Citation Nr: 1134832 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 03-24 446 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a rating in excess of 10 percent for unilateral left ear hearing loss. 2. Entitlement to a rating in excess of 30 percent for degenerative joint disease (DJD) and exostosis of the right knee, status post total knee arthroplasty (TKA) since November 1, 2009. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1976 to April 1979. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision by the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO). In his August 2003 VA Form 9 (Substantive Appeal), the Veteran requested a video conference hearing before a member of the Board. In December 2005 correspondence, he withdrew the request. The Veteran's claims, in part, were previously denied by the Board in a June 2006 decision. In September 2007, the United States Court of Appeals for Veterans Claims (Court) granted an August 2007 Joint Motion for Partial Remand. The Veteran's claims were then remanded by the Board in December 2007 for additional development in accordance with the Court's Order. A June 2009 rating decision awarded the Veteran a temporary total (100 percent) convalescent rating for his right TKA disability, effective September 26, 2008 through October 31, 2009. [The period when his right TKA disability was rated totally disabling is not for consideration herein.] The case was again before the Board in March 2010 when it was remanded for additional development. [The Board's March 2010 decision also denied entitlement to a combined rating greater than 20 percent prior to September 26, 2008. He did not appeal the decision, and the period prior to September 26, 2008, is also not for consideration herein.] The issue has been characterized accordingly. Finally, the Board notes in the July 2011 informal hearing presentation, after the submission of additional evidence by the Veteran, the Veteran's representative explicitly stated, "contrary to what we indicated in our previous memo, we will waive RO consideration of all evidence not considered by the AMC." As noted in the March 2010 Board decision, in an August 2008 statement, the Veteran claimed that he had depression secondary to his service-connected right knee disability. Review of the file reveals that the matter has not been adjudicated. In July 2011, the Veteran raised additional matters, to include entitlement to a total disability rating based on individual unemployability (TDIU) (previously denied in the Board's June 2006 decision, and upheld by the Court). As no action has been taken on these matters, the Board does not have jurisdiction over them, and they are referred to the RO for initial development and consideration. FINDINGS OF FACT 1. Audiometric examinations correspond to a level VII for the left ear and a level I for the right ear. 2. At no time since November 1, 2009 is the Veteran's service-connected right knee disability shown to have been manifested by chronic residuals of TKA consisting of severe weakness or severe painful motion or impairment approximating such level of severity; compensable limitations of flexion or extension, instability, or ankylosis. CONCLUSIONS OF LAW 1. A rating in excess of 10 percent for unilateral left ear hearing loss is not warranted. 38 U.S.C.A. §§ 1155, 1160, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.383, 3.385, 4.1, 4.85, 4.86, 4.87, Diagnostic Code (Code) 6100 (2010). 2. A rating in excess of 30 percent since November 1, 2009 is not warranted for the Veteran's service-connected DJD and exostosis of the right knee, status post TKA. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.21, 4.71a, Codes 5055, 5260, 5261 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board's June 2006 decision contained an adequate discussion of the requirements of the VCAA's duty to notify [see the Board's June 2006, pages 16-18.] The Board concluded that notification duties had been satisfied. The Court-adopted Joint Motion for Partial Remand did not identify any defect in the Board's 2006 decision regarding the notification provisions of the VCAA. Nor did the parties or the Court itself identify any deficiencies with respect to VCAA notice compliance on the part of VA. Although the Court's Order serves to vacate, in part, the Board's 2006 denial and its legal efficacy, the Board's prior discussion nonetheless remains a matter of record, and one which was clearly provided to the Veteran. Examination of the now-vacated (in part) decision reveals that the Board clearly articulated the VCAA's notification requirements to the Veteran. Given the Court's injunction against piecemeal litigation, the Board is confident that the notification portions of the VCAA are not an issue in this case. That is, the Board believes that the law of the case is that there are no VCAA notification defects which have been raised by the Veteran and which need be addressed by the Board. Cf. Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997) [under the "law of the case" doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case, and therefore, Board is not free to do anything contrary to the Court's prior action with respect to the same claim]. Moreover, it is abundantly clear from pleadings to the Court, the Joint Motion itself, and statements made to the Board that the Veteran and his representative are fully aware of what is required under the VCAA. As for the duty to assist, the Veteran's postservice private treatment records, VA treatment and vocational rehabilitation records, Social Security Administration (SSA) records, VA authorized examination reports, and lay statements have been associated with the claims file. The Board especially notes that the Veteran was afforded a VA examination with respect to his right knee (during the period before the Board) in April 2010. He was also afforded VA examinations with respect to his service-connected left ear hearing loss disability in January 2003, July 2009, and April 2010 (with an addendum opinion in May 2010). The Board finds that the examination reports and medical opinions cumulatively provide sufficient information and are adequate for rating purposes, as the examination reports reflect familiarity with the pertinent medical history, and include all findings necessary for consideration of the applicable criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Regarding the Veteran's claim seeking an increased rating for his service-connected left ear hearing loss disability, the Board notes that the Veteran submitted a July 2007 Dr. D.C.L. private audiological evaluation report. For the reasons discussed below, the Board finds the private audiological report is, at least in part, inadequate for rating purposes. The Board finds no reason to return the audiological evaluation report for clarification of the findings of the puretone audiometry testing as there is no evidence, or suggestion, a controlled speech discrimination test was administered. In fact, the section of the report labeled "speech test" is blank. See, e.g., Giargiari v. Shinseki, No. 09-0084, 2010 WL 3516204, slip op. at *5 (Vet. App. Sept. 10, 2010) (finding that any error in failing to return a private audiological examination for clarification was harmless as it was undisputed that the examiner did not use a "recorded" word test); Cf. Savage v. Shinseki, 24 Vet. App. 259 (2011) (wherein the private audiological evaluation reports indicated that word recognition or speech discrimination scores/testing were conducted, although it was unclear whether the Maryland CNC test was administered, and clarification was necessary) (emphasis added). Hence, VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. B. Factual Background Historically, an October 1979 rating decision granted the Veteran service connection for unilateral left ear hearing loss due to in-service aggravation of pre-existing hearing loss, rating the disability 0 percent disabling. A March 1983 rating decision increased the rating for his service-connected left ear hearing loss disability to 10 percent, effective September 23, 1982. The instant claim for increase was received in October 2002. SSA treatment records include a November 2002 Dr. A.W.J. private psychological evaluation report noting the Veteran was able to hear adequately while directly facing the examiner and seated approximately 4 feet away. A December 2002 Midwest Medical Providers private treatment record noted no hearing impairment on physical examination. And an October 2003 treatment record noted left ear deafness on medical review of the Veteran's history. On January 2003 VA audiological evaluation, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 15 20 25 LEFT 70 75 70 70 85 The average puretone thresholds were 21 decibels for the right ear and 75 decibels for the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear, and 100 percent in the left ear. In his April 2003 notice of disagreement, the Veteran reported that his left ear hearing was totally gone and that his hearing aid does not help. Hines VA Medical Center (VAMC) treatment records include an April 2004 report noting the Veteran had been issued bilateral hearing aids by VA but that they had been broken/lost, and that he underwent reconstructive left ear surgery in 1998. VA treatment records also include in the Veteran's past medical history a diagnosis of deaf left ear. A July 2007 Dr. D.C.L. private audiological evaluation provided audiometry results in the form of a graphic-type audiogram. It noted the Veteran had 70 percent left ear hearing loss. In October 2007 correspondence, the Veteran interpreted the July 2007 private audiometry puretone thresholds, in decibels, as: HERTZ 500 1000 2000 3000 4000 LEFT 65 75 80 75 75 A January 2008 North Chicago VAMC audiology consult report noted the Veteran's complaint that speech is most difficult to understand in a car (which he is in daily), in a restaurant (indicating he goes to restaurants 2 to 3 times per week), and at meetings. The physician noted that in a quiet environment, the Veteran should be able to follow normal conversational speech. Some limitations may be noted when not facing the speaker, when at a distance, or when in the presence of background noise as he may miss/confuse some high-pitch consonant sounds and ask for repetitions of what was said at times. A February 2008 otolaryngology note diagnosed the Veteran with hearing loss and a flat tympanogram due to scarring from previous surgery. April 2008 correspondence from the Veteran's landlord indicated that the Veteran does not hear him when he talks while driving, and that he has to repeat himself, and that the Veteran has difficulty hearing at meetings. On July 2009 VA audiological evaluation, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 20 30 40 LEFT 65 75 75 75 95 The average puretone thresholds were 31 decibels for the right ear and 80 decibels for the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear, and 90 percent in the left ear. The Veteran reported he cannot hear the driver or passengers in the back seat while a passenger in an automobile, and that he has difficulty hearing in the presence of competing noise or in groups. On April 2010 VA examination (of the right knee), the Veteran reported he was doing well (since the right TKA) until about 3 months ago when he began to notice increasing pain. He reported he is on Tylenol for knee pain. He indicated he can walk approximately 1 block when he experiences knee pain and he has to stop and rest. He rated the pain a 5 to 6 (on a scale to 10) with any prolonged walking. On physical examination, it was noted he ambulated with a cane and slightly favored his right lower extremity. Examination of the shoes revealed equal wear. There were multiple nonadherent and nontender to palpation surgical 4mm. scars. Right knee range of motion was from 0 to 110 degrees without painful limitation. There was no additional functional impairment due to pain, weakness, fatigability, incoordination, or flare-up. The ligamentous structures were intact, and there was no evidence of laxity of the prosthesis, and no incoordination was demonstrated. There was no joint swelling or effusion present, and mild quadriceps atrophy. The examiner noted there was no evidence of any joint function loss due to the complaints of pain, and there was no pain noted on extension and flexion of the right knee. There are no incapacitating episodes or radiation of pain and no neurological findings or effect on the usual daily activities other than the Veteran's subjective complaints above. There was an exostosis in the area of the tibial tubercle, and tenderness to palpation to that area. X-rays revealed a prosthesis at the level of the right knee in good position. The diagnosis was postoperative right total knee replacement secondary to DJD. On April 2010 VA audiological evaluation, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 20 30 45 LEFT 70 75 75 75 90 The average puretone thresholds were 33 decibels for the right ear and 79 decibels for the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear, and 86 percent in the left ear. The Veteran reported that the television has to be loud and that he cannot hear soft speech. He also reported that he has to look directly at the speaker in a conversation and that he cannot hear the driver when he is a passenger in an automobile. In a May 2010 VA audiological addendum opinion regarding the functional effects caused by the Veteran's hearing disability, it was noted that the functional effects of the Veteran's hearing disability were reported in the April 2010 VA audiological evaluation report. Specifically, they were that the television has to be loud, he cannot hear soft speech, he has to look directly at the speaker in a conversation, he cannot hear the driver when he is a passenger in an automobile, and difficulty hearing in the presence of competing noise or in groups. C. Legal Criteria and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found however. This practice is known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). After careful consideration of the evidence, any reasonable doubt remaining as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. Where there is a question as to which of two evaluations apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Left Ear Hearing Loss Disability At the outset, the Board notes that the 10 percent rating currently assigned for the Veteran's left ear hearing loss disability has been in effect since September 1982, and is "protected" (i.e., may not be reduced). See 38 C.F.R. § 3.951(b). Evaluations for defective hearing are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992); see also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (indicating that the criteria for evaluating the degree of impairment resulting from hearing loss under the Rating Schedule, unlike extraschedular consideration under section 3.321(b) of the regulations, rely exclusively on objective test results). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. § 4.85. The Rating Schedule establishes 11 auditory acuity levels, designated from level I for essentially normal hearing acuity, through level XI for profound deafness. Id. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. The vertical rows in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. The numeric designation of impaired hearing (levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. Where there is an exceptional pattern of hearing impairment, a rating based on puretone thresholds alone may be assigned. 38 C.F.R. § 4.86. One such pattern occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000) is 55 decibels or more. 38 C.F.R. § 4.86(a). Another pattern occurs when the puretone threshold at 1000 Hertz is 30 decibels or less and the puretone threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(b). The Board notes that the method for evaluating unilateral hearing loss was amended shortly after the Veteran filed his increased rating claim. 38 U.S.C.A. § 1160 was amended by the Veterans Benefits Act of 2002, Pub. L. 107-330, Title I, Section 103, 116 Stat. 2821, effective December 6, 2002. Under the prior version, the nonservice-connected ear would be considered "normal," i.e., assigned a Roman numeral designation of "I," for rating purposes unless there is profound deafness in that ear. In the amended version, the phrase "total deafness" in the nonservice-connected ear was changed to "deafness" and the nonservice-connected ear is considered if the service-connected ear is 10 percent or more disabling. Here, the distinction in the law is irrelevant. Even when considered, the Veteran's right ear (applying the puretone decibel loss and percent of discrimination score to Table VI, as there is no evidence of an exceptional pattern of hearing impairment in the right ear) produces a finding of level I hearing acuity. See 38 C.F.R. § 4.85, Table VI. The pertinent question then is the numerical designation for the left ear. Applying the results of the January 2003 VA examination to Table VI produces a finding that the Veteran had level II hearing acuity in the left ear, and level VI hearing acuity when applying the results to Table VIa (as there is evidence of an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(a)). Under Table VII, a 0 percent rating is warranted when combining level I and level VI hearing acuity. Applying the results of the July 2009 VA examination to Table VI produces a finding that the Veteran had level III hearing acuity in the left ear, and level VII hearing acuity when applying the results to Table VIa (for an exceptional pattern of hearing impairment). Under Table VII, a 0 percent rating is warranted when combining level I and level VII hearing acuity. Applying the results of the April 2010 VA examination to Table VI produces a finding that the Veteran had level III hearing acuity in the left ear, and level VII hearing acuity when applying the results to Table VIa (for an exceptional pattern of hearing impairment). Under Table VII, a 0 percent rating is warranted when combining level I and level VII hearing acuity. The Board finds the July 2007 Dr. D.C.L. private audiological evaluation is, at least in part, inadequate for rating purposes, and thus lacks any substantial probative value. Significantly, under 38 C.F.R. § 4.85, an examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. The July 2007 Dr. D.C.L. private audiological evaluation contains no evidence even suggesting a controlled speech discrimination test was performed, and Dr. D.C.L. did not comment on the impairment of function caused by the Veteran's left ear hearing loss disability. See Martinak, 21 Vet. App. at 455. For purposes of this appeal only, even assuming the July 2007 private audiological evaluation was adequate for rating purposes, using the puretone thresholds reported by the Veteran in October 2007 (noted above) regarding the private audiological evaluation would result in a puretone threshold average of 76 for the left ear. Under Table VIa (as Table VI would be inapplicable because there is no evidence a controlled speech discrimination test was performed), applying the reported results of the July 2007 private audiological evaluation produces a finding that the Veteran had level VI hearing acuity in the left ear. Under Table VII, a 0 percent rating is warranted when combining level I and level VI hearing acuity. Thus, the July 2007 private audiological evaluation is of no benefit to the Veteran. Regardless, for the reasons discussed above, the Board finds the July 2007 Dr. D.C.L. private audiological evaluation, at least in part, inadequate for rating purposes, and lacking any substantial probative value. Under Table VII, the numeric designations of (at worst) level I in the right ear, and level VII in the left ear, requires the assignment of a 0 percent rating under Code 6100. 38 C.F.R. § 4.85. As noted above however, the Veteran's left ear hearing loss disability has been rated 10 percent disabling since September 1982 and is "protected" (i.e., may not be reduced). Inasmuch as there is no evidence that the Veteran's left ear hearing loss disability met the schedular requirements for a higher rating at any time during the appeal period, a "staged" increased rating is not warranted. In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held in pertinent part, in essence, that for a VA audiological evaluation to be adequate, in addition to reporting objective test results, the audiologist must describe the impairment of function caused by a hearing loss disability. The Court's rationale in requiring such description involves the potential application of 38 C.F.R. § 3.321(b). In this regard, the January 2003 VA examiner noted the Veteran's complaint of difficulty understanding conversational speech especially when people speak from behind him. The July 2009 VA examiner noted the Veteran's complaint of being unable to hear the driver or passengers in the back seat while he is a passenger in an automobile, and difficulty hearing in the presence of competing noise or in groups. And the April 2010 VA examiner (confirmed in a May 2010 addendum opinion) noted the Veteran's complaint that the television has to be loud, that he cannot hear soft speech, that he has to look directly at the speaker in a conversation, and that he cannot hear the driver when he is a passenger in an automobile. The Board finds that referral for extraschedular rating under 38 C.F.R. § 3.321(b) is not warranted. The functional loss noted and reported by the Veteran, i.e., difficulty understanding conversational speech especially when people speak from behind him, difficulty hearing in the presence of competing noise or in groups, being unable to hear the driver or passengers in the back seat while he is a passenger in an automobile, having to have the television loud, the inability to hear soft speech, having to look directly at someone speaking to him, is fully contemplated by the schedular criteria. See 38 C.F.R. § 4.1. Consequently, those criteria are not inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). Therefore, referral for consideration of an extraschedular evaluation is not warranted. In light of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim. Accordingly, it must be denied. Right Knee Disability The Veteran's service-connected right knee disability has been evaluated under Diagnostic Code 5055 as 30 percent disabling beginning November 1, 2009, pursuant to Hart. The Veteran claims that he is entitled to a rating in excess of the 30 percent already assigned for the period from November 1, 2009 until the present. [As noted above in the Introduction, the period when the Veteran's service-connected right knee disability was rated totally disabling, and the period prior to September 26, 2008, is not for consideration herein.] Diagnostic Code 5055, which governs knee replacement (prosthesis), provides for a 100 percent rating evaluation for one year after implantation of the prosthesis. A 60 percent rating is warranted where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain or limitation of motion, are to be rated by analogy to Codes 5256, 5261, 5262. The minimum rating for a prosthetic knee replacement is 30 percent. 38 C.F.R. § 4.71a. Code 5260 (for limitation of knee flexion) provides a 30 percent rating where limited to 15 degrees; 20 percent where limited to 30 degrees; 10 percent where limited to 45 degrees; and 0 percent where limited to 60 degrees. Code 5261 (for limitation of knee extension) provides a 50 percent rating where limited to 45 degrees; 40 percent where limited to 30 degrees; 30 percent where limited to 20 degrees; 20 percent where limited to 15 degrees; 10 percent where limited to 10 degrees; and 0 percent where limited to 5 degrees. 38 C.F.R. § 4.71a. Codes 5256 and 5262 do not apply in this case, as the pathology required (ankylosis or malunion or nonunion of the tibia and fibula) is not shown. 38 C.F.R. § 4.71a. Normal range of knee motion is 140 degrees of flexion and 0 degrees of extension. 38 C.F.R. § 4.71a, Plate II. In rating musculoskeletal disabilities, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different plains. Inquiry will be direct to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disease. 38 C.F.R. § 4.45. 30 percent is the minimum rating assigned for knee disability following TKA. To warrant an increased rating, the Veteran has to show either chronic residuals of severe motion limitation or weakness (which would warrant a 60 percent rating under Code 5055) or that he has impairment warranting an intermediate level of disability (40 or 50 percent) under any of the analogous diagnostic codes (i.e., Codes 5256, 5257, 5260, 5261, and/or 5262). April 2010 VA examination did not show right knee flexion to be less than 110 degrees (even with limitation due to pain/on use considered). Consequently, a compensable rating under Code 5260 is not warranted. Furthermore, right knee extension was reported as full (to 0 degrees) on April 2010 examination. Consequently, a compensable rating under Code 5261 is not warranted. Additionally, the examination found no evidence of lateral instability or subluxation, so as to warrant a separate rating under Code 5257. The Board notes that the Veteran uses a cane for ambulatory assistance (suggesting instability). However, the April 2010 VA examiner found no evidence of laxity, subluxation or instability on physical examination. The Board also notes that the April 2010 VA examiner found the right lower extremity was 1/4 inch shorter than the left lower extremity. While there is no indication the difference in the extremity length is due to his service-connected right knee disability, the Board notes that such would not warrant a separate compensable rating under Code 5275 (requiring shortening of the lower extremity of 1.25 to 2 inches for a 10 percent rating). Notably, the April 2010 VA examination did find evidence of DJD and, as noted above, less than compensable limitation of motion. Such reflects a 10 percent rating under Codes 5003, 5010 (for arthritis shown on X-ray, with limitation of motion that is less than compensable under the diagnostic codes for limitation of the joint). Combination of a 10 percent rating under Codes 5003, 5010 and noncompensable ratings under Codes 5257, 5260, 5261 (and 5275), results in a combined rating of 10 percent for the Veteran's service-connected right knee disability. See 38 C.F.R. § 4.25. Hence, there is no basis under these criteria for a rating in excess of 30 percent for the Veteran's service-connected right knee disability. In addition, the Veteran's right knee is not ankylosed, and he is not shown to have malunion or nonunion of the tibia or fibula or genu recurvatum; consequently, Codes 5256, 5262, and 5263 do not apply. What remains for consideration is whether the next higher (60 percent) rating under Code 5055 is warranted. As noted above, the April 2010 examination found that flexion was limited to 110 degrees. While the Veteran complained of significant fatigability on April 2010 VA examination, the ligamentous structures were intact, and there was no evidence of laxity of the prosthesis, and no incoordination, subluxation, or instability was demonstrated. The examiner found that there was no additional functional impairment due to pain, weakness, fatigability, incoordination, or flare-up. The examiner concluded that the Veteran's functional fatigue was subjective in nature. Hence, severe limitation of motion or weakness is not shown. None of the findings reported reflect severe painful motion or weakness. Consequently, a 60 percent rating under Code 5055 is not warranted. The Board has also considered whether the record suggests referral for extraschedular consideration is indicated. Here, the objective evidence does not show that the Veteran has any impairment of function beyond what is already being compensated. See 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.45; DeLuca, 8 Vet. App. at 205. As noted above, the April 2010 VA examiner found the Veteran was not additionally limited by pain, fatigue, weakness, or incoordination following repetitive use. The Board notes that there is evidence of mild right quadriceps atropy (no greater than 1/4 inch), and the use of a cane. However, the April 2010 VA examiner specifically found that the Veteran had no loss of joint function with use due to pain, weakness, fatigability, incoordination or flare-ups. Therefore, the schedular criteria are not inadequate, and referral for extraschedular consideration is not necessary. 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). In light of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim. Accordingly, it must be denied. ORDER Entitlement to a rating in excess of 10 percent for unilateral left ear hearing loss is denied. Entitlement to a rating in excess of 30 percent since November 1, 2009, for DJD and exostosis of the right knee, status post TKA, is denied. ____________________________________________ MICHELLE KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs