as hearing loss as an organic disease of the nervous system) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307, 3.309. If a condition listed as a chronic disease in § 3.309(a) is noted during service but is either shown not to be chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA regulations provide that a hearing impairment is a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater, or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. Turning to the evidence, the Veteran's DD-214 shows that he served in excavating for the Navy. During service, the Veteran's hearing was tested using the whispered voice test. The Veteran scored 15/15 in both ears in November 1965, January 1967, March 1967, October 1968, and March 1971. He denied any hearing loss in the reports of medical history that he completed in January 1967 and March 1971. The Veteran underwent a VA hearing examination in September 2015. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 10 25 25 LEFT 15 15 20 25 25 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear. The examiner diagnosed bilateral sensorineural hearing loss in the range of 6000 Hz or higher. The examiner said that there were no permanent positive threshold shifts in either ear and that any hearing loss was less likely than not caused by military service. The examiner's rationale was that the Veteran's hearing was normal through at least April 1979 and there was no complaint or treatment for hearing loss during active-duty service. The Veteran's VA treatment records listed bilateral hearing loss as a problem at least as early as March 2021. In his November 2021 testimony to the Board (involving an issue other than the ones currently on appeal herein), the Veteran said that he was exposed to loud noises as a heavy equipment operator during active-duty service, operating bulldozers, graters, rock crushers and earth movers. The Veteran said that he was issued hearing protection but it was ineffective. See Hearing Transcript, p14. The Veteran testified that his hearing loss onset during his service in the Reserves after active duty, and his testimony indicated that his hearing worsened since his examination in 2015. Id., p16, 19. VA treated the Veteran for hearing loss in January 2022. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 30 35 LEFT 15 20 20 35 45 Speech audiometry was not tested. The Veteran underwent a VA examination for hearing loss in March 2022. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 30 35 LEFT 10 15 25 30 40 Speech audiometry revealed speech recognition ability of 100 percent in both ears. The examiner diagnosed bilateral sensorineural hearing loss. He stated that there was no permanent positive threshold shift greater than normal measurement variability for either ear, but concluded that the hearing loss is at least as likely as not caused by hazardous noise exposure. The Veteran told the examiner that his hearing loss onset over 20 years ago. In several addendum opinions prepared in March 2022, a VA examiner opined that the Veteran's hearing loss was not caused or aggravated by his service-connected disabilities including heart disease, PTSD, lumbar degenerative disc disease, or tinnitus. Turning to the requirements of service connection, the Veteran served in excavating and he reported exposure to hazardous noise during service. Exposure to hazardous noise is consistent with the machinery involved in excavation and the Veteran's statements are credible; therefore, the evidence supports a finding of hazardous noise exposure and the first requirement of service connection has been met. Concerning a current disability, the September 2015 hearing examination did not show a hearing impairment that qualifies as hearing loss for VA purposes. 38 C.F.R. § 3.385. The January 2022 and March 2022 pure tone threshold testing showed hearing loss according to the applicable VA regulation in the left ear but not in the right ear. Id. Therefore, Veteran has hearing loss for VA purposes in his left ear but not in his right ear. The evidence is at least in equipoise that the Veteran's left ear hearing loss was caused by exposure to hazardous noise during his active-duty service. The Veteran testified that he was exposed to hazardous noise during his active-duty service and that his hearing loss onset during his reserve duty, after he concluded his active duty service. The September 2015 examiner opined that any hearing loss was less likely than not related to service but the March 2022 examiner opined that any such hearing loss was likely related to service. The evidence is at least in equipoise and service connection is warranted for left ear hearing loss. Service connection cannot be established for right ear hearing loss because the objective audiometric findings reflect that the Veteran does not have a current hearing loss disability for VA purposes in the right ear. Until such findings show hearing loss that meets the criteria for a disability under 38 C.F.R. § 3.385, there can be no entitlement to service connection. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). J. Nichols Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.