BVA9504352 DOCKET NO. 92-24 406 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for defective hearing in the left ear. 2. Entitlement to an increased rating for ankylosing spondylitis. 3. Entitlement to an increased (compensable) rating for defective hearing in the right ear. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD W. Pope, Counsel INTRODUCTION The veteran had nearly continuous active service from July 1953 to June 1961. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 1992 rating decision. The Board remanded the appeal to the RO for further development in May 1994. A September 1994 rating decision, based on the results of a June 1994 VA orthopedic examination, assigned individual disability ratings of 10 percent for ankylosing spondylitis of the dorsal spine and 20 percent for ankylosing spondylitis of the lumbar spine. Since the June 1994 examination also revealed ankylosing spondylitis of the cervical spine, the Board assumes jurisdiction to evaluate and assign a separate disability rating for this already service-connected disease process. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that service connection is warranted for defective hearing in the left ear because it was incurred due to exposure to acoustic trauma while assigned to an artillery unit during his military service. It is also contended that his service-connected defective hearing of the right ear and ankylosing spondylitis are productive of greater impairment than reflected by the disability ratings currently assigned. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim of service connection for defective hearing in the left ear and the claims for a rating greater than 20 percent for ankylosing spondylitis of the lumbar spine, a rating greater than 10 percent for ankylosing spondylitis of the dorsal spine, and a compensable disability rating for defective hearing in the right ear. The Board also finds that the evidence of record favors the claim for increase and supports the grant of a 20 percent rating for ankylosing spondylitis of the cervical spine. FINDINGS OF FACT 1. All relevant evidence referable to the current appeal has been requested by the RO. 2. Left ear hearing loss meeting VA's criteria for service connection was not demonstrated until many years after the veteran's separation from service and has not been shown to be related to service. 3. Ankylosing spondylitis of the dorsal spine is manifested by symptomatology including pain on motion and no more than severe limitation of motion. 4. Ankylosing spondylitis of the lumbar spine is manifested by symptomatology including pain on motion and no more than moderate limitation of motion as manifested by forward flexion to 90 degrees. 5. Ankylosing spondylitis of the cervical spine is manifested by symptomatology including pain on motion and no more than moderate limitation of motion, as manifested by forward flexion to 60 degrees. 6. A VA audiological examination in June 1994 showed pure tone thresholds in the four frequencies from 1,000 to 4,000 hertz which averaged 69 decibels in the right ear, with a speech recognition ability of 68 percent. CONCLUSIONS OF LAW 1. The veteran does not have defective hearing in the left ear as a result of disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.303, 3.385 (1993). 2. A rating greater than 10 percent for ankylosing spondylitis of the dorsal spine is not warranted. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 4.20, 4.71, Codes 5002, 5291 (1993). 3. A rating greater than 20 percent for ankylosing spondylitis of the lumbar spine is not warranted. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 4.20, 4.71, Codes 5002, 5292 (1993). 4. A rating of 20 percent for ankylosing spondylitis of the cervical spine is warranted. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 4.20, 4.71, Codes 5002, 5290 (1993). 5. The criteria for a compensable rating for defective hearing in the right ear are not met. 38 U.S.C.A. §§ 1155, 1160, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.321, 4.85, 4.87, Code 6100 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that the veteran's claims are well- grounded within the meaning of 38 U.S.C.A. § 5107, and that all relevant facts have been properly developed for this appeal. I. Service Connection for Defective Hearing in the Left Ear Service connection may be granted for a disability which is shown to have been incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. When a disease was not initially manifested during service or within the applicable presumption period, the appellant may establish the "required nexus" for service connection by evidence demonstrating a medical relationship between the current disability and the service. 38 C.F.R. § 3.303(d); Godfrey v. Derwinski, 2 Vet.App. 352, 356 (1992). As noted in the Board's May 1994 remand, the veteran's May 1961 service separation examination included audiometric testing for the left ear which produced "results, when converted from ASA to ISO standards, [of] 30, 35, 25, 15, 15 and 20 for the 250, 500, 1000, 2000, 4000 and 8000 Hertz levels, respectfully." The first related postservice medical evidence, a report of a June 1992 VA examination disclosed that the veteran had reported being an oil field worker since his service discharge in 1961. An audiological examination revealed pure tone thresholds of 10, 15, 50, 60 and 60 decibels in the veteran's left ear at 500, 1000, 2000, 3000 and 4000 Hertz, respectively. His left ear speech discrimination ability was 92 percent. The test summary reported moderately severe sensorineural hearing loss in the left ear. A March 1994 Board remand instructed the RO to accord the veteran appropriate examinations concerning hearing disability of the left ear and specified that "[t]he examiner should [determine] whether the test findings in service were reflective of hearing loss and the likelihood that any currently demonstrated hearing loss is related to any abnormal service findings." A VA audiological examination in June 1994 revealed pure tone thresholds of 15, 20, 55, 65 and 65 decibels in the veteran's left ear at 500, 1000, 2000, 3000 and 4000 Hertz, respectively. Speech discrimination ability was 86 percent in the left ear. The summary of test results reported a mild sloping to severe sensorineural hearing loss in the left ear and speech recognition ability consistent with the degree of loss. During a July 1994 VA ear, nose and throat (ENT) examination the veteran reported that he had experienced gradual hearing loss in the left ear with increased discrimination problems, and that he had worked around oil rigs in recent years with exposure to significant noise. The examination disclosed no physical abnormalities of the veteran's left ear. In an August 1994 addendum the examining physician stated that the veteran's May 1961 audiometric testing: [S]howed a mild low frequency loss with normal high frequencies...[while] tests now show normal lower frequencies with a high frequency loss....Therefore, this hearing loss was not present at the time of [the veteran's] discharge and since he has continued to work around oil rigs, his hearing loss would be secondary to his subsequent acoustic trauma. Upon consideration of the evidence presented, the Board wishes to point out that VA is held to a strict definition concerning hearing acuity and an award of service connection for defective hearing. The recently revised regulation provides that: [I]mpaired hearing will be considered to be 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 threshold for at least three of these frequencies 500, 1000, 2000, 3000, 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 ( Nov. 1994). As is apparent from the results of the audiometric testing in May 1961, and noted by the VA examiner in August 1994, left ear hearing loss meeting these standards was not present at the time of the veteran's separation from service. See 38 C.F.R. § 3.385. However, it is also apparent that the results of the audiological examinations in June 1992 and June 1994 confirm that the veteran's hearing status in the left ear is a disability for which service connection can be considered. Therefore, the question remaining before the Board is whether the veteran's current defective hearing in the left ear can be reasonably related to service. In this regard, it is recognized that the veteran was exposed to acoustic trauma during service. However, as shown, the first clinical evidence of defective hearing in the left ear was in June 1992, more than three decades after the veteran's separation from service, and the only medical evidence which addresses the suggested causal relationship with service is the August 1994 physician's opinion, which attributes the disability to acoustic trauma subsequent to service. As noted by the United States Court of Veterans Appeals, the unsupported lay assertions presented by the veteran concerning such questions of medical diagnosis or causation are not competent evidence. See Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). Accordingly, in the absence of evidence confirming defective hearing in the left ear until many years after service or competent evidence of the required nexus between such disability and service, the Board finds that the preponderance of the evidence is against the claim of service connection for defective hearing in the left ear. II. Increased Ratings Disability evaluations are determined by the application of a schedule for rating disabilities. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a condition not listed in the schedule is encountered, it is permissible to rate such a disability 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. A. Ankylosing Spondylitis The veteran's service medical records confirm a history of complaints of low back pain, often attributed to an injury in 1954. X-ray studies of the lumbar spine in December 1959 were reported as disclosing slight bony sclerosis along each sacroiliac joint, evaluated as "[p]robable old injuries." Although the veteran was hospitalized due to complaints of low back pain during February and March 1960, and again in May 1960, no disease was found. The first postservice medical evidence, a report of a June 1992 VA examination, disclosed that the veteran reported a back injury in 1954 with subsequent "recurrent non-radiating [back] pain which he associates with lifting, bending, prolonged sitting, and sometimes prolonged standing." An examination revealed moderately severe dorsal kyphosis with a mild dextroscoliosis in the lower dorsal spine. The curvature of the cervical and lumbosacral spine appeared to be normal. There was no paravertebral muscle spasm or tenderness. The veteran had full ranges of back motion, but complained of pain with motion. X-ray studies were reported as disclosing "fusion of the majority of the thoracic and upper lumbar spine consistent with ankylosing spondylitis." A September 1992 rating decision established service connection for ankylosing spondylitis and assigned a 10 percent disability rating, effective from December 30, 1991, the date of receipt of the veteran's claim. The veteran's ankylosing spondylitis is rated as analogous to rheumatoid arthritis which, when not evidenced as an active process, is evaluated for residuals such as limitation of motion or ankylosis under the appropriate Diagnostic Codes of the VA rating schedule for the specific joints involved. See 38 C.F.R. §§ 4.20, 4.71a, Code 5002. During a June 1994 VA orthopedic examination the veteran reported numerous physical limitations due to his back problems, including an inability to work overhead or look up because of limited motion and discomfort. A physical examination revealed mild paravertebral atrophy of the dorsal and lumbar spine with tightness over the fascia. The examiner noted no particular muscle spasm. There was tenderness over the dorsal spine to percussion and discomfort in the posterior aspects to anterior and posterior compression. There was tenderness over the lumbar spine to percussion. The veteran had lumbar forward flexion to 90 degrees, backward extension to 5 degrees, lateral bending to 5 degrees bilaterally, and rotation to 5 degrees bilaterally. There was no specific tenderness to palpation of the cervical spine. The veteran had cervical forward flexion to 60 degrees, backward extension to 40 degrees, lateral bending to 20 degrees bilaterally, and rotation to 40 degrees bilaterally. X-ray studies of the cervical, dorsal and lumbar spine were reported as suggestive of ankylosing spondylitis with a component of degenerative arthritis. Following receipt of laboratory studies, the examiner expressed the opinion that the veteran had ankylosing spondylitis which appeared to be arrested. As previously noted, a September 1994 rating decision assigned individual disability ratings of 10 percent for ankylosing spondylitis of the dorsal spine, and 20 percent for ankylosing spondylitis of the lumbar spine. The veteran's ankylosing spondylitis of the dorsal spine is rated under Diagnostic Code 5291 of the VA rating schedule, which assigns disability rating for limitation of motion of the dorsal spine. A 10 percent rating is assigned for moderate or severe limitation of motion. 38 C.F.R. § 4.71a, Code 5291. While the most recent evidence shows physical limitations which may be specifically attributable to the veteran's ankylosing spondylitis of the dorsal spine, there is no indication that such impairment is productive of more than severe limitation of motion. Since such limitation would not warrant a rating greater than 10 percent, the highest schedular rating assignable under Diagnostic Code 5291, the Board finds that the preponderance of the evidence is against a rating greater than the currently assigned 10 percent for the veteran's ankylosing spondylitis of the dorsal spine. The veteran's ankylosing spondylitis of the lumbar spine is rated under Diagnostic Code 5292 of the VA rating schedule, which assigns disability ratings for limitation of motion of the lumbar spine. A 10 percent rating is assigned for slight limitation of motion. Moderate limitation of motion warrants a 20 percent rating. A 40 percent rating is assigned for severe limitation of motion. 38 C.F.R. § 4.71a, Code 5292. In view of the fact that the disability evaluations to be assigned under the VA rating schedule are based on the average impairment of earning capacity (See 38 U.S.C.A. § 1155), the Board takes particular note of the reports of pain with lumbar motion. The most recent examination revealed measured ranges of such motion, including somewhat restricted backward extension, lateral bending and rotation. However, since the veteran retains almost complete forward flexion, (normal is 95 degrees), the Board finds that the overall limitation of motion of the lumbar spine cannot be characterized as more than moderate. Obviously such range of forward flexion eliminates consideration of a 40 percent rating, for severe limitation of motion under Diagnostic Code 5292, or for "favorable" ankylosis under Diagnostic Code 5289. In summary, the Board finds that the preponderance of the evidence is against a rating greater than the currently assigned 20 percent for the veteran's ankylosing spondylitis of the lumbar spine. As previously stated, the June 1994 examination revealed ankylosing spondylitis of the cervical spine. Diagnostic Code 5290 of the VA rating schedule, which assigns disability rating for limitation of motion of the cervical spine, provides a 10 percent rating for slight limitation of motion. Moderate limitation of motion warrants a 20 percent rating. A 30 percent rating is assigned for severe limitation of motion. 38 C.F.R. § 4.71a, Code 5290. The June 1994 examination revealed that the veteran had, approximately, 72 percent of normal cervical spine rotation (normal is 55 degrees), and 50 percent lateral bending (normal is 40 degrees). He also had almost complete forward flexion at 60 degrees (normal is 65 degrees), and 80 percent backward extension (normal is 55 degrees). The Board finds that these measured ranges, overall, indicate no more than slight limitation of motion of the cervical spine under Diagnostic Code 5290. However, The Board is also mindful of the aforementioned reports of pain with motion, especially the complaints of an inability to work overhead or look up. While it is clear that the impairment of the cervical spine due to ankylosing spondylosis is not productive of severe limitation, the Board finds that the evidence of record more nearly approximates the criteria for the assignment of a 20 percent rating for moderate limitation of motion of the cervical spine under Diagnostic Code 5290. B. Defective Hearing in the Right Ear As noted above, service connection for defective hearing in the left ear has not been established. The veteran's service medical records disclose decreased hearing acuity in the right ear at the time of his separation from service. The first related postservice clinical evidence, a report of a June 1992 VA audiological examination, revealed pure tone thresholds of 35, 60, 75 and 80 decibels in the veteran's right ear at 1000, 2000, 3000 and 4000 Hertz, respectively, for an average of 63 decibels. Speech discrimination ability was 88 percent in the right ear. The summary of test results reported severe sensorineural hearing loss in the right ear. Service connection for defective hearing in the right ear was established by rating decision in September 1992 and a noncompensable disability rating assigned, effective from December 30, 1991, the date of receipt of the veteran's claim. Since the veteran is not totally deaf in both ears, the hearing in his left (non-service-connected) ear must be considered to be normal for purposes of assigning a rating for the service- connected defective hearing in the right ear. See 38 U.S.C.A. 1160(a)(3); 38 C.F.R. §§ 4.85 and 4.87, Codes 6100 to 6101. In this regard, the findings of the July 1992 VA audiological examination are translatable to a numeric designation of III for the right ear, which warrants a noncompensable evaluation under Diagnostic Code 6100 of the rating schedule. The most recent hearing test, a VA audiological examination in June 1994, showed right ear pure tone thresholds of 50, 70, 80 and 75 decibels, for an average of 69 decibels, at the frequencies of 1,000, 2,000, 3,000, and 4,000 hertz, respectively. The veteran's right ear speech recognition ability was 68 percent. The findings of this audiological examination are translatable to a numeric designation of VI for the right ear, which also warrants a noncompensable evaluation under Diagnostic Code 6100 of the rating schedule. Upon review, the Board finds that the RO has properly evaluated the veteran's service-connected defective hearing in the right ear, assigning noncompensable ratings based upon the results of the June 1992 and June 1994 audiological examinations. In view of his clinical evidence, and the criteria set forth under Diagnostic Code 6100, the Board finds that the preponderance of the evidence is against the veteran's claim of a compensable rating for defective hearing in the right ear. ORDER A 20 percent rating for ankylosing spondylitis of the cervical spine is granted. Service connection for defective hearing in the left ear, and for an increased rating greater than 20 percent for ankylosing spondylitis of the lumbar spine, rating greater than 10 percent for ankylosing spondylitis of the dorsal spine, and compensable rating for defective hearing in the right ear is denied. STEPHEN L. WILKINS Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.