Citation Nr: 1619620	
Decision Date: 05/16/16    Archive Date: 05/27/16

DOCKET NO.  10-03 130	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to a schedular rating in excess of 10 percent for traumatic left knee arthritis prior to October 6, 2010.

2.  Entitlement to a schedular rating in excess of 30 percent for status post left knee replacement after December 1, 2011.

3.  Entitlement to a compensable rating for sinusitis.

4.  Entitlement to a compensable schedular rating for hearing loss.

5.  Entitlement to service connection for hypertension.

6.  Entitlement to service connection for diabetes mellitus.

7.  Entitlement to service connection for a right knee disability, to include as secondary to service-connected disability.

8.  Entitlement to service connection for an ulcer, to include as secondary to the service-connected psychiatric disorder.

9.  Entitlement to an extraschedular rating.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Joshua Castillo, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1965 to May 1990.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2009 rating decision of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA).  Jurisdiction of the appeal was subsequently transferred to the Oakland, California, RO.

In February 2012, the RO increased the disability rating for the left knee disability to 100 percent, effective October 6, 2010, and 30 percent, effective December 1, 2011.  As these increases did not satisfy the appeal in full, the issue remains on appeal.  See AB v. Brown, 6 Vet. App. 35 (1993).

In June 2014, the RO issued a rating decision granting service connection for chronic obstructive pulmonary disease, which had previously been on appeal after being denied by the RO's March 2009 rating decision.  In October 2014, the RO issued a rating decision granting service connection for bilateral shoulder and arm disabilities, which had previously been on appeal after being denied by the RO's March 2009 rating decision.  As the Veteran has not appealed either the evaluation or effective date assigned to these disabilities, these matters are not before the Board.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).
 
In January 2010, the Veteran requested a hearing before a Veterans Law Judge at his local VA office, but in May 2014, he withdrew his hearing request.

The December 2014 claim and May 2015 VA examination reports raise the issue of whether the Veteran is unemployable due, in part, to service-connected disabilities.  In an unappealed June 2015 rating decision, the RO denied entitlement to total disability rating based on individual unemployability (TDIU).  As the Veteran has not reasserted entitlement to TDIU, this issue is not on appeal.

In March 2016, the Veteran's representative waived RO consideration of evidence added to the record since the last adjudication.

The issue of entitlement to an extraschedular rating is bifurcated and deferred until the issue of entitlement to an increased rating for sinusitis is adjudicated.

The issues of entitlement to an increased rating for sinusitis; service connection for hypertension, diabetes mellitus, and a right knee disability; and an extraschedular rating are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Prior to October 6, 2010, traumatic left knee arthritis was manifested by painful motion with limitation of flexion at most to 130 degrees and extension to zero degrees, even considering painful motion and other factors, and no more than mild instability; the evidence showed no ankylosis, subluxation or instability, limitation of extension, impairment of the tibia and fibula, or genu recurvatum.

2.  From December 1, 2011, the Veteran's status post total knee replacement has not been manifested, or more nearly approximated, severe painful motion or weakness.

3.  Hearing loss is productive of no more than Level II hearing acuity in the right ear and Level III hearing acuity in the left ear.

4.  Peptic ulcer disease is proximately due to or the result of the Veteran's service-connected psychiatric disorder.


CONCLUSIONS OF LAW

1.  Prior to October 6, 2010, the criteria for a schedular rating in excess of 10 percent for left knee arthritis under Diagnostic Code 5257 have not been met, but the criteria for a separate 10 percent rating under Diagnostic Code 5010 have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5256-5263 (2015).

2.  From December 1, 2011, the criteria for a schedular rating in excess of 30 percent for status post total left knee replacement have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5055, 5256, 5261, 5262 (2015).

3.  The criteria for a compensable schedular rating for a hearing loss disability have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2015).

