Citation Nr: 1646558	
Decision Date: 12/13/16    Archive Date: 12/21/16

DOCKET NO.  09-18 434	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for a left arm disability.

3.  Entitlement to a rating in excess of 10 percent for bilateral hearing loss.

4.  Entitlement to increases in the ratings for degenerative disc disease of the lumbosacral spine (currently rated 10 percent prior to November 12, 2005, and 20 percent from that date).

5.  Entitlement to increases in the ratings for a right knee disability, currently rated 20 percent disabling for post-operative instability with arthritis throughout the appeal period; 10 percent disabling for traumatic arthritis with loss of motion throughout the appeal period; and 0 percent disabling for limitation of extension, from March 28, 2011.

6.  Entitlement to increases in the ratings for a left knee disability, currently rated 20 percent disabling for post-traumatic instability with arthritis throughout the appeal period; 10 percent disabling for traumatic arthritis with loss of motion throughout the appeal period; and 0 percent disabling for limitation of extension, from March 28, 2011.

7.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. Matta, Associate Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from September 1961 to November 1961 and from November 1965 to June 1976.  These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO) which continued the separate 20 percent ratings for left and right knee instability and the 10 percent ratings for hearing loss and for a back disability.  A November 2011 rating decision continued the ratings for right and left knee instability (20 percent each) and right and left knee traumatic arthritis with loss of motion (10 percent each), and also granted noncompensable ratings for left and right knee limintation of extension, effective March 28, 2011.  A December 2015 rating decision subsequently increased the rating for the Veteran's service-connected back disability to 20 percent, effective November 12, 2015.  In December 2013, a hearing was held before a Decision Review Officer (DRO). In July 2016, a videoconference hearing was held before the undersigned; transcripts from both hearings are in the record.  Following the July 2016 hearing, the Veteran submitted additional private treatment records with a waiver of initial RO consideration.

The issue of service connection for bilateral hip arthritis has been raised by the record in a December 2006 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  The Board further notes that a December 2015 supplemental statement of the case erroneously included the issue of an increased rating for tinnitus although the Veteran never initiated an appeal with respect to that issue.  Therefore, the Board does not have jurisdiction over these matters, and they are referred to the AOJ for appropriate action.  38 CFR 19.9(b)(2015); see 79 Fed. Reg. 57,660 (Sept. 24, 2014) (codified in 38 CFR Parts 3, 19, and 20 (2015)).    

The issues of increased ratings for bilateral knee and back disabilities, and  entitlement to TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.  VA will notify the Veteran if action on his part is required.


FINDING OF FACT

At no time under consideration is the Veteran's hearing acuity shown to have been worse than Level III in the right ear or Level VI in the left.

CONCLUSION OF LAW

A rating in excess of 10 percent for bilateral hearing loss is not warranted.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4, §§ 4.85, 4.86, Code 6100 (2015).
REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

VA's duty to notify was satisfied by letters in September 2006 and December 2008.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured, as well as records from the Social Security Administration.  VA examinations were conducted in conjunction with this appeal in October 2006 and October 2015. The Board finds the reports of the examinations adequate for rating purposes as they included audiometry in accordance with regulatory criteria, and the examiners expressed familiarity with the Veteran's history and the hearing loss disability picture presented.  The examiners elicited from the Veteran and accepted at face value his descriptions of the impact of his hearing loss on his functioning.  He has not identified any additional pertinent evidence that remains outstanding.  VA's duty to assist is met.

Legal Criteria, Factual Background, and Analysis

Initially, the Board notes that it has reviewed all of the evidence in the Veteran's record with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim.

Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  Separate diagnostic codes identify the various disabilities. 

In a claim for an increased rating in a previously service-connected disability, VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase when it is factually ascertainable that an increase in disability had occurred.  38 C.F.R. §§ 3.157, 3.400(o)(2).

Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations for hearing acuity assigned after audiometric evaluations are performed.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness.  The assignment of the appropriate numeric level is based on the results of controlled speech discrimination tests in combination with the claimant's average hearing threshold.  The average puretone threshold is derived from puretone audiometric testing in the frequencies of 1000, 2000, 3000, and 4000 Hertz.  38 C.F.R. § 4.85.

Rating specialists use either Table VI or VIA of 38 C.F.R. § 4.85 to determine the hearing acuity level.  Table VIA is employed when the use of speech discrimination tests is inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (defined in 38 C.F.R. §  4.86).  One such pattern occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more.  38 C.F.R. § 4.86(a).  Another occurs when the puretone threshold at 1000 Hertz is 30 decibels or less and the puretone threshold at 2000 Hertz is 70 decibels or more.  38 C.F.R. § 4.86(b).  

Separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999).

On October 2006 VA fee-based audiological examination, audiometry revealed that puretone thresholds, in decibels, were:



1000
2000
3000
4000
R
40
70
80
85
L
35
75
85
80

The average puretone thresholds were 69 decibels in the right and left ears.  Speech audiometry revealed speech recognition ability of 92 percent in the right and left ears.  The examiner opined that the Veteran's functional limitations included being unable to hear and distinguish words clearly.

During his December 2013 DRO hearing, the Veteran reported that he has problems hearing and can only hear a person if that person is looking at him.  He has learned to watch people and their facial movements to "halfway figure out" what they are saying.

On November 2015 VA audiological evaluation, the Veteran reported that he experiences difficulty hearing in noisy environments and in group situations.  He cannot hear people from a distance.  Audiometry revealed that puretone thresholds were:


1000
2000
3000
4000
R
50
75
95
80
L
45
80
95
75

The average puretone thresholds were 75 decibels in the right ear and 74 decibels in the left.  Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 74 percent in the left ear.  The examiner opined that the Veteran's hearing loss impacted on ordinary conditions of life because he is unable to follow conversations, needs frequent repetitions, and needs to face a person when speaking in order to understand words.  

During his July 2016 Board videoconference hearing, the Veteran again testified that he has grown accustomed to watching people in order to try to understand what they are saying.  Because of this, he has difficulty hearing people who address him from a distance or if they are not looking at him while speaking.
A review of all the audiometry of record found none showing a hearing impairment warranting a rating in excess of 10 percent.  Specifically, under Table VI, the October 2006 VA audiometry found Level II hearing in the right and left ears, and the November 2015 VA audiometry found Level III and Level VI hearing in the right and left ears, respectively.  No examination found an exceptional pattern of hearing loss, as defined in 38 C.F.R. § 4.86 (so as to warrant rating under the alternate criteria in Table VIA).  Accordingly, no audiometry during the period under consideration shows a hearing loss disability warranting a rating in excess of 10 percent under the schedular criteria for rating hearing loss.  

Regarding the Veteran's assertions that his hearing impairment is greater than reflected by the 10 percent rating assigned, the Board acknowledges he is competent to testify as to symptoms he experiences, including difficulty hearing.  However, as a layperson, he is not competent to establish his level of hearing impairment by his own opinion.  As noted above, the rating of hearing loss disability involves the mechanical application of the rating schedule to findings on controlled audiometry.  Such application here results in a 10 percent rating being warranted throughout.  See Lendenmann, 3 Vet. App. at 349.  The Board finds no reason to question that the functional impairment flowing from the Veteran's hearing loss disability is as he describes.  However, such impairment is contemplated by the 10 percent rating currently assigned.  

The Board has considered whether this matter should be referred for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b).  However, as the schedular criteria contemplate the findings and associated functional impairment (such as an inability to follow conversations, the need for frequent repetitions, and the need to face people when they speak) shown and there is no impairment (alleged or shown) that is not encompassed by the schedular criteria, those criteria are not inadequate, and referral for extraschedular consideration is not necessary.  See Thun v. Peake, 22 Vet. App. 111 (2008).   

ORDER

A rating in excess of 10 percent for bilateral hearing loss is denied.
REMAND

The Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran with respect to his remaining claims.

Back and Knee Disabilities

During his July 2016 Board videoconference hearing, the Veteran testified that he was was treated by Dr. Jose Perez at the South Texas Spinal and Brain Clinic two days before his hearing; to date, those records have not been associated with the Veteran's record and must be obtained.  Additionally, the most recent VA treatment records associated with the record are from November 2012.  Updated records of any VA treatment the Veteran received for the disabilities on appeal may contain pertinent information, are constructively of record, and must be obtained.

Additionally, the U.S. Court of Appeals for Veterans Claims (Court) recently held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  Correia v. McDonald, No. 13-3238 (Vet. App. July 5, 2016).  Thus, the Court clarified the requirements that must be met with respect to orthopedic disability examinations prior to the Board finding that an examination report includes adequate evidence to adjudicate the claim.  Id.  

In this case, a review of the claims file reveals that the November 2006 and October 2015 VA back and knee examinations and June 2011 VA knee examination do not fully comport with the Court's holding in Correia