Citation Nr: 0007637 Decision Date: 03/21/00 Archive Date: 03/28/00 DOCKET NO. 93-16 147 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUES 1. Entitlement to an increased rating for service-connected lumbosacral strain, currently evaluated 10 percent disabling. 2. Entitlement to an increased (compensable) rating for service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Wasser, Associate Counsel INTRODUCTION The veteran served on active duty from December 1963 to May 1967. This case comes to the Board of Veterans' Appeals (Board) from a November 1992 RO decision which, in pertinent part, denied an increase in a 10 percent rating for service- connected lumbosacral strain, and denied an increase in a noncompensable rating for service-connected bilateral hearing loss. The veteran initially requested a Board hearing, but by a statement dated in September 1993, he withdrew his Board hearing request, and requested a hearing before an RO hearing officer. An RO hearing was held in October 1993. In March 1998, the Board remanded the case to the RO for further evidentiary development. The case was subsequently returned to the Board. FINDINGS OF FACT 1. The veteran's service-connected lumbosacral strain is manifested by no more than slight limitation of motion of the lumbosacral spine, and complaints of characteristic pain on motion. 2. The veteran's service-connected bilateral hearing loss is currently manifested by auditory acuity level I in the right ear, and auditory acuity in the left ear which varies between level I and level II. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for lumbosacral strain have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Codes 5292, 5295 (1999). 2. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.85, Code 6100 (1998 and 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran served on active duty from December 1963 to May 1967. A review of his service medical records shows that he was treated for lumbosacral strain. Bilateral hearing loss was noted on separation medical examination. In a January 1968 decision, the RO established service connection for lumbosacral strain, with a 10 percent rating, and for bilateral hearing loss, with a noncompensable rating. Such ratings have remained in effect to the present. VA outpatient treatment records dated in 1991 reflect treatment for a variety of conditions. A January 1991 treatment note shows that the veteran complained of arthralgias in his back, legs, and arms. In August 1992, the veteran submitted claims for increased ratings for lumbosacral strain and bilateral hearing loss. At a September 1992 VA examination, audiometric testing revealed that pure tone decibel thresholds were recorded at 1,000, 2,000, 3,000 and 4,000 hertz as 25, 25, 25, and 45 respectively (for an average of 30 decibels) in the right ear; and 25, 20, 30, and 30 respectively (for an average of 26 decibels) in the left ear. A report of a September 1992 otological examination indicates a diagnosis of mildly scarred but intact ear drums. At a September 1992 VA orthopedic examination, the veteran had normal ambulation with no limp, he could stand on either foot unaided on both the heels and toes, there were no postural or fixed deformities, and the back musculature was normal. Range of motion was as follows: forward flexion to 80 degrees, backward extension to 10 degrees, left and right lateral flexion to 30 degrees, and left and right rotation to 45 degrees. There was no objective evidence of pain on motion, and no evidence of neurological involvement. The diagnosis was no abnormal objective physical findings. By a statement dated in May 1993, the veteran essentially contended that his service-connected lumbosacral strain and bilateral hearing loss were more disabling than currently evaluated. At an October 1993 RO hearing, the veteran reiterated his assertions. He stated that he had two ruptured discs in his back, and complained of a loss of sensation. He stated that if he sat or stood for too long he had pain which radiated down both legs. He stated that he had to stop working as a mail handler due to his back pain. He stated that he received treatment for this condition whenever he was able, and said he was treated by a chiropractor twice weekly. He asserted that his recent VA examination was inadequate. With respect to his bilateral hearing loss, he reported difficulty hearing conversations. In March 1998, the Board remanded the claims for increased ratings to the RO partly for VA examinations, and partly to request the veteran to provide information regarding any ongoing treatment for lumbosacral strain and bilateral hearing loss. By a letter to the veteran dated in May 1998, the RO requested that he provide names, addresses, and dates regarding the private chiropractor he referenced at his RO hearing, and provide names, addresses and dates regarding any treatment for lumbosacral strain or bilateral hearing loss since 1991. The veteran did not respond to this letter. An October 1998 memorandum from a VA Medical Center reflects that the veteran failed to report for two scheduled VA examinations. At a December 1998 VA otological examination, the auricles, external canals, and tympani were within normal limits, the tympanic membranes were intact and mobile, the mastoid was grossly normal, and there was no active ear disease. The diagnosis was mild sensorineural hearing loss. At a December 1998 VA examination, audiometric testing revealed that pure tone decibel thresholds were recorded at 1,000, 2,000, 3,000 and 4,000 hertz as 25, 30, 30, and 45 (for an average of 33 decibels) in the right ear; and 30, 30, 35, and 40 (for an average of 34) in the left ear. Speech discrimination was 92 percent correct in the right ear, and 90 percent correct in the left ear, and such scores were felt to be reliable. The veteran reported that he was unable to understand conversation, but the examiner noted that he conversed with the examiner quite well. The diagnosis was mild sloping to moderate sensorineural hearing loss with very good word