Citation Nr: 1322594	
Decision Date: 07/16/13    Archive Date: 07/24/13

DOCKET NO.  09-49 800	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to a compensable initial rating for right ear hearing loss. 

2. Entitlement to an increased rating greater than ten percent for a left knee disability. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

H.J. Baucom, Associate Counsel




INTRODUCTION

The Veteran had active service from June 1984 to July 1998.   

This matter comes before the Board of Veterans' Appeals (Board) from a July 2007  rating decision of the Department of Veterans Affairs (VA), Appeals Management Center (AMC) which granted service connection for right ear hearing loss and assigned a noncompensable rating, and from a June 2010 rating decision of the VA Regional Office (RO) in Waco, Texas, which denied an increased rating for the left knee disability. 

The Veteran's virtual VA file has been reviewed. 

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  

In this case, the Veteran had been granted TDIU, however when he resumed working, TDIU was discontinued.  Although the Veteran has reported difficulty hearing in a work environment, and that his job requires hours of standing which sometimes causes pain in his knees, he has not reported that he is unemployable due to his service connected disabilities.  Rather he has reported the opposite, that despite all of his service connected disabilities he able to manage his disabilities and participate in the workforce.  The Board finds that the issue of entitlement to a TDIU is not expressly raised by the Veteran or reasonably raised by the record and Rice is not for application.


FINDINGS OF FACT

1. The Veteran's hearing loss measured Level II in the right ear at the most impaired.

2. The Veteran's left knee disability been productive of normal range of motion from 0 to 140 degrees flexion and 0 degrees extension.


CONCLUSIONS OF LAW

1. The criteria for the assignment of an initial compensable rating for right ear hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.383, 4.85, 4.86, Diagnostic Code 6100 (2012).

2. The criteria for an increased rating in excess of 10 percent for the left knee disability have not been met.  38 U.S.C.A. §§ 1155, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5256-5263 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

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."  Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  

If the evidence for and against a claim is in equipoise, the claim will be granted.  A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 4.3.  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.  

Hearing Loss

The noncompensable evaluation for right ear hearing loss was assigned under Diagnostic Code 6100.  

Under the rating criteria, the basic method of rating hearing loss involves audiological test results of organic impairment of hearing acuity, as measured by the results of controlled speech discrimination testing (Maryland CNC) together with the average decibel threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 hertz.  These test results are entered into a table of the rating schedule (Table VI) to determine the auditory acuity level of each ear (ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness), and these auditory acuity levels are entered into another table (Table VII) of the rating schedule to determine the percentage disability rating.  If impaired hearing is service -connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. §  3.383 of this chapter.  38 C.F.R. § 4.85. 

The Veteran contends that his right ear hearing loss is worse than the noncompensable rating assigned and that the functional impact of his hearing loss on his ability to function, particularly at work, should be considered in the rating assigned.  Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing.  See Lendenman v. Principi, 3 Vet. App. 345 (1992); 38 C.F.R. § 4.85.  There is no functional impairment component for rating hearing loss. 

At a March 2006 VA audiology evaluation, pure tone thresholds, in decibels, were as follows:


HERTZ
CNC
Level

1000
2000
3000
4000
Avg


RIGHT
40
55
55
50
50
92%
I

At a November 2009 VA audiology evaluation, pure tone thresholds, in decibels, were as follows:


HERTZ
CNC
Level

1000
2000
3000
4000
Avg


RIGHT
50
55
55
55
54
84%
II


Under Table VI the VA examinations result in Level I hearing acuity for the right ear.  As the left ear is not service connected, Level I is used for the left ear, which results in a noncompensable rating under Table VII. 38 C.F.R. §§ 3.383, 4.85(h).  

The provisions of 38 C.F.R. § 4.86 pertaining to exceptional patterns of hearing loss are not for application as the requirements have not been met. 

The Veteran is competent to report his symptomatology, to include difficulty hearing and talking in a loud voice to hear himself talk.  Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  He has submitted a note from his neighbor reporting the TV being on too loudly, to demonstrate his difficulty hearing.  However his opinion that the rating should be compensable is outweighed by the audiological examinations conducted by multiple medical professionals, the results of which reveal a noncompensable rating for right ear hearing loss.  

The audiometric test results do not provide a basis for a compensable rating for right ear hearing loss at any time.   

The preponderance of the evidence is against the claim; there is no doubt to be resolved; and a compensable rating for bilateral hearing loss is not warranted.

Left knee disability

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, premature or excess fatigability, or incoordination is demonstrated, assuming these factors are not already contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  

Functional loss due to pain is rated at the same level as functional loss where motion is impeded.  Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in.  See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995).  The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or reasonably by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011).

It is important to note that although pain may cause functional loss, pain itself does not constitute functional loss.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (emphasis added).  Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," to constitute functional loss.  Id.; see 38 C.F.R. § 4.40.

Separate disabilities arising from a single disease entity are to be rated separately.  See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994).  However, the evaluation of the same disability under various diagnoses is to be avoided, as this would violate VA's anti-pyramiding regulation.  38 C.F.R. § 4.14; Fanning v. Brown, 4 Vet. App. 225 (1993).  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, 594 (1991).  The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology.  Any change in diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

While the Veteran is competent to offer evidence as to the visible symptoms or manifestations of a disease or disability, his belief as to its current severity under pertinent rating criteria or the nature of the service-connected pathology is not probative evidence.  Layno v. Brown, 6 Vet. App. at 470 (1994); Grottveit v. Brown, 5 Vet. App. at 92-93 (1993).

In assessing the appropriateness of the rating for the left knee disability, the Board has reviewed all of the evidence in the Veteran's claims file and has an obligation to provide an adequate statement of reasons or bases supporting its decision.  See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, however, it need not discuss each piece of evidence, certainly not in exhaustive detail.  See id.  The analysis below therefore focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, concerning this claim.  The Veteran must not assume the Board has overlooked pieces of evidence that are not explicitly discussed in this decision.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The law requires only that the Board address its reasons for rejecting evidence favorable to him.  Id.

The left knee disability is currently assigned a ten percent rating under Diagnostic Code (DC) 5299-5260.  The code 5299 is used to describe when a disability is rated as similar to a diagnostic code.  In this case 5299-5260 is for a disability similar to DC 5260. 

Diagnostic Codes 5260 and 5261 govern the rating criteria with regard to limitation of motion of the knee.  Under DC 5260, limitation of flexion of the knee warrants a zero percent rating when flexion is limited to 60 degrees; a 10 percent rating when limited to 45 degrees; a 20 percent rating when limited to 30 degrees; and a 30 percent rating when limited to 15 degrees.  Under DC 5261, limitation of extension of the leg warrants a zero percent rating when extension is limited to 5 degrees; a 10 percent when extension is limited to 10 degrees; 20 percent when limited to 15 degrees; 30 percent when limited to 20 degrees; 40 percent when limited to 30 degrees; and 50 percent when limited to 45 degrees. 

The regulations define normal range of motion for the leg as zero degrees of extension and 140 degrees of flexion.  See 38 C.F.R. § 4.71, Plate I.

Separate ratings may be assigned for limitation of flexion and limitation of extension, under Diagnostic Code 5260 and Diagnostic Code 5261, for disability of the same joint.  VAOPGCPREC 9-2004 (September 17, 2004).  

In October 2009 a VA examination was conducted.  The Veteran reported not using a knee brace and that he takes pain medication.  He denied any interference with his daily activities.  He denied any locking, giving away, swelling or dislocation.  Physical examination found no varus or valgus deformity, and negative for anterior drawer sign, Lachman's sign, and McMurray sign. Crepitation was noted on range of motion but no pain or tenderness.  Range of motion testing found forward flexion to 140 degrees and extension to 0 degrees with no additional loss of motion after repetitive testing, providing highly probative evidence against this claim.  

A MRI of the left knee diagnosed medial meniscal tear (bucket tear), lateral meniscal tear, and anterior cruciate ligament (ACL) tear. 

While the Veteran appears to cite to the MRI result as a basis to grant a higher evaluation, it is important for the Veteran to understand that it is his function that is the key issue, not the results of studies.  Simply stated, the fact that the Veteran has a left knee disability is not in dispute, the critical question is how this disability impacts his ability to move and function of a day to day basis.  In this regard, the range of motion testing and indications of no additional loss of motion after repetitive testing is far more probative then any finding indicated within an MRI, which only shows what is clearly know to the Board: the Veteran has a left knee problem. 

At a November 2010 VA examination the Veteran reported a history of left knee pain, that he took pain medication and that he had started using a brace in March 2010.  When asked about subjective symptoms, the Veteran denied any deformity, giving way, instability, pain, stiffness, weakness, incoordination, decreased speed of the joint, dislocation or subluxation, locking episodes, effusion, inflammation or flare ups.  Upon physical examination crepitation was noted but there was no mass behind the knee, no clicks or snaps, no grinding, no instability, no patella or meniscus abnormality, abnormal tendons or bursae nor any other knee abnormalities.  Range of motion testing found flexion to 140 degrees and extension to 0 degrees.  There was no evidence of pain on motion, and no additional loss of motion after repetitive testing, providing highly probative evidence against the Veteran's claim.

The competent medical evidence demonstrates that the Veteran's left knee has normal range of motion, defined as zero degrees of extension and 140 degrees of flexion, therefore a higher rating under DC 5260 or DC 5261 is not warranted. 

The Veteran contends that he should be separately service connected for his meniscus tear and ACL tear in the left knee based on the October 2009 MRI.  The objective evidence of record demonstrates two meniscus tears (dislocated semilunar cartilage).  However, in order for a separate rating to be assigned under DC 5258 there must be "dislocated semilunar cartilage with locking, pain and effusion."  (emphasis added)  Although there are subjective intermittent reports of "popping" and pain, the competent medical evidence of record demonstrates that there is no locking or effusion of the left knee therefore a separate rating under DC 5258 is not warranted.  As there has been no removal of semilunar cartilage (meniscus), a separate rating under DC 5259 is not warranted. 

A meniscus tear and ACL tear are not automatically separately service connected from the service connected left knee disability.  The rating code provides for additional separate compensation for the effects, if any, of the meniscus tear, as described under DC 5258 for dislocated semilunar cartilage with locking, pain and effusion, and for removal of semilunar cartilage under DC 5259.  If there was subluxation or instability of the left knee, a separate rating could be assigned under DC 5257.  However as the Veteran has denied any subjective complaints of giving away or over extension of the left knee, and there is no objective evidence of subluxation or instability, the criteria for a separate rating under DC 5257 have not been met.  The post-service medical record, as a whole, fully supports this finding.       

Consideration has also been given to other potentially applicable diagnostic codes.  
However, as there is no evidence of ankylosis; impairment of the tibia and fibula; or genu recurvatum, Diagnostic Codes 5256, 5262, 5263 are not for consideration.  A compensable rating under DC 5003 is assigned when there is limitation of motion but it is noncompensable rating under the limitation of motion codes, 5260 and 5261.  As a compensable rating is already assigned under 5299-5260, DC 5003 does not apply. 

The Veteran contends that a higher rating is warranted for his left knee disability, including separate ratings for his left knee meniscus and ACL tears.  
  
The Board acknowledges that the Veteran is competent to report symptoms of his left knee disability such as pain.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994).  Additionally, he is credible in his reports of symptoms and their effect on his activities.  In this regard, it is important for the Veteran to understand that if the Board did not consider his complaints there would be little if any basis for the current evaluation, let alone a higher evaluation.  Further, the Veteran is not competent to identify a specific level of disability of his left knee according to the appropriate diagnostic code.  Such competent evidence concerning the nature and extent of the Veteran's service-connected left knee disability has been provided by VA medical professionals who have examined him, providing evidence against such a finding that is of high probative value.  The medical findings directly address the criteria under which this disability is evaluated.  The Board finds these records to be the only competent and probative evidence of record, and therefore is accorded greater weight than the Veteran's subjective complaints of increased symptomatology.  See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991).  

The preponderance of the evidence is against the claim for a rating in excess of 10 percent for the left knee disability.  There is no doubt to be resolved; and the assignment of a rating greater than 10 percent for the left knee disability is not warranted.  

Extraschedular

Extraschedular consideration involves a three step analysis.  Thun v. Peake, 22 Vet. App. 111 (2008).

First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology.  Id. At 115.  If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops.  Id.

If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization.  Id. At 116.

If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating.  Id.

The schedular evaluation in this case is adequate.  Ratings in excess of that assigned are provided for certain manifestations of the service-connected right ear hearing loss and left knee disability but the competent evidence reflects that those symptoms are not present in this case. 

The symptoms associated with the Veteran's right ear hearing loss (i.e., difficulty hearing) and left knee disability (i.e., pain) are not shown to cause any impairment that is not already contemplated by the relevant diagnostic codes, as cited above, and the Board finds that the rating criteria reasonably contemplates these disabilities.  

Notice and Assistance

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)(2012).  

Letters dated June 2007 and February 2010 satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  These letters notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  

The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c) (2).  

A VA examinations were conducted in March 2006, October 2009, November 2009 and November 2010; the Veteran has not argued that these examinations were inadequate for rating purposes.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  The examinations were adequate as the examiners evaluated the Veteran's current disability level and provided findings to allow for proper application of the rating criteria.

There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

ORDER

The appeal is denied. 



____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs