Citation Nr: A24027770 Decision Date: 05/28/24 Archive Date: 05/28/24 DOCKET NO. 200929-114891 DATE: May 28, 2024 ORDER Entitlement to service connection for other specified trauma and stressor related disorder is granted. An initial compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a cervical spine disability to include degenerative arthritis and intervertebral disc syndrome is remanded. Entitlement to service connection for right upper extremity radiculopathy is remanded. Entitlement to service connection for left upper extremity radiculopathy is remanded. Entitlement to service connection for restless leg syndrome is remanded. Entitlement to service connection for a recurrent headache disability to include tension headaches and cephalgia is remanded. Entitlement to service connection for chronic fatigue syndrome (CFS) is remanded. Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for a recurrent ulcer disability to include gastric ulcers is remanded. Entitlement to service connection for a heart disability to include coronary heart disease is remanded. Entitlement to a rating in excess of 10 percent prior to June 29, 2019, and in excess of 40 percent on and after June 29, 2019, for lumbar spine degenerative arthritis and intervertebral disc syndrome is remanded. Entitlement to a rating in excess of 40 percent for right lower extremity radiculopathy under 38 C.F.R. § 4.124a, Diagnostic Code 8520 is remanded. Entitlement to a rating in excess of 20 percent for right lower extremity anterior crural nerve radiculopathy under 38 C.F.R. § 4.124a, Diagnostic Code 8526 is remanded. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy under 38 C.F.R. § 4.124a, Diagnostic Code 8520 is remanded. Entitlement to a compensable rating for midline lumbar spine surgical scar residuals is remanded. FINDINGS OF FACT 1. Other specified trauma and stressor related disorder has been shown to have originated during active service. 2. The service connected bilateral hearing loss was shown to be manifested by no more than right ear Level I auditory acuity and left ear Level II auditory acuity. CONCLUSIONS OF LAW 1. The criteria for service connection for other specified trauma and stressor related disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1983 to August 2004. The Veteran served in Southwest Asia. In October 2019, the Agency of Original Jurisdiction recharacterized the service connected lumbar spine disability as lumbar spine degenerative arthritis with intervertebral disc syndrome; increased the rating for that disability from 10 percent to 40 percent, effective June 29, 2019; granted service connection for right lower extremity radiculopathy; assigned a 40 percent rating for that disability under 38 C.F.R. § 4.124a, Diagnostic Code 8520, effective June 29, 2019; granted service connection for right lower extremity anterior crural nerve radiculopathy rated as 20 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8526, effective June 29, 2019;, effective June 29, 2019; granted service connection for left lower extremity radiculopathy; assigned a 10 percent rating for that disability under 38 C.F.R. § 4.124a, Diagnostic Code 8520, effective June 29, 2019; granted service connection for midline lumbar spine surgical scar residuals; assigned a noncompensable rating for that disability, effective September 17, 2019; granted service connection for bilateral hearing loss; assigned a noncompensable rating for that disability, effective June 29, 2019; and denied service connection for other specified trauma and stressor related disorder, posttraumatic stress disorder (PTSD), cervical spine degenerative arthritis with intervertebral disc syndrome, right upper extremity radiculopathy, left upper extremity radiculopathy, restless leg syndrome, cephalgia, CFS, fibromyalgia, gastric ulcers, and coronary heart disease. In September 2020, the Veteran submitted a Decision Review Request: Board Appeal (Notice of Disagreement), VA Form 10182, and elected the Evidence Review docket. Therefore, the Board of Veterans' Appeals (Board) may only consider the evidence of record at the time of the October 2019 Agency of Original Jurisdiction decision on appeal, as well as any evidence submitted by the Veteran with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the Agency of Original Jurisdiction issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the Veteran would like the Department of Veterans Affairs (VA) to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim, VA Form 20-0995, and submit or identify this evidence. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. 38 C.F.R. § 3.2501. Specific instructions for filing a Supplemental Claim are included with this decision. However, as the Board is remanding the claims of service connection for a cervical spine disability, right upper extremity radiculopathy, left upper extremity radiculopathy, restless leg syndrome, a recurrent headache disability, CFS, fibromyalgia, a recurrent ulcer disability and a heart disability and increased ratings for the service connected lumbar spine disability, right lower extremity radiculopathy, left lower extremity radiculopathy, and midline lumbar spine surgical scar residuals, any evidence the Board could not consider will be considered by the Agency of Original Jurisdiction in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). Service Connection for a Psychiatric Disability Service connection may be granted for recurrent disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an inservice stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). The service treatment records do not refer to a psychiatric disability. The service records reflect that the Veteran served in the Air Force as a pavements and construction equipment operator and a professional military education instructor. He served in Southwest Asia. The report of a September 2019 psychiatric examination conducted for VA conveys the Veteran was diagnosed with other specified trauma and stressor related disorder. He was noted to not meet the criteria for a diagnosis of PTSD. The examiner concluded that "the claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness." She determined that the disability was related to the Veteran's in service stressful experiences including recovery efforts associated with a "a military plane crash at Hurlbert Field, Florida." The record is in at least equipoise as to whether the diagnosed other specified trauma and stressor related disorder originated during active service. A VA examiner diagnosed the Veteran with other specified trauma and stressor related disorder is at least as likely as not incurred in or caused by his stressful in service experiences including the recovery of a crashed aircraft. Upon resolution of all reasonable doubt in the Veteran's favor, the Board finds that service connection for other specified trauma and stressor related disorder is warranted. Compensable Rating for Bilateral Hearing Loss The Veteran contends that a 20 percent rating is warranted for the service connected bilateral hearing loss. Disability ratings are determined by comparing the Veteran's symptomatology during the relevant period with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). When the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). In rating hearing loss, ratings on a schedular basis are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are made. Lendenmann v. Principi, 3 Vet. App. 345 (1992). VA audiological evaluations should include both objective test results and a full description of the functional effect of the Veteran's hearing loss disability. Martinak v. Nicholson, 21 Vet. App. 447 (2007). The report of a September 2019 audiological examination conducted for VA states the Veteran reported difficulty with hearing voices clearly that creates frustration but has not prevented him from working. On audiometric evaluation, the Veteran exhibited pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 20 40 45 45 37.5 LEFT 30 40 50 50 42.5 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 88 percent in the left ear. The audiometric testing results show bilateral hearing loss productive of right ear Level I auditory acuity and left ear Level II auditory acuity. An exceptional pattern of hearing loss was not shown. 38 C.F.R. §§ 4.85, 4.86(a), Table VI. The bilateral hearing loss was shown to be manifested by no more than right ear Level I auditory acuity; left ear Level II auditory acuity; and difficulty hearing voices clearly. An exceptional pattern of hearing loss was not shown. Such findings do not warrant a compensable rating. 38 C.F.R. §§ 4.85, 4.86(a), Diagnostic Code 6100. The Board expressly acknowledges its consideration of the lay evidence of record, including the Veteran's reported difficulty with hearing voices clearly. However, ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Accordingly, a compensable rating for bilateral hearing loss is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disability to include degenerative arthritis and intervertebral disc syndrome, right upper extremity radiculopathy, and left upper extremity radiculopathy is remanded. VA should obtain all relevant service, VA, and private records which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The report of a September 2019 cervical spine examination conducted for VA states that the Veteran presented a history of "cervical pain with bilateral radiculitis" which began in the "early 2000s" while he "was doing construction digging ditches, jackhammer, and other physical activities." The examiner noted that "non military providers imaging performed, but not available at this time in the C file." The Veteran was diagnosed with cervical spine intervertebral disc syndrome and degenerative arthritis. The examiner commented that the "Veteran's medical records do not support that intervertebral disc syndrome and degenerative arthritis of the cervical spine with radiculopathy related to the Veteran's claimed cervical pain with bilateral radiculitis, is/are at least as likely as not (50 percent or greater probability) incurred in or caused by the cervical pain with radiculitis during service." The September 2019 examination report indicates that relevant "non military providers imaging" studies had been performed and not requested for incorporation into the record. That is a pre decisional error. 2. Entitlement to service connection for restless leg syndrome, a recurrent headache disability to include tension headaches and cephalgia, CFS, fibromyalgia, a recurrent ulcer disability to include gastric ulcers, and a heart disability to include is remanded. The Veteran asserts that service connection for restless leg syndrome, a recurrent headache disability, a recurrent ulcer disability, and a heart disability is warranted as the result of his deployment to Southwest Asia. The Veteran's service personnel records have not been associated with the claims record. That is a pre-decisional error. 3. Entitlement to a rating in excess of 10 percent prior to June 29, 2019, and in excess of 40 percent on and after June 29, 2019, for lumbar spine degenerative arthritis and intervertebral disc syndrome is remanded. The Veteran asserts that an increased rating for the lumbar spine disability is warranted. In the report of a September 2019 lumbar spine examination conducted for VA, the Veteran complained of lumbar spine "pain, stiffness, and range of motion is extremely limited and only worsened with time. On examination of the lumbar spine, the Veteran examined a range of motion of forward flexion to 45 degrees, no extension, lateral flexion to 5 degrees, bilaterally, and no lateral rotation; pain on all ranges of motion and weight bearing; and functional loss due to pain. The examiner commented that the Veteran was "unable to lift heavy objects or objects from ground level; unable to sit, stand, or walk for prolonged periods; and cannot work as a construction worker, policeman, fireman, or other occupation requiring full use of his lower back." The doctor did not indicate the degree at which the Veteran experienced pain on motion of the lumbar spine. Considering that deficiency, the Board finds that the functional loss associated with the service connected lumbar spine is unclear and the examination report is of limited probative value. Further VA lumbar spine evaluation is needed. That is a pre decisional error. 4. Entitlement to a rating in excess of 40 percent for right lower extremity radiculopathy under 38 C.F.R. § 4.124a, Diagnostic Code 8520; a rating in excess of 20 percent for right lower extremity anterior crural nerve radiculopathy under 38 C.F.R. § 4.124a, Diagnostic Code 8526; a rating in excess of 10 percent for left lower extremity radiculopathy under 38 C.F.R. § 4.124a, Diagnostic Code 8520; and a compensable rating for midline lumbar spine surgical scar residuals is remanded. The issues of a rating in excess of 40 percent for right lower extremity radiculopathy under 38 C.F.R. § 4.124a, Diagnostic Code 8520; a rating in excess of 20 percent for right lower extremity anterior crural nerve radiculopathy under 38 C.F.R. § 4.124a, Diagnostic Code 8526; a rating in excess of 10 percent for left lower extremity radiculopathy under 38 C.F.R. § 4.124a, Diagnostic Code 8520; and a compensable rating for midline lumbar spine surgical scar residuals are inextricably intertwined with the issue of increased ratings for the lumbar spine being remanded and must also be remanded. The matters are REMANDED for the following action: 1. Contact the National Personnel Records Center (NPRC), or the appropriate service entity, and request that the Veteran's service personnel records be associated with the record. 2. Ask the Veteran to complete a VA Form 21-4142 for the "non military providers imaging" studies of the cervical spine. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for a VA lumbar spine examination conducted by a medical to assist in determining the nature and severity of the service connected lumbar spine degenerative arthritis and intervertebral disc syndrome. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should provide the following opinions: (a.) Provide ranges of motion for passive and active motion of the lumbar spine for weight bearing and nonweight bearing. The examiner should indicate the degree of lumbar spine motion at which any observed pain begins. The examiner should state whether there is any additional loss of lumbar spine function due to painful motion, weakened motion, excess motion, fatigability, or incoordination. (b.) Indicate to what extent the Veteran experiences functional loss of the lumbar spine due to pain or any other symptoms during flare ups or with repeated use. (c.) State whether there is any ankylosis of any segment of the spine. (d.) Note any incapacitating episodes associated with the lumbar spine disability and the duration of such episodes. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. (e.) Describe any lower extremity neurologic disabilities identified as due to the lumbar spine disabilities, the nerves affected, and the level of impairment. J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Smith, 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.