recognition ability bilaterally. Amplification was not recommended. At a January 1999 VA orthopedic examination, the veteran complained of lower left back pain over his pelvis. He also complained of a left knee disability. He stated that sitting, lying down, and standing brought on his pain. He related that his back pain was constant, and that he was last treated for this condition by a chiropractor one year previously. On examination, the veteran's gait was slow, and he would not walk on his toes. He performed some heel walking, and tended to stagger. A sitting sciatic stretch was negative. There were paradoxical movements on dorsiflexion. Ankle jerks were 2+ bilaterally, and knee jerks were 1+ bilaterally. Range of motion of the trunk was as follows: forward flexion to 70 degrees with some flattening, and dorsal flexion to 40 degrees. He could sit up at 90 degrees with his knees and hips extended. There was tenderness to light touch at the left posterior pelvis, in the lumbar region and the thoracic region to T7. He complained of left pelvic and thigh pain on combined right hip and knee flexion of 40 degrees, and severe pain on straight leg raising on the right at 40 degrees. He reported sharp left lumbar, hip, and thigh pain on rotation of the extended left leg and under 5 degrees of knee and hip flexion. Straight leg raising of 5 degrees produced complaints of sharp left lumbar, hip, and thigh pain in a supine position. He was able to hold either leg elevated against gravity and slowly lower the leg. There was no spasm of the back in the prone position with the arms relaxed. The back musculature was normal, and there were no neurological abnormalities. The veteran walked without a limp and had normal gait and cadence. A January 1999 radiology report of X-ray study of the lumbosacral spine notes disc space narrowing with hypertrophic changes at L5- S1, with no other abnormalities; the impression was chronic degenerative disc disease at L5-S1. The clinical examiner stated that X-ray study of the lumbosacral spine showed no disc narrowing, with anterior ossification at L5-S1. The examiner opined that the veteran's complaints of lumbar pain were not those of structural disease, and said that the veteran might have some lumbar pains but the physical examination did not confirm such. He indicated that there was considerable variation in the veteran's findings at different times during the examination. The examiner noted that he reviewed the claims file in detail. An April 1999 VA outpatient treatment record shows that audiometric testing was performed: pure tone decibel thresholds were recorded at 1,000, 2,000, 3,000 and 4,000 hertz as 30, 35, 40, and 55 (for an average of 40 decibels) in the right ear; and 30, 35, 45, and 55 (for an average of 41 decibels) in the left ear. Speech discrimination was 100 percent correct in the right ear, and 92 percent correct in the left ear. The diagnostic impression was mild to moderate bilateral sensorineural hearing loss. Private medical records dated in January 2000 from A. L. Blank, M.D., reflect that he examined the veteran for complaints of hearing loss and pain and pressure in the ears. Dr. Blank stated that an ear, nose, and throat examination showed fluid in both ears, and retracted and restricted drums. He noted that an audiogram showed bilateral sensorineural hearing loss, which was mild to moderate in severity. He recommended hearing amplification. A January 2000 audiometric evaluation (in chart form) shows that pure tone decibel thresholds were recorded at 1,000, 2,000, 3,000 and 4,000 hertz as 30, 25, 45, and 45 (average of 36) in the right ear; and 35, 25, 35, and 40 (average of 34) in the left ear. Word recognition testing was 100 percent correct in both ears. By a statement dated in February 2000, the veteran's representative asserted that the case should be remanded to the RO as the recent VA audiological examination shows that the examiner did not review the claims file, and as the recent VA orthopedic examination contains conflicting information regarding X-ray findings. II. Analysis The veteran's claims for an increase in a 10 percent rating for his service-connected lumbosacral strain, and for an increase in a 0 percent rating for his service-connected bilateral hearing loss are well grounded, meaning plausible. The file shows that the RO has properly developed the evidence to the extent possible, and there is no further VA duty to assist the veteran with his claim. 38 U.S.C.A. § 5107(a). In this regard, the Board notes that, following the 1998 remand of the case, the veteran failed to provide requested information concerning treatment for a back disability. The duty to assist is not a one-way street, and the veteran has failed in his obligation to cooperate in developing his claim. Wood v. Derwinski, 1 Vet. App. 190 (1991). When rating the veteran's service-connected disabilities, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the present level of disability is of primary concern in a claim for an increased rating; the more recent evidence is generally the most relevant in such a claim, as it provides the most accurate picture of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. A. Lumbosacral Strain Slight limitation of motion of the lumbar spine warrants a 10 percent rating, moderate limitation of motion of the lumbar spine is rated 20 percent, and severe limitation of motion is rated 40 percent. 38 C.F.R. 4.71a, Code 5292. Lumbosacral strain is rated 10 percent when there is characteristic pain on motion. A 20 percent evaluation is in order when there is muscle spasm on extreme forward bending, and unilateral loss of lateral spine motion in the standing position. A 40 percent evaluation is warranted for severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwait's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R.§ 4.71a, Diagnostic Code 5295 At a VA examination in September 1992, there were no postural or fixed deformities, and the back musculature was normal. Range of motion was as follows: forward flexion to 80 degrees, backward extension to 10 degrees, left and right lateral flexion to 30 degrees, and left and right rotation to 45 degrees. There was no objective evidence of pain on motion, and no evidence of neurological involvement. The diagnosis was no abnormal objective physical findings. At a VA examination in January 1999 forward flexion was performed to 70 degrees with some flattening, and dorsal flexion to 40 degrees. The veteran could sit up at 90 degrees with his knees and hips extended. There was tenderness to light touch at the left posterior pelvis, in the lumbar region and the thoracic region to T7. There was pain on straight leg raising on the right at 40 degrees, and on the left at 5 degrees. There was no spasm of the back in the prone position with the arms relaxed. The back musculature was normal, and there were no neurological abnormalities. The veteran walked without a limp and had normal gait and cadence. A radiology report of X-ray study of the lumbosacral spine notes disc space narrowing with hypertrophic changes at L5-S1, with no other abnormalities; the impression was chronic degenerative disc disease at L5-S1. The clinical examiner apparently read the X-ray films differently, and related that there was no disc space narrowing and there was anterior ossification of the L5-S1 bodies. The examiner opined that the veteran's complaints of lumbar pain were not those of structural disease, and said that the veteran might have some lumbar pains but the physical examination did not confirm such. He indicated that there was considerable variation in the veteran's findings at different times during the examination. The clinical examiner at the last VA examination reported no arthritis of the low back by X-rays, notwithstanding the radiology report. Even assuming there is arthritis of the low back and that it is part of the service-connected lumbosacral strain, arthritis is rated based on limitation of motion. 38 C.F.R. § 4.71a, Codes 5003, 5010. The recent medical evidence on file indicates that the veteran's limitation of motion of the lumbosacral spine is no more than slight, which is to be rated 10 percent under Code 5292. Even considering the effects of pain during use or flare-ups, no more than slight limitation of motion of the low back is shown. 38 C.F.R. § 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). There is no evidence of record which shows he has moderate limitation of motion as required for a 20 percent rating under Code 5292. The Board finds that the evidence reflects the veteran has only mild lumbosacral strain, with symptoms consisting of slight limitation of motion and subjective complaints of characteristic pain on motion; and this is properly rated 10 percent under Code 5295. He has no muscle spasm on forward bending and no unilateral loss of lateral spine motion in a standing position, as required for an increased rating, to 20 percent, under Code 5295. As noted, the radiology report at the last VA examination recites an impression of L5-S1 degenerative disc disease, although the clinical examiner did not find this. Even assuming the veteran has degenerative disc disease and that it is part of his service-connected lumbosacral strain, the recent medical evidence, including the 1999 VA examination, does not show he currently has more than mild intervertebral disc syndrome, and thus a rating in excess of 10 percent would not be in order under Code 5293. The disability picture more nearly approximates the criteria for a 10 percent rating, than a 20 percent rating, under any of the pertinent diagnostic codes, and thus the lower rating of 10 percent is to be assigned. 38 C.F.R. § 4.7. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and an increased rating for lumbosacral strain must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski; 1 Vet. App. 49 (1990). B. Bilateral Hearing Loss Evaluations of bilateral defective hearing range from noncompensable to 100 percent. This is based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.85, Code 6100. (Regulations for rating hearing impairment were revised effective June 10, 1999, but there were no substantive changes which would affect the outcome of the present case. 64 Fed. Reg. 25202 (1999).) VA audiometry studies from 1992 to 1999, and the private study from 2000, all show average decibel thresholds (for the four frequencies) and speech discrimination scores which correlate to auditory acuity numeric designation I in the right ear, and auditory acuity numeric designation I or II (results have varied) in the left ear. See 38 C.F.R. § 4.85, Table VI. A numeric designation of I in one ear, and a numeric designation of either I or II in the other ear, correspond to a noncompensable evaluation. See 38 C.F.R. § 4.85, Table VII, Code 6100. Although the veteran's representative asserts that the case should be remanded for a VA examination in which the examiner reviews the claims file prior to performing an audiometric evaluation, the Board finds that such would serve no useful purpose. Hearing tests are performed in a controlled laboratory setting, and results of those tests, not historical records, determine the rating to be assigned. Moreover, the assignment of a disability rating for hearing impairment is derived from a mechanical application of the rating schedule to the specific numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Under such circumstances, a remand is not in order. In the instant case, the application of the rating schedule to the test results clearly demonstrates that no more than a noncompensable schedular rating is warranted. The evidence is not approximately balanced; rather, the preponderance of the evidence is against the claim. Thus, the reasonable doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert, supra. For the foregoing reasons, an increased rating for bilateral hearing loss must be denied. ORDER An increased rating for lumbosacral strain is denied. An increased rating for bilateral hearing loss is denied. L. W. TOBIN Member, Board of Veterans' Appeals