Citation Nr: 1601388 Decision Date: 01/13/16 Archive Date: 01/21/16 DOCKET NO. 14-20 589 ) ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for right ear hearing loss. 2. Entitlement to service connection for right ear hearing loss. 3. Whether new and material evidence has been received to reopen the claim of service connection for tinnitus. 4. Entitlement to service connection for tinnitus. 5. Entitlement to an evaluation in excess of 10 percent for residuals of a meniscectomy in the right knee prior to June 23, 2014. 6. Entitlement to an evaluation in excess of 30 percent for residuals of a meniscectomy in the right knee from August 1, 2015. 7. Entitlement to a compensable rating for degenerative joint disease (traumatic arthritis) in the right knee from July 18, 2001 to June 23, 2014. 8. Entitlement to secondary service connection for degenerative joint disease of the back. 9. Entitlement to secondary service connection for a sleeping disorder. REPRESENTATION Appellant represented by: John Worman, Esq. ATTORNEY FOR THE BOARD C. Ryan, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1975 to November 1979. This matter comes to the Board of Veterans' Appeals (Board) from July 2012 and November 2014 rating decisions of the Department of Veterans Affairs (VA) Regional office (RO) in St. Petersburg, Florida. The issues of entitlement to service connection for right ear hearing loss, as well as entitlement to an increased rating for right knee disability from August 1, 2015, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an October 2001 rating decision, the RO denied entitlement to service connection for right ear hearing loss, and the Veteran did not appeal this decision. 2. Evidence received since the October 2001 rating decision relates to the basis for the prior denial of service connection for right ear hearing loss. 3. In an October 2001 rating decision, the RO denied entitlement to service connection for tinnitus, and the Veteran did not appeal this decision. 4. Evidence received since the October 2001 rating decision relates to the basis for the prior denial of service connection for tinnitus. 5. Resolving all doubt in the Veteran's favor, the currently demonstrated tinnitus was caused by in-service exposure to excessive and harmful noise in connection with the Veteran's service. 6. Resolving all doubt in the Veteran's favor, the currently demonstrated degenerative joint disease of the back was caused by an altered gait due to his service-connected knee problems. 7. Prior to June 23, 2014, the residuals of a meniscectomy in the right knee are productive of frequent episodes of locking, pain, and effusion into the joint. 8. Prior to June 23, 2014, residuals of a meniscectomy in the right knee are productive of no more than slight instability; moderate or severe recurrent subluxation or lateral instability has not been shown. 9. Prior to June 23, 2014, right knee degenerative joint disease (traumatic arthritis) is productive of pain and functional impairment; flexion is better than 60 degrees, and extension is better than 10 degrees. 10. The Veteran does not suffer from a sleep disorder. CONCLUSIONS OF LAW 1. The October 2001 rating decision that denied entitlement to service connection for right ear hearing loss is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2015). 2. Evidence received since the October 2001 rating decision with regard to right ear hearing loss is new and material. Thus, this new evidence warrants reopening the claim of entitlement to service connection for right ear hearing loss. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. The October 2001 rating decision that denied entitlement to service connection for tinnitus is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2015). 4. Evidence received since the October 2001 rating decision with regard to tinnitus is new and material. Thus, this new evidence warrants reopening the claim of entitlement to service connection for tinnitus. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 5. The criteria for the establishment of service connection for tinnitus are met. 38 U.S.C.A. §§ 1101, 1110, 1134(a), 5107 (West 2014); 38 C.F.R. § 3.303 (2015). 6. The criteria for the establishment of service connection for degenerative joint disease of the back are met. 38 U.S.C.A. §§ 1101, 1110, 1134(a), 5107 (West 2014); 38 C.F.R. § 3.310 (2015). 7. Prior to June 23, 2014, residuals of a right knee meniscectomy were 20 percent disabling on the basis of locking, pain, and effusion into the joint. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code 5258 (2015). 8. Prior to June 23, 2014, residuals of a right knee meniscectomy were no more than 10 percent disabling on the basis of slight lateral instability. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code 5257 (2015). 9. Prior to June 23, 2014, right knee degenerative joint disease (traumatic arthritis) was 10 percent disabling on the basis of limitation of motion. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code 5261-5010 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. § 3.159 (2015). For increased rating claims, the VCAA requires generic notice of the type of evidence needed to substantiate the claim, i.e., evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In this case, such a VCAA-compliant notice letter was sent to the Veteran in October 2011, and the RO has informed the Veteran of all relevant readjudications. For service connection claims, VA is required to notify the claimant and his 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). Here, with respect to the claim for a sleep disorder, the duty to notify was satisfied by an October 2011 letter sent to the Veteran prior to adjudication by the RO and by a July 2012 letter notifying the Veteran of the RO's rating decisions. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claims, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on a claim. 38 C.F.R. § 3.159(c)(4). In this case, VA fulfilled its duty to assist by obtaining all identified and available evidence needed to substantiate the claims herein decided. Service treatment records and post-service VA and private treatment records have been obtained, and the Veteran has been afforded VA medical examinations in connection with his right knee. The examination reports show that examiners performed clinical evaluations, including range of motion testing, elicited a detailed history from the Veteran, and provided summaries of the Veteran's functional impairment. The Board finds that these examinations were adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or opinion, it must ensure that the examination or opinion is adequate). The Veteran has not asserted that there is any outstanding evidence relating to the issues on appeal. In addition, VA afforded the Veteran a medical examination in connection with the claim for a sleep disorder in January 2012. As evidenced by the examination report, the examiner reviewed the claims file, performed the appropriate testing, recorded the results, and provided factual findings and opinions regarding the nature and etiology of the Veteran's sleep disorder. The Board finds that the examination is adequate, and additional examinations are not required. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (explaining that medical examinations must be adequate); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, (2008) (explaining how to determine the adequacy of a VA medical examination). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements as to the claim decided herein. There is no additional evidence which needs to be obtained. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Reopening Generally, a claim that has been denied in a final unappealed decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). 38 U.S.C.A. § 5108 presents an exception to this rule, providing that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. To comply with the directive of 38 C.F.R. § 3.156(b) that new and material evidence be treated as having been filed in connection with the pending claim, VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim, regardless of whether the relevant submission might otherwise support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1369 (Fed. Cir. 2011). New and material evidence is evidence not previously submitted to agency decision makers that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low". See Shade v. Shinseki, 24 Vet. Ap. 110, 117 (2010). In October 2001, the Veteran's claims for entitlement to service connection for right ear hearing loss and tinnitus were denied by the St. Petersburg, Florida RO, on grounds that there was no evidence of hearing loss or tinnitus in service and no link between service and current disability. That decision is final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. The Veteran submitted applications to reopen the issues of entitlement to service connection for right ear hearing loss and tinnitus in October 2011. He submitted additional evidence relevant to his claims, and the RO reopened the claims in its July 2012 rating decision. As this is a threshold jurisdictional question for the Board, the Board must decide the matter on appeal, regardless of how the RO ruled on the question of reopening. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). The evidence received since the October 2001 rating decision includes evidence that is new and material to the claim. See 38 C.F.R. § 3.156. For example, the Veteran submitted statements reflecting that his right ear hearing loss had worsened, and a January 2012 VA audiological evaluation revealed significant right ear hearing loss and reports of ringing in the ears. This new evidence clearly addresses the reasons for the previous denial. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claims of entitlement to service connection for right ear hearing loss and tinnitus are reopened. Merits of the Claim for Tinnitus The Veteran contends that he is entitled to service connection for tinnitus. For the foregoing reasons, the Board finds that service connection is warranted. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease first diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In January 2012, the Veteran underwent an audiological examination in which he reported experiencing bilateral ringing in the ears, which the examiner indicated was tinnitus. The examiner opined that the Veteran's tinnitus was less likely than not caused by his military noise exposure, given that his separation examination was negative for tinnitus. The Veteran nonetheless contends that his long-standing tinnitus was caused by his exposure to firearms while in service. The Court has found a lay person competent to identify tinnitus, as it is a disorder that can be identified based on lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). In this instance, the Veteran is competent and credible to report the circumstances of his service, and there is no evidence which contradicts his report. Notably, his DD-214 reflects that he served as an infantryman in the Army for 3 years and 7 months, which is consistent with exposure to weapons fire. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 C.F.R. § 3.102; 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule applies, and service connection for tinnitus is granted. Degenerative Joint Disease of the Back (back disability) The Veteran contends he is entitled to service connection for a back disability, secondary to his service-connected right knee condition. In January 2012, the Veteran's private physician diagnosed the Veteran with spondylotic lower back pain and determined the Veteran's back pain was likely caused by his "chronic gait abnormality caused by his knee problems." In June 2012, the Veteran underwent a Compensation and Pension examination for his back condition in which he was diagnosed with degenerative joint disease. The examiner determined the joint disease was less likely as not caused by, or a result of, or aggravated by the Veteran's service-connected right knee condition because there was no objective scientific basis for the private physician's January 2012 impression that the Veteran's knee condition caused his back condition. The examiner reiterated that, in his opinion, there was no sound scientific cause/effect relationship between arthritic changes in the spine and right knee conditions, based on the medical literature, history, and the examiner's personal experience. In this case, the VA examiner failed to address the private physician's actual contention-that the Veteran's abnormal gait, due to his service-connected knee disability, caused the Veteran's back pain. Instead, the examiner simply provided a conclusory statement that there was no sound cause and effect relationship between knee disabilities and back pain without providing any analysis to the Veteran's abnormal gait and the relationship between abnormal gait and back pain. Thus, the Board finds the VA opinion insufficient to support a final judgment. Moreover, the Board notes that the medical literature is replete with the effects that altered gait can have upon the development or aggravation of back problems. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 C.F.R. § 3.102; 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule applies, and service connection for a back disability is granted. Evaluation of Right Knee Disability Prior to June 23, 2014 The Veteran contends that he is entitled to an increased rating in his right knee for the period prior to June 23, 2014. By way of background, the Board notes that the Veteran underwent a right knee replacement in June 2014, and consequently was awarded a 100 percent rating from June 23, 2014 to August 1, 2015. As this represents the highest available schedular rating, the Board will not consider that period. From August 1, 2015, he is in receipt of a 30 percent rating under the Diagnostic Code dealing with residuals of knee replacement surgery. For reasons discussed below, the claim of entitlement to an evaluation in excess of 30 percent from August 1, 2015 is addressed in the Remand section. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran's symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent to which the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when symptoms are most prevalent ("flare-ups") due to the extent of any pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. During the period under consideration, the Veteran's right knee disability is rated under two different Diagnostic Codes-Diagnostic Code 5257, for instability post-meniscectomy; and Diagnostic Code 5261-5010, for limitation of motion due to degenerative joint disease, which is also characterized as traumatic arthritis. See 38 C.F.R. § 4.71(a). Under Diagnostic Code 5257, knee impairment with recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Notably, VAOPGCPREC 23-97 provides that a Veteran may be assigned separate ratings for arthritis with limitation of motion under Diagnostic Codes 5260 or 5261 and for instability under Diagnostic Code 5257. See VAOPGCPREC 23-97 (July 1, 1997). In VAOPGCPREC 9-98, VA General Counsel held that if a Veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be assigned based on painful motion under 38 C.F.R. § 4.59. When there is a diagnosis of arthritis, as in this case, separate disability ratings may be assigned based on limitation of motion of the affected joint. Diagnostic Code 5010 provides that traumatic arthritis is to be evaluated as degenerative arthritis pursuant to Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative arthritis substantiated by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. When, however, the limitation of motion is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In addition, under Diagnostic Code 5258, dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the knee joint, warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5260, which provides ratings for limitation of the knee, a noncompensable evaluation is warranted when knee flexion is limited to 60 degrees; a 10 percent evaluation is warranted when flexion is limited to 45 degrees; a 20 percent evaluation is warranted when flexion is limited to 30 degrees; and a 30 percent evaluation is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable evaluation is warranted when knee extension is limited to 5 degrees; a 10 percent evaluation is warranted when extension is limited to 10 degrees; and a 20 percent evaluation is warranted when extension is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal range of motion of the knee is 0 to 140 degrees of extension to flexion. 38 C.F.R. § 4.71a, Plate II. The VA General Counsel has issued a precedential opinion holding that "separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261, where a Veteran has both limitation of flexion and limitation of extension of the same leg; limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. See VAOPGCPREC 9-2004 (September 17, 2004). By way of history, the Veteran was awarded service connection for his right knee in November 1979, stemming from an in-service medial meniscectomy. As noted, the RO initially assigned a 10 percent rating under Diagnostic Code 5257. In July 2001, the RO awarded the Veteran a noncompensable rating for early degenerative joint disease in his right knee under Diagnostic Code 5261-5010. In January 2011, the Veteran was evaluated by a private physician. He reported gradually increasing sharp pain in his right knee and complained of crepitus, decreased mobility, instability, limping, locking, night pain, numbness, popping, swelling, tenderness, weakness, and pain after inactivity. The Veteran reported that the pain worsened with bending, climbing, lifting, movement, walking, standing, jumping, kneeling, pivoting, running, standing from a seated position, squatting, twisting, weight bearing, work activities, and exercise, and daily activities. The physician diagnosed the Veteran with severe bone to bone osteoarthritis and patellofemoral chondromalacia. In October 2011, the Veteran submitted the present claim for an increased rating. In November 2011, he submitted a note from his treating physician at the VA. The physician documented the Veteran's degenerative joint and disc disease in his knees and spine, and recommended that his employer assign exclusively driven-instead of walked-postal routes to the Veteran. (The Veteran is a postal worker.) In January 2012, the Veteran underwent a Compensation and Pension examination for his right knee, in which he was diagnosed with residuals of a right knee meniscectomy. The Veteran reported right knee pain which worsened with prolonged standing, walking, heavy lifting, and heavy carrying. On range of motion testing, right knee flexion ended at 100 degrees, and extension ended at 5 degrees. The examiner noted that the Veteran had frequent episodes of joint pain associated with his meniscectomy, as well as residual signs from the meniscectomy such as pain with overuse, heavy lifting, carrying, prolonged walking, standing, and climbing stairs and ladders. The examiner determined the Veteran suffered from functional loss and impairment in his knee and lower leg. Factors such as less movement than normal; weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing contributed to the Veteran's functional loss in his right knee. The examiner also noted that the Veteran suffered from tenderness or pain upon palpation in his right joint line. No instability was noted, however, and there was no history of patellar subluxation or dislocation. In June 2014, the Veteran received a complete right knee replacement. With regard to the Veteran's current 10 percent rating under Diagnostic Code 5257, the Board reiterates that under that Diagnostic Code, a 20 percent rating is warranted for "moderate" instability, and a 30 percent rating is warranted for "severe" instability. In this case, the Veteran's January 2012 Compensation and Pension examination clearly reflects that he experiences no recurrent subluxation or lateral instability. Furthermore, although the Veteran has reported some instability during the appeal period, there is no remaining evidence in the record demonstrating instability or subluxation to a "moderate" degree. Thus, the Board finds a higher, 20 percent rating is not warranted under Diagnostic Code 5257. See 38 C.F.R. § 4.71(a). The Veteran's January 2012 and January 2011 examinations, however, clearly demonstrates the Veteran suffered from several symptoms associated with his medial-meniscectomy, such as pain, effusion, and impairment that is functionally equivalent to joint "locking." To recount, the VA examiner determined the Veteran suffered from frequent episodes of pain and impairment stemming from his meniscectomy, and the January 2011 examiner likewise determined the Veteran suffered from popping and effusion in the joint. Thus, the Board finds the Veteran is entitled to a separate 20 percent rating under Diagnostic Code 5258 for dislocation of the semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. See id. As noted above, the Veteran is also in receipt of a noncompensable evaluation for degenerative joint disease (i.e., traumatic arthritis) in his right knee. The regulations, however, clearly state that if a Veteran is diagnosed with traumatic arthritis, but the degree limitation of motion would otherwise be noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent is applied for each major joint affected by limitation of motion. See 38 C.F.R. § 4.71(a), Diagnostic Code 5003. In the January 2012 VA examination, the Veteran's right knee flexion ended at 100 degrees, and his extension ended at 5 degrees. To receive a compensable rating for limitation of flexion and extension under Diagnostic Codes 5260 and 5261, respectively, flexion must be limited to 45 degrees and extension must be limited to 10 degrees. Thus, the Veteran's limitation of flexion and extension are noncompensable. Nevertheless, the evidence clearly demonstrates arthritis with corresponding functional limitation of motion. Accordingly, the Board finds the Veteran is entitled to a 10 percent rating under Diagnostic Code 5261-5010 for arthritis based on limitation of motion. See 38 C.F.R. § 4.71(a), Diagnostic Code 5003. Extraschedular Consideration The Board has also considered whether the Veteran's right knee presents an exceptional or unusual disability picture so as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2015); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In this case, there are no exceptional or unusual factors with regard to the Veteran's right knee. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet.App. 57, 60 (1993) (holding that the "rating schedule will apply unless there are 'exceptional or unusual factors' which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and there is no need to provide for consideration of greater disability and symptoms than currently shown by the evidence. There is no suggestion that the Veteran has required periods of hospitalization or has incurred significant interference with employment due to his right knee, as his employer granted the Veteran accommodations to support his employment. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. Sleep Disorder The Veteran contends that he is entitled to secondary service connection for a sleep disorder caused by his right knee. For the following reasons, the Board finds that service connection should be denied. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Secondary service connection may be granted where the evidence shows that a chronic disability has been caused or aggravated by an already service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (holding that 38 C.F.R. § 3.310(a) authorizes a grant of service connection not only for disability caused by a service-connected disability, but for the extent of additional disability resulting from aggravation of a non-service-connected disability by a service-connected disability). The Board notes that 38 C.F.R. § 3.310, the regulation which governs claims for secondary service connection, has been amended recently. See 71 Fed. Reg. 52, 744 (Sep. 7, 2007) (to be codified at 38 C.F.R. § 3.310(b). The intended effect of the amendment is to conform VA regulations to the Allen decision. In determining entitlement to secondary service connection, the Veteran receives the benefit of the doubt so that the Veteran prevails whenever the evidence in support of the claim is at least in equipoise. 38 C.F.R. § 3.102; 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). A review of the facts reveals the following: In February 2011, the Veteran submitted a statement explaining that the pain in his knee prevented him from sleeping. He said, "I experience stabbing pain in my knee constantly. While sleeping, pain in my knee awakens me. From the constant pain I am unable to sleep deeply for long periods of time. I'm unable to sleep in my bed with my wife because of this. My discomfort results in my tossing and turning trying to get a comfortable position ... I feel lucky to get two hours of straight sleep in a night." In June 2012, the Veteran underwent a Compensation and Pension examination during which he reported a history of sleep apnea many years ago, which resolved after he received surgery for a deviated septum/enlarged soft palate. The Veteran explained to the examiner that his back and right knee pain caused him to wake up after sleeping in one position for an extended period of time. The examiner determined that there was no objective evidence of a current sleep disorder, either due to the Veteran's medical history or a medical assessment. The examiner stated "Veteran complains that back pain causes him to wake up after sleeping in one position for a while. That is not a sleep disorder condition." The Board notes that the Veteran's assessment of his condition and the examiner's assessment of the Veteran's condition coincide; both agree the Veteran's sleep condition consists of the Veteran waking up throughout the night due to pain in his knee. Thus, the Board finds the examiner's determination that the Veteran does not suffer from an actual sleeping condition probative, as there are no discrepancies between the Veteran and the examiner about the Veteran's symptoms or discomfort. A careful review of the Veteran's medical records finds that the Veteran does not suffer from a sleep disorder. Although the Veteran complained to his physicians from time to time about the inability to sleep due to pain, he was never diagnosed with a sleeping disorder, nor does the Veteran claim to suffer from a sleeping disorder. Thus, as the Board finds that the Veteran does not suffer from a current sleep disorder disability, further analysis is unnecessary. The Board finds that the Veteran is not entitled to secondary service connection for a sleep disorder. The Board has considered the benefit of the doubt doctrine, but as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. At 55-57. ORDER The application to reopen the claim of service connection for entitlement to right ear hearing loss and tinnitus is granted. The claim for entitlement to service connection for tinnitus is granted. Service connection for degenerative joint disease of the back is granted. Prior to June 23, 2014, entitlement to an evaluation in excess of 10 percent for right knee disability on the basis of subluxation or lateral instability is denied. Prior to June 23, 2014, entitlement to a separate 20 percent evaluation for dislocation of the semilunar cartilage of the right knee is granted. Prior to June 23, 2014, entitlement to a 10 percent evaluation for right knee arthritis on the basis of limitation of motion is granted. Service connection for a sleep disorder is denied. REMAND Right Ear Hearing Loss The Veteran contends that his right ear hearing loss was caused by his exposure to firearms in service. For the following reasons, the Board finds that a remand is warranted. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 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. As stated previously, to receive entitlement for service connection for hearing loss, the Veteran must also have experienced an-service incurrence or aggravation of a disease or injury. 38 38 C.F.R. § 3.303(a). Even if audiometric testing revealed that a Veteran's hearing loss was within normal limits at separation from service, 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability if there is sufficient evidence to demonstrate a relationship between the Veteran's service and a current disability. Hensley v. Brown, 5 Vet. App. 155, 157 (1993); 38 C.F.R. § 3.303(d). In this case, when the Veteran exited service, he scored the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 25 10 Thus, at the time of separation, the Veteran did not demonstrate a right ear hearing loss disability, for VA purposes. 38 C.F.R. § 3.385. During a January 2012 Compensation and Pension examination, he scored the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 10 60 75 This audiological examination demonstrates that the Veteran suffers from hearing loss in his right ear. The examiner, however, determined that it was less likely than not that the Veteran's hearing loss was aggravated by his time in service, as there was no objective evidence in the service treatment records of hearing loss at the Veteran's exit examination. The examiner's conclusion, however, does not discuss whether it is more or less likely that the Veteran's right ear hearing loss was caused by in-service noise exposure. Accordingly, this claim must be remanded for an additional examination. Evaluation of Right Knee Disability From August 1, 2015 The Veteran contends he is entitled to an increased rating in his right knee from August 1, 2015, following the expiration of his 100 percent rating following total right knee replacement surgery. For the following reasons, the Board determines a remand is warranted to obtain a more up-to-date examination. In October 2011, the Veteran submitted the present claim for an increased evaluation in his right knee. He subsequently underwent a Compensation and Pension examination in January 2012, assessing the knee. In June 2014, however, the Veteran received a complete right knee replacement. Since the knee replacement, the Veteran has not received a Compensation and Pension examination. To properly assess the Veteran's claim for an increased rating from August 1, 2015, the Board requires an up-to-date medical assessment of the Veteran's right knee, post arthroplasty. Accordingly, a remand is warranted. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an audiological examination with an ENT physician to determine the nature and etiology of the Veteran's right ear hearing loss. The ENT should also determine whether it is as likely as not (50 percent probability or greater) that the hearing loss is related to the Veteran's time in service. In making these determinations, the examiner should particularly consider the following: a. The Veteran's statement that his hearing loss stems from his exposure to loud firearms; and b. the recent research discussing the possibility of delayed onset hearing loss, including studies by Dr. Sharon Kujawa. 2. Schedule the Veteran for an increased rating examination with an appropriate examiner to determine the nature and severity of the Veteran's right knee condition, to include an assessment of the Veteran's flexion, extension, pain, and functional impairment. 3. Readjudicate the claims. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs