Citation Nr: 0001957 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 96-20 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Dissatisfaction with the initial non-compensable rating assigned following a grant of service connection for bilateral hearing loss. 2. Entitlement to an increased rating for residuals of a compression fracture of the lumbar spine (L1 vertebra), currently evaluated as 20 percent disabling. ATTORNEY FOR THE BOARD L. Cryan, Associate Counsel INTRODUCTION The veteran had active service from June 1962 to September 1992. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 1993 rating decision by the Boston, Massachusetts Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection and noncompensable ratings for bilateral hearing loss and residuals of a compression fracture of the lumbar spine (L1 vertebra). The veteran appeals for higher ratings. The case was remanded back to the RO for further development in February 1999. In March 1999 the veteran's records were permanently transferred to the Manchester, New Hampshire RO at the veteran's request. An August 1999 RO rating decision increased the veteran's evaluation for his service-connected residuals of a compression fracture of the lumbar spine (L1 vertebra) to 20 percent effective from October 1992. The August 1999 rating decision also confirmed and continued the previous non-compensable rating for the veteran's service- connected bilateral hearing loss. The case was subsequently sent back to the Board on appeal. FINDINGS OF FACT 1. The veteran's claims are plausible, and sufficient evidence necessary for fair disposition of these claims has been obtained by the RO. 2. The veteran's hearing loss disability is currently manifested by an average puretone threshold of 46 decibels in the right ear and 44 decibels in the left ear, with speech recognition ability of 94 percent for the right ear and 88 percent for the left ear. 3. The veteran has Level "I" hearing in the right ear and Level "II" hearing in the left ear. 4. The veteran's residuals of a compression fracture of the lumbar spine, (L1 vertebra) are manifested by demonstrable deformity of the vertebra, and slight limitation of motion during flare-ups, without weakness or fatigability. CONCLUSIONS OF LAW 1. The veteran has stated well-grounded claims for a compensable disability rating for bilateral hearing loss, and for an increased rating for residuals of a compression fracture of the lumbar spine (L1 vertebra); VA has satisfied its duty to assist him in development of these claims. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). 2. The criteria for an initial compensable evaluation for bilateral hearing loss are not met under criteria in effect either before or since June 1999. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.85, 4.86, 4.87, Diagnostic Code 6100 (effective prior to June 10, 1999); 38 C.F.R. §§ 4.85, 4.86, 4.87; Diagnostic Code 6100 (effective June 10, 1999). 3. The criteria for an evaluation in excess of 20 percent for residuals of compression fracture of the lumbar spine (L1 vertebra) have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §4.71a, Codes 5285-5292 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board notes that both of the appellate issues relate to the initial rating following separation from service, and accordingly are potentially subject to graded ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). However, after review of each issue herein, the Board is of the opinion that such graded ratings are not appropriate in the veteran's case. The veteran's claims as to these issues are well-grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, the Board finds that he has presented plausible claims. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107 (West 1991). The evaluation assigned for a service-connected disability is established by comparing the manifestations indicated in the recent medical findings with the criteria in the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1999). When there is a question as to which of two evaluations should 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 (1999). Under 38 C.F.R. § 4.31, it is provided that where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. The rating schedule provides that when an unlisted disability is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (1999). Bilateral Hearing Loss In this case, the veteran contends that his bilateral hearing loss is more severe than is represented by the currently assigned non-compensable rating. Historically, the veteran was originally granted service connection for bilateral hearing loss in December 1993. A non-compensable rating was assigned, and the veteran appealed this initial rating. At the outset, the Board notes that effective June 10, 1999, during the pendency of this appeal, the VA's Ratings Schedule, 38 C.F.R. Part 4, was amended with regard to evaluating hearing impairment and other diseases of the ear. 64 Fed. Reg. 25208, 25209 (1999) (codified at 38 C.F.R. §§ 4.85-4.87). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has held that where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version more favorable to the veteran will apply. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). Although the RO did not consider the change in regulation, the Board concludes that this is not prejudicial as the change in regulation was not a substantive change regarding the portion of the regulations pertinent to this veteran's claim. Consequently, the change has no effect on the outcome of this claim. See Edenfield v. Brown, 8 Vet. App. 384 (1995). The Board finds, therefore, that it may proceed with a decision in this case without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as noted by the results of controlled speech discrimination tests, together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability from bilateral service-connected defective hearing, the rating schedule establishes 11 auditory acuity levels, designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Codes 6100 to 6110 (1999 in effect prior to June 10 1999; and under Code 6100 using comparable and appropriate Tables as specified under 38 C.F.R. §§ 4.85 and 4.86, as revised effective from June 10, 1999). In this case, the results listed below of the VA audiograms conducted in May 1993, December 1998 and August 1999, as well as the private audiogram conducted in May 1996 by private physician Stephen A. Smith, M.D. indicate that the veteran's hearing loss is properly evaluated as zero percent disabling. On the authorized audiological evaluation in May 1993, pure tone thresholds, in decibels, at the frequencies of 500, 1000, 2000, 3000, and 4000 Hz, were 15, 10, 15, 55, 50 in the right ear (average 33) and 15, 10, 15, 45, 50 (average 30) in the left ear. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 94 percent in the left ear. In May 1996, the veteran sought private medical treatment for hearing loss from Stephen A Smith, M.D. The veteran was afforded an audiogram which showed pure tone thresholds, in decibels, as 40 at 1000 Hz, 40 at 2000 Hz, and 60 at 4000 Hz in the right ear (average 47) with no reading shown at 3000 Hz. In the left ear, pure tone thresholds, in decibels were 25 at 1000 Hz, 40 at 2000 Hz, 60 at 4000 Hz (average 42) with no reading shown at 3000 Hz. Speech audiometry revealed speech recognition ability of 88 percent, bilaterally. On the authorized audiological evaluation in December 1998, pure tone thresholds, in decibels, at the frequencies of 500, 1000, 2000, 3000, and 4000 Hz, were 10, 40, 35, 55, 55 in the right ear (average 46) and 10, 20, 45, 55, 60 (average 45) in the left ear. Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 74 percent in the left ear. On the most recent authorized audiological evaluation in August 1999, pure tone thresholds, in decibels, at the frequencies of 500, 1000, 2000, 3000, and 4000 Hz, were 10, 40, 40, 50, 55 in the right ear (average 46) and 20, 35, 40, 45, 55 (average 44) in the left ear. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 88 percent in the left ear. Analyzing the results of the most recent audiogram, based on a 94 percent speech recognition score and a 46-decibel average puretone threshold in the right ear, Table VI indicates a designation of Level "I" for the right ear. Based on an 88 percent speech recognition score and a 44- decibel average puretone threshold, Table VI indicates a designation of Level "II" for the left ear. When applied to Table VII, the numeric designations of "I" for the better ear and "II" for the poorer ear also translate to a zero percent evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100 (1999). The Board notes that the results of the outpatient audiology report from December 1998, if viewed in isolation, would meet the criteria for a 10 percent evaluation according to Table VII, Diagnostic Code 6100. This result is based on the lower speech recognition scores of 76 percent and 74 percent for the right and left ear, respectively. Specifically, the December 1998 audiogram shows a 76 percent speech recognition score with a 46-decibel average puretone threshold in the right ear (indicating a Table VI designation of Level III for the right ear), and a 74 percent speech recognition score with a 45-decibel average puretone threshold in the left ear (indicating a Table VI designation of Level IV for the left ear). However, the Board points out that according to the May 1993 VA audio examination the veteran's speech recognition was 100 percent in the right ear and 94 percent in the left ear, and according to the May 1996 private audio examination the veteran's speech recognition was 88 percent bilaterally. Moreover, the veteran's speech recognition at the most recent VA audio examination was 94 percent in the right ear and 88 percent in the left ear. These figures actually indicate a recent improvement in the veteran's speech recognition score. As such, the preponderance of the evidence is against entitlement of a compensable rating for the veteran's service-connected hearing loss. The Board acknowledges the veteran's complaints that his hearing loss is more disabling than currently evaluated. While there is no dispute in this case that the veteran does have a hearing loss in each ear, the overall severity of such hearing loss falls short of meeting the criteria for a compensable rating. In this regard, the Board notes that the most recent August 1999 VA audiology examination failed to show that the veteran's bilateral hearing loss is more than noncompensably disabling with application of the pertinent rating criteria. The Board has no discretion in this regard and must predicate its determination on the basis of the preponderance of the evidence extracted from the audiology studies on record. For the foregoing reasons, the Board concludes that the evidentiary record does not support a grant of entitlement to a compensable evaluation for bilateral hearing loss with application of all pertinent governing criteria. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.85, 4.87a, Diagnostic Code 6100 (1999). Residuals of a Compression Fracture of the Lumbar Spine (L1 Vertebra) In this case, the veteran contends that his residuals of a compression fracture of the lumbar spine (L1 vertebra) to include low back pain is more severe than is represented by the current 20 percent rating assigned to that disability. Historically, the Board notes that the veteran was originally granted service connection for residuals of a compression fracture of the lumbar spine (L1 vertebra) with a non- compensable evaluation, in December 1993. The veteran appealed that decision. The Board thereafter remanded the case back to the RO for further development to include a current VA examination. During the pendency of the veteran's claim, the RO issued an August 1999 rating decision which increased the veteran's evaluation for his service connection residuals of a compression fracture of the lumbar spine (L1 vertebra) from a non-compensable evaluation to 20 percent. Specifically, the RO indicated that the veteran's low back disability was manifested by slight limitation of motion, due to slight muscle spasm and painful motion on rotation to the right only, and x-ray evidence of a demonstrable deformity (loss of height) of a vertebral body. The Court has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the matter of an increased rating for residuals of a compression fracture of the lumbar spine (L1 vertebra) remains in appellate status. Examination of the lumbar spine during a May 1993 VA examination revealed full range of motion and no tenderness. Neurological evaluation was also normal. The veteran was afforded a VA orthopedic examination limited to the lumbar spine in June 1999. The examiner indicated that he reviewed the veteran's C-folder. At the time of the examination, the veteran reported that he took no medications for his back problem. The veteran reported frequent gym attendance and work outs. The veteran reported pain in his upper lumbar area on bending over and after jogging, gardening, or using his weed whacker. The veteran reported no weakness during work-outs at the gym, but did report stiffness. There was no reported fatigability or lack of endurance. The veteran reported that he has flare-ups 2 to 3 times per month which last one day. The veteran stated that his pain is moderate in degree during a flare up, and that flare-ups are precipitated by bending over, jogging, and gardening. The examiner noted that he did not see the veteran during a flare-up, but estimated that the additional impairment during a flare-up would be in the range of 10-20 percent. The examiner noted no back brace and no surgery. The examiner's functional assessment indicated that the veteran is able to retain his usual occupation of engineer for the government at Hanscomb Air Force Base, but his daily activities are limited due to the fact that he cannot run, jog, garden, or repeatedly bend over without developing pain in his back. Physical examination of the lumbar spine showed a normal lordotic curve. There was some slight spasm of the right dorsal muscles. Straight leg raising was 90 degrees on the right and 90 degrees on the left, both normal. With the goniometer, the veteran had excellent range of motion due to his continual working out in the gym. Forward flexion was 100 degrees, extension backward was 35 degrees. Lateral flexion was 40 degrees to the right and the left. On rotation to the right of 35 degrees there was pain noted in the upper lumbar area and rotation of the left did not cause any pain. Goldthwait sign was negative on the right and left. Ober sign was negative on the right and left. Ely sign was negative on the toes and heels. The patellar and ankle reflexes were equal bilaterally and normal. There was no weakness of flexion or extension of the thighs, knees, ankles or toes. Vibratory sensation was intact. X-rays of the lumbosacral spine showed a loss of height of L1 without any other abnormality. The diagnosis was compression fracture of L1 and slight spasm of the right lumbar dorsal muscles with pain on rotation to the right. No definite weakness or fatigability was observed. The examiner concluded by reiterating that the veteran's disability could significantly limit functional ability during flare-ups or when his back is used repeatedly over a period of time. The examiner opined, as noted above, that the estimated additional loss of motion during a flare-up is 10 to 20 percent. In evaluating increased rating claims, the Board will also consider the provisions of 38 C.F.R. §§ 4.40, 4.45 (1999). Under 38 C.F.R. § 4.40, functional loss or weakness due to pain supported by adequate pathology and evidenced by the visible behavior of the appellant is deemed a serious disability. In the case of DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court expounded on the necessary evidence required for a full evaluation of orthopedic disabilities. In this case, the Court held that ratings based on limitation of motion do not subsume 38 C.F.R. § 4.40 (1999) or 38 C.F.R. § 4.45 (1999). It was also held that the provisions of 38 C.F.R. § 4.14 (1999) (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. However, the Board notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The veteran's lumbar spine disability is currently evaluated under Codes 5285-5292. Under the provisions of Code 5285 residuals of a spine fracture injury, with cord involvement, where the veteran is bedridden or where the veteran requires long leg braces, are rated 100 percent disabling; without cord involvement, but with abnormal mobility requiring a neck brace (jury mast), a 60 percent rating is assigned. In other cases, the residuals will be rated according to definite limited motion or muscle spasm, adding 10 percent for demonstrable deformity of the vertebral body. 38 C.F.R. § 4.71a, Code 5285 (1999). Under Diagnostic Code 5292, a 10 percent rating will be assigned where there is evidence of slight limitation of motion of the lumbar spine. A 20 percent rating is assigned where there is moderate limitation of motion and a 40 percent rating will be assigned when there is severe limitation of motion. 38 C.F.R. § 4.71a, Code 5292 (1999). The Board has also considered the applicability of other diagnostic codes for appropriately rating the service- connected lumbar spine disability. A 40 percent evaluation may be assigned for severe intervertebral disc syndrome with recurring attacks or 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, a loss of lateral motion with osteo- arthritic 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, Codes 5293, 5295 (1999). The Board recognizes that there are situations in which the application of 38 C.F.R. §§ 4.40, 4.45, or 4.59 is warranted in order to evaluate the existence of any functional loss due to pain, or any weakened movement, excess fatigability, incoordination, or pain on movement of the veteran's joints when the rating code under which the veteran is rated does not contemplate these factors. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In this regard, the Board finds that the current disability rating adequately compensates the veteran for his slight limitation of motion and functional loss. Specifically, as indicated above, the range of motion of the veteran's lumbar spine was within normal limits based on the June 1999 VA examination, and no weakness or fatigability was noted. The veteran contends that he suffers flare-ups two to three times per month. In accordance with the directives set forth in DeLuca, the examiner indicated, based on the veteran's reported history and review of the C-file, that the veteran's additional impairment of the lumbar spine during flare-ups was in the range of 10 to 20 percent. Thus, the Board finds that the overall clinical picture is most consistent with impairment due to slight limitation of motion which, if rated solely on that basis, would warrant a 10 percent rating under diagnostic code 5292. The Board also finds that the additional 10 percent rating assigned under Diagnostic Code 5285 is appropriate given the vertebral findings noted on x-ray. The Diagnostic code provides for a 10 percent rating for demonstrable deformity resulting from a fractured vertebra. In this case, the Board finds that the loss of vertebral body height as shown on x- ray is a demonstrable deformity, even though no other abnormality was radiographically seen. However, the veteran does not meet the requirement for the next higher 60 percent evaluation under this code, as he has not demonstrated abnormal mobility requiring a neck brace (jury mast). Accordingly, the Board finds that the 20 percent disability rating is sufficient to compensate for the veteran's demonstrable deformity of loss of height (10 percent under Diagnostic Code 5285) as well as pain and slight limitation of motion during flare-ups (10 percent under Diagnostic Code 5292). Thus, the current level of disability shown is encompassed by the rating assigned, and the criteria for an evaluation in excess of 20 percent for residuals of compression fracture of the lumbar spine (L1 vertebra) have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §4.71a, Codes 5285-5292 (1999). As the preponderance of the evidence is against the veteran's claim for increased compensation, the reasonable doubt doctrine does not apply. 38 U.S.C.A. § 5107 (West 1991). ORDER Entitlement to a compensable disability rating for bilateral hearing loss is denied. Entitlement to an increased rating for service-connected residuals of a compression fracture (L1 vertebra) is denied. D. C. Spickler Member, Board of Veterans' Appeals