4.  The criteria for service connection for peptic ulcer disease have been met.  38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. § 3.310 (2015).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has a duty to provide notice of the information and evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015).  A January 2008 letter satisfied the timing and content requirements of the duty to notify provisions

VA also has a duty to provide assistance to substantiate a claim.  38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c).  The Veteran's service treatment and personnel records have been obtained.  Post-service VA and private treatment records have also been obtained.  The Veteran was provided VA medical examinations in September 2008, October 2008, March 2012, and May 2015.  The examinations, along with the expert medical opinions, are sufficient evidence for deciding the claims.  The reports are adequate as they are based upon consideration of the Veteran's prior medical history and examinations, describe the disabilities in sufficient detail so that the Board's evaluation is a fully informed one, and contain reasoned explanations.  Thus, VA's duty to assist has been met.

II.  Left Knee Disability

The Veteran seeks an increased rating for service-connected traumatic left knee arthritis with total knee replacement.

Historically, the Veteran injured his left knee in 1982 with an arthrogram reportedly showing a small tear of the medial horn of the medial meniscus.  In May 1983, an arthroscopy resulted in diagnoses of synovitis and mild degenerative arthritis.  At a VA examination in August 1990, the Veteran reported to a VA examiner a history of arthrogram in service which revealed medial meniscal tear.  Examination was significant for painful motion, but all other findings were unremarkable.

A November 1990 AOJ rating decision awarded service connection for degenerative arthritis of the left knee, and assigned an initial 10 percent rating under DC "5010-5257" effective June 1, 1990.  The basis for this assigned rating was not clearly explained.  

In November 2004, the Veteran complained of knee pain.  A VA provider assessed arthritis and recommended total left knee arthroplasty.

In May 2005, left knee x-rays revealed moderate left femorotibial degenerative osteoarthritis.  A VA provider assessed bilateral substantial, suprapatellar effusions.

In December 2006, left knee x-rays revealed that the left knee appeared normal.  A VA provider nonetheless recommended total left knee arthroplasty.

In November 2007, the Veteran filed a claim for increase.

In August 2008, a VA provider noted some bilateral knee crepitation.

On VA examination in September 2008, the Veteran reported daily pain, which he treated with medication.  Physical examination showed flexion to 130 degrees, with pain at 130 degrees.  There was no evidence of functional loss or impairment and no additional limitation in range of motion on repetitive-use testing.  There was crepitus, but instability tests were normal and there was no evidence of subluxation.

The Veteran began seeking care for left knee osteoarthritis in March 2010.  See, e.g., Statement (December 13, 2010).

In September 2010, the Veteran was scheduled to undergo total left knee arthroplasty in October 2010.  Prior to surgery, the Veteran report that pain was 3/10.  He also reported that his part-time job required a lot of walking and that he felt that his exercise tolerance had improved since his April 2010 right knee arthroplasty.  Presurgical physical examination revealed no swelling, effusion, or instability.  The Veteran underwent total left knee arthroplasty in October 2010.

In February 2012, the RO increased the disability rating for the left knee disability to 100 percent, effective October 6, 2010, and 30 percent, effective December 1, 2011.

On VA examination in March 2012, the Veteran reported daily pain, which he treated with medication.  The Veteran also reported difficulty with kneeling, bending, and prolonged standing.  He denied flares of disability.  Physical examination showed flexion to 100 degrees, with pain at 50 degrees, and extension to 0 degrees, with no objective evidence of pain.  There was tenderness/pain to palpation for joint line or soft tissues of the knee.  The Veteran had 4/5 strength in extension and flexion.  There was no evidence of functional loss or impairment and no additional limitation in range of motion on repetitive-use testing.  Instability tests were normal and there was no evidence of subluxation.  The examiner opined that the residuals of the left knee replacement were decreased range of motion, pain, and a scar.

In April 2015, the Veteran reported left knee stiffness and pain of 5/10 severity.  A VA provider noted signs of effusion and that left knee flexion was approximately to 105 degrees.  Later that month, a VA provider noted that the left lower extremity was limited by pain but that there was no gait abnormality, erythema, or joint swelling.
  
On VA examination in May 2015, the Veteran reported decreased pain since the October 2010 left knee replacement.  He described pain of 4-5/10 severity.  However, he fatigued easily and had knee pain after an hour of walking.  He also reported that his knee cap seemed to slide a little bit.  He noted that he cannot bowl anymore.  He had occasional swelling and give-way about 10 percent of the time.  He denied flares of disability.  His limitations included an inability to bend or stoop, decreased range of motion, inability to lift greater than 20 pounds and difficulty with standing for more than 5 minutes.  He used a grocery cart when walking, and had pain when sitting with knees bent greater than 5 minutes.  Physical examination showed flexion to 90 degrees, with pain at 90 degrees, and extension to 0 degrees, with no objective evidence of pain.  There was no evidence of functional loss or impairment and no additional limitation in range of motion on repetitive-use testing.  On review of the record, the examiner indicated there were no signs of weakness, fatigability, incoordination or instability.  Strength and instability tests were normal and there was no evidence of subluxation.  The examiner opined that the residuals of the left knee replacement were intermediate degrees of residual weakness, pain, and limitation of motion.

In a December 2015 brief, the Veteran contended that a higher rating is warranted because his left knee disability was severe prior to the October 2010 surgery.

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her 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 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2015).  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 rating will be assigned.  38 C.F.R. § 4.7 (2010).

When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied.  See 38 U.S.C.A. § 5107(a) (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

When a claimant is awarded service connection and assigned a disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found.  Such separate disability ratings are known as staged ratings.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned).  In Hart v. Mansfield, the Court extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings."  Hart v. Mansfield, 21 Vet. App. 505, 511 (2007). 

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 planes.  Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.  38 C.F.R. § 4.45.

In addition, the intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased.

Thus, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria.  DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995).

Notably, pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Included within 38 C.F.R. § 4.71a are multiple diagnostic codes that evaluate impairment resulting from service-connected knee disorders, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum).

The criteria of Diagnostic Code 5256 pertain to ankylosis.  Ankylosis refers to immobility and consolidation of a joint due to disease, injury, or surgical procedure).  See Shipwash v. Brown, 8 Vet. App. 218, 221 (1995) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 91 (27th ed. 1988). 

According to Diagnostic Code 5257, a 10 percent rating will be assigned with evidence of slight recurrent subluxation or lateral instability of a knee; a 20 percent rating will be assigned with evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating will be assigned with evidence of severe recurrent subluxation or lateral instability.

Under Diagnostic Code 5258, a 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint.

Under Diagnostic Code 5259, a 10 percent rating is warranted for symptomatic removal of semilunar cartilage.

Under Diagnostic Code 5003, degenerative arthritis, when established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved.  When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under Diagnostic Code 5003.  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, DC 5003. 

The Diagnostic Codes that focus on limitation of motion of the knee are Diagnostic Codes 5260 and 5261.  Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion.  See 38 C.F.R. § 4.71a, Plate II.  Under Diagnostic Code 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5260. 

Under Diagnostic Code 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5261.

In general, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  The Court has also held that "within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise."  Cullen v. Shinseki, 24 Vet. App. 74 (2010). 

VA's Office of General Counsel has stated that compensating a claimant for separate functional impairment under Diagnostic Codes 5257 and 5003 does not constitute pyramiding.  VAOPGCPREC 23-97 (July 1, 1997).  In this opinion, the VA General Counsel held that a Veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating is based upon additional disability.  Subsequently, in VAOPGCPREC 9-98 (Aug. 14, 1998), the VA General Counsel further explained 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 based on painful motion under 38 C.F.R. § 4.59.  See also VAOPGCPREC 9-04 (Sept. 17, 2004) (which finds that separate ratings under Diagnostic Code 5260 for limitation of flexion of the leg and Diagnostic Code 5261 for limitation of extension of the leg may be assigned for disability of the same joint).

Under 38 C.F.R. § 4.71a, Diagnostic Code 5055, replacement of either knee joint warrants a 100 percent evaluation for a one-year period following implantation of the prosthesis.  Thereafter, a 60 percent evaluation is warranted if there are chronic residuals consisting of severely painful motion or severe weakness in the affected extremity.  With intermediate degrees of residual weakness, pain or limitation of motion, the disability will be rated be rated by analogy to DCs 5256, 5261 or 5262.  The mandatory minimum evaluation is 30 percent.  The 100-percent rating for one year following implantation of prosthesis will commence after the initial grant of a one-month total rating following hospital discharge to be assigned under 38 C.F.R. § 4.30.

As a matter of law, the Diagnostic Code 5055 does not contemplate partial knee replacements.  See Hudgens v. Gibson, 26 Vet. App. 558, 560-51 (2014).  However, the Board can rate by analogy under DC 5055.  Id. at 563.




a.  Prior to October 6, 2010

Prior to October 6, 2010, the Veteran's left knee disability had been rated under Diagnostic Codes 5010-5257 since June 1, 1990.  Hyphenated diagnostic codes are used when a rating under one code requires use of an additional code to identify the specific basis for the rating assigned.  The additional code is shown after a hyphen.  38 C.F.R. § 4.27 (2015).  Diagnostic Code 5010 provides that ratings for traumatic arthritis are to be evaluated under Diagnostic Code 5003, which provides that limitation of motion is to be rated under the appropriate diagnostic code.  Diagnostic Code 5257 provides ratings for recurrent subluxation or lateral instability.  Thus, it appears that the RO provided the initial rating by analogy to slight recurrent subluxation or lateral instability. 

During the time period prior to the total knee replacement, there was no medical evidence of instability or subluxation.  In fact, the September 2008 VA examination indicated that stability tests were normal, and that there was no evidence of subluxation.  The examination prior to undergoing a total knee replacement in October 2010 also found no evidence of instability.  Additionally, the Veteran did not report or describe instability or subluxation.  

Although there is no evidence of instability, the Board will not disturb the current 10 percent rating on the basis of instability under Diagnostic Code 5257 because it had been in effect for more than 20 years and is thus protected.  See 38 C.F.R. § 3.951(b) ("A disability which has been continuously evaluated at or above any rating of disability for 20 or more years for compensation purposes under laws administered by the Department of Veterans Affairs will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud."); see also Murray v. Shinseki, 24 Vet. App. 420 (2011) (finding that if a veteran has a protected rating under a specific diagnostic code, VA cannot reclassify the disability by assigning the same rating under a different diagnostic code if the effect is to reduce the protected rating, even while maintaining the same rating based on different manifestations of the disability).

However, the lay and medical evidence did not demonstrate, or more nearly approximate, the criteria for moderate recurrent subluxation or lateral instability prior to the total left knee replacement.  Thus, a higher rating is not warranted under Diagnostic Code 5257.

The Board must also consider whether a separate rating is warranted under different diagnostic codes.

The Veteran clearly manifested arthritis with painful motion.  The Board finds that this warrants a separate compensable rating under Diagnostic Code 5010.  VAOPGCPREC 9-98 (Aug. 14, 1998); 38 C.F.R. § 4.59.  

However, separate ratings are not warranted on the basis of limitation of flexion or extension under Diagnostic Codes 5260 or 5261.  During this period of the appeal, flexion was limited, at worst, to 130 degrees, and there was no limitation of extension, even considering pain and other factors.  This is shown by the September 2008 VA examination report.  These ranges of motion do not meet the criteria for separate compensable ratings for flexion and extension, which require at least flexion limited to 60 degrees or extension limited to 5 degrees.  Notably, the September 2008 VA examiner specifically found that repetitive testing did not result in any additional motion loss, and the Veteran has not described functional impairment comparable to flexion limited to 60 degrees or extension limited to 5 degrees. 

A separate evaluation is also not warranted on the basis of a meniscus disability under Diagnostic Codes 5258 or 5259 because the Veteran is in receipt of a permanent disability rating under Diagnostic Code 5257.  Indeed, the Veteran's Benefits Administration (VBA) has determined that separate ratings for subluxation or lateral instability under Diagnostic Code 5257 and a meniscus disability Diagnostic Code 5258 or Diagnostic Code 5259 would violate the rule against pyramiding.  The rationale is that the criteria for all of those codes contemplate instability; dislocation and locking under Diagnostic Code 5258 is consistent with instability; the broad terminology of "symptomatic" under Diagnostic Code 5259 also contemplates instability; and medical EPSS notes that instability is common symptomatology associated with both of these disabilities.  See VBA Manual M21-1, III.iv.4.A.3.h.  Furthermore, as a compensable rating has been assigned for painful motion, a separate rating under DC 5258 or 5259 would also be impermissible.  M21-1, Part III.iv.4.A.3.g.  The Board defers to VA's reasonable interpretation of its own laws and regulations.  Chevron U.S.A., Inc., v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d. 694 (1984). 

The Board has also considered other potentially applicable diagnostic codes.  However, as the evidence shows that the Veteran's knee disability was not productive of ankylosis, impairment of the tibia and fibula, or genu recurvatum, disability ratings are not warranted under Diagnostic Codes 5256, 5262, or 5263.

b.  From December 1, 2011

From October 6, 2010, to November 31, 2011, the Veteran received a temporary 100 percent disability rating for left knee replacement, under Diagnostic Code 5055, which provides that a 100 percent disability rating is warranted for one year following implantation of prosthesis.

From December 1, 2011, the Veteran has been in receipt of a 30 percent rating, which is the minimum rating for a knee replacement under Diagnostic Code 5055.  A 60 percent, the next higher rating and maximum under the Code, is warranted for chronic residuals, consisting of severe painful motion or weakness, or intermediate degrees of residual weakness, pain, or limitation of motion, which is to be rated by analogy to Diagnostic Codes 5256 (ankylosis), 5261 (limitation of extension), or 5262 (impairment of tibia and fibula).

Following the Veteran's left knee replacement, there is no lay or medical evidence of severe painful motion or weakness.  The Veteran has reported daily pain self-characterized as 5/10 in severity which is consistent with moderate and not severe pain.  He had denied flares of disability.  The Veteran has described give-way 10 percent of the time and physical limitations with standing, walking and sitting with an inability to bend or stoop.  He reports fatigue after an hour of walking and that he can no longer bowl.  However, the VA examinations showed no worse than 4/5 strength in flexion and extension which is not consistent with severe weakness.  Physical examination shows, at worse, limitation of flexion to 50 degrees without additional limitation of repetitive use testing.  Overall, the Board finds that such impairment does not more nearly approximate severe pain or weakness as contemplated by the maximum disability rating for a knee replacement.  The Board agrees with the May 2015 VA examiner's opinion that the Veteran's residuals are intermediate.  While intermediate, the Veteran's residuals are not manifested by ankylosis, limitation of extension, or impairment of tibia and fibula.  There is no lay or medical evidence of ankylosis or limitation of extension.  There is also no evidence of malunion or loose motion requiring a brace to warrant an analogous and higher rating under Diagnostic Code 5262.  For these reasons, the criteria for a rating greater than 30 percent rating have not been met, or more nearly approximated, for any time during the appeal period.

In sum, the evidence warrants a separate 10 percent rating for painful motion under Diagnostic Code 5010 for the time period prior to October 6, 2010, but the preponderance of the evidence is against the claim for higher schedular ratings; there is no doubt to be resolved; and an increased rating is not warranted.  The issue of entitlement to an extraschedular rating is addressed in the remand section below.

III.  Hearing Loss

The Veteran seeks a compensable rating for hearing loss.

Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by puretone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second.  "Puretone threshold average" is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four.  This average is used in all cases (including those in §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa.  38 C.F.R. § 4.85, DC 6100.

In cases of exceptional hearing loss, i.e. when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the Roman numeral designation will be determined for hearing impairment, separately, from either Table VI or Table VIa, whichever results in the higher numeral.  38 C.F.R. § 4.86(a).

In November 2007, the RO received the Veteran's claim for an increased rating.

An October 2008 VA audiological examination recorded puretone thresholds, in decibels, and controlled speech discrimination as follows:


HERTZ
CNC

1000
2000
3000
4000
Avg
%
RIGHT
20
35
35
70
40
94
LEFT
25
65
75
75
60
90

"In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report."  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  The examiner must elicit information from the Veteran concerning the functional effects of his or her disability.  The audiologist is not required to read the Veteran's mind, nor is the audiologist required to offer speculative opinion based on information that the Veteran has not provided.  Id.

The October 2008 VA examiner noted that the Veteran's primary concerns were difficulty clearly understanding speech in all listening conditions.

Applying these results to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in the right ear and Level III in the left ear.  Where hearing loss is at Level I in one ear and Level III in the other, a noncompensable rating is assigned under Table VII in 38 C.F.R. § 4.85.

A July 2010 VA audiological examination recorded puretone thresholds, in decibels, and controlled speech discrimination as follows:


HERTZ
CNC

1000
2000
3000
4000
Avg
%
RIGHT
20
40
40
75
44
88
LEFT
20
70
75
80
61
92

The VA audiologist reported that the Veteran's primary concern was that his hearing loss may have worsened.

Applying these results to Table VI in 38 C.F.R. § 4.85 yields a finding of Level II hearing loss in the right ear and Level III in the left ear.  Where hearing loss is at Level II in one ear and Level III in the other, a noncompensable rating is assigned under Table VII in 38 C.F.R. § 4.85.

A May 2015 VA audiological examination recorded puretone thresholds, in decibels, and controlled speech discrimination as follows:


HERTZ
CNC

1000
2000
3000
4000
Avg
%
RIGHT
25
45
70
75
54
88
LEFT
30
60
75
75
60
88

The May 2015 VA examiner noted that the Veterans primary concerns were difficulty hearing his wife and listening to people on the phone.

Applying these results to Table VI in 38 C.F.R. § 4.85 yields a finding of Level II hearing loss in the right ear and Level III in the left ear.  Where hearing loss is at Level II in one ear and Level III in the other, a noncompensable rating is assigned under Table VII in 38 C.F.R. § 4.85.

Additionally, the 2010 and 2015 audiometric results do not demonstrate an exceptional pattern of hearing as contemplated under 38 C.F.R. § 4.86.

Accordingly, there is no evidence demonstrating that the Veteran's bilateral hearing loss meets the criteria for a rating in excess of 40 percent.  38 C.F.R. § 4.85, 4.86.

In so holding, the Board has considered the Veteran's description of decreased hearing acuity and functional limitations.  There is no reason to doubt the credibility of the Veteran with respect to his hearing loss disability.  The findings on the examination of record are consistent with his assertions that he has difficulty hearing.  However, the VA audiology tests do not show the requisite hearing loss for a compensable rating.  The Board is bound in its decisions by applicable provisions of law and regulations.  See 38 U.S.C.A. § 7104; 38 C.F.R. § 19.5.  In addition, the Court has explained that the assignment of disability ratings for hearing impairment is derived from a mechanical application of the Rating Schedule to numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  In this case, the mandated mechanical application of the Rating Schedule to the numeric designations assigned based on the reported audiometric evaluation does not warrant an evaluation more than previously assigned by the RO.

The preponderance of the evidence is against the claim for a schedular compensable rating for hearing loss; there is no doubt to be resolved; and an increased rating is not warranted.  The issue of entitlement to an extraschedular rating, which may consider the functional limitations caused by the Veteran's hearing loss disability, is addressed in the remand section below.

III.  Peptic Ulcer Disease

The Veteran seeks service connection for an ulcer, which he asserts is due to his service-connected psychiatric disorder, which is currently 70 percent disabling.

Service connection is warranted for a current disability that is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310 (2015).

On VA examination in September 2008, the Veteran gave a history of bleeding ulcer, use of non-steroidal antiinflammatory drugs for knee pain, and anxiety attacks.  The VA examiner noted peptic ulcer disease with gastrointestinal bleed in 1998, which is currently asymptomatic and stable with medications.  The examiner opined that peptic ulcer disease is less likely than not that the Veteran use of nonsteroidal anti-inflammatory drugs caused the ulcer.  The rationale was that the Veteran's anxiety and stress are more likely than not the cause of his peptic ulcer disease.

In light of the uncontroverted September 2008 VA medical opinion, which was signed by a certified physicians' assistant and a doctor, the Board finds that the Veteran's current peptic ulcer disease, albeit asymptomatic, is proximately due to or the result of his service-connected psychiatric disorder.  Accordingly, service connection for peptic ulcer disease is warranted.


ORDER

For the time period prior to October 6, 2010, a schedular rating for traumatic left knee arthritis in excess of 10 percent under Diagnostic Code 5257 is denied, but a separate 10 percent rating for painful motion under Diagnostic Code 5010 is granted.

For the time period since December 1, 2011, the criteria for a rating greater than 30 percent for status post left knee replacement is denied.

A schedular compensable rating for hearing loss is denied.

Service connection for peptic ulcer disease is granted.

REMAND

Sinusitis

The Veteran seeks a compensable rating for sinusitis, which has been rated under Diagnostic Code 6513.  Under the Schedule of ratings for the respiratory system, a 10 percent rating, the next higher rating, is warranted for sinusitis with one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting.  An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician.

During a September 2008VA examination, the Veteran reported that he was prescribed medication for sinusitis, but that he had to use it during the past year since he had moved from Texas to Nevada.  He denied pain, headaches, purulent discharge, crusting, incapacitating episodes, and antibiotic treatment.  The examiner diagnosed sinusitis, with seasonal allergic rhinitis, in remission.

A VA treatment record dated April 16, 2015, shows that UC Davis Medical Center (UCDMC) treated the Veteran's sinusitis, to include prescribing antibiotics, in March 2015.  Currently, the record only contains UCDMC treatment records dated in December 2014, which mention prior treatment for respiratory problems.  Upon remand, all outstanding UCDMC treatment records relevant to the Veteran's respiratory conditions must be obtained.
.
The April 2016 treatment record suggests that the Veteran's sinusitis may have worsened since his last VA examination in September 2008 as it now requires antibiotic treatment.  As the evidence suggests a material change in the disability, reexamination is warranted under 38 C.F.R. § 3.327 (2015).




A Right Knee Disability

The Veteran seeks service connection for a right knee disability, which he asserts is due to his service-connected left knee disability.

During an August 1990 VA examination, the Veteran reported knee pain.  One examiner diagnosed osteoarthritis of the knees.  While the examiner referenced both knees, the diagnosis was based on a left knee x-ray and his report only discussed left knee arthritis.  A second examiner rendered the impression that the knees were normal.

In May 2005, x-rays revealed moderate to severe right femorotibial degenerative osteoarthritis with bilateral substantial, suprapatellar effusions.  In December 2006, x-rays revealed significant medial compartment joint space narrowing with a suprapatellar effusion of right knee and that the left knee appeared normal.  An August 2008 VA treatment note shows some bilateral crepitation.

During a September 2008 VA examination, the Veteran reported right knee pain since 2000.  The examiner diagnosed moderate degenerative arthritis in both knees.  The examiner opined that it is less likely than not that the Veteran's service-connected left knee disability caused or aggravated the current right knee disability.  The rationale was that the left knee disability was not severe enough to impair walking, which could have caused the right knee disability.  The rationale was based on the fact that the December 2006 x-rays of the left knee appeared normal.

The Board finds that the examiner's opinion may have been predicated on an inaccurate medical history.  Specifically, the examiner's rationale is based on the fact that the December 2006 x-rays of the left knee appeared normal; however, the examiner failed to address recommendations for total left knee arthroplasty as early as November 2004 or diagnoses of bilateral knee arthritis in August 1990, November 2004, and May 2005.  Accordingly, remand for reexamination is needed.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Reexamination is also needed to address whether any of the service-connected disabilities of the hips and feet, which interfere with the Veteran's ability to walk, cause or aggravate his right knee disability.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

Hypertension and Diabetes Mellitus

The Veteran seeks service connection for hypertension and diabetes mellitus.

Service treatment records show over 60 separate blood pressure readings, each taken on different days:  20 of which show diastolic blood pressure above 90mm.

In April 2014 and July 2014, VA examiners noted that the Veteran's hypertension and diabetes mellitus, respectively, may be related to his service-connected psychiatric disorder.  While, this evidence is favorable, it is insufficient to decide the claims.  See 38 U.S.C.A. § 5103A(d)(2) (West 2014); 38 C.F.R. § 3.159(c)(4)(i) (2015); McLendon v. Nicholson, 20 Vet. App. at 81.  Accordingly, further medical development is needed.

Extraschedular Rating

The issue of entitlement to an extraschedular rating is remanded as it is inextricably intertwined with the remanded claim of entitlement to an increased rating for sinusitis.  The rationale is that the requested development may reveal an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  See Johnson v. McDonald, 762 F. 3d 1362 (2014).

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and request authorization and consent to release information to VA, for UCDMC, as well as any other private treatment provider who has treated the Veteran's sinusitis.  Upon receipt of such, take appropriate action to contact the identified providers and request complete records.  The Veteran should be informed that in the alternative he may obtain and submit the records himself.  

2.  Obtain complete VA treatment records since October 2015.

3.  Thereafter, schedule the Veteran for a VA examination by an appropriate medical professional.  The examiner is to identify the current severity of the Veteran's service-connected sinusitis.  The examiner is to review the entire claims file, to include any electronic files.  The examination report must include a complete rationale for all opinions expressed.

4.  Schedule the Veteran for a VA examination by an appropriate medical professional with respect to the right knee claim.  The examiner must review the entire claims file.  The examiner is to address the August 1990 diagnosis of bilateral knee arthritis, specifically, whether the diagnosis was valid.  If the examiner determines that the Veteran did not have right knee arthritis in August 1990, then the examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current right knee disability is caused or aggravated beyond the normal progress of the disorder by service-connected disability - namely disabilities of the left knee, feet, and/or hips.  In forming an opinion, the examiner is to address recommendations for total left knee arthroplasty as early as November 2004 as well as diagnoses of bilateral knee arthritis in August 1990, November 2004, and May 2005.

The examination report must include a complete rationale for all opinions expressed.

5.  Forward the claims file to an appropriate medical professional to address the hypertension and diabetes mellitus claims.  The examiner must review the entire claims file.  Based on this review, the examiner should provide opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension and/or diabetes mellitus first manifested in service or within one year of service discharge, OR has been aggravated beyond the normal progress of the disorder by the service-connected psychiatric disorder.  The examiner is to address the April 2014 and July 2014 VA examiners' opinions that the Veteran's hypertension and diabetes mellitus, respectively, may be related to his service-connected psychiatric disorder.  The examination report must include a complete rationale for all opinions expressed.

Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinions.

6.  Finally, after conducting any other development deemed necessary, readjudicate the appeal.  If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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).



______________________________________________
T. MAINELLI 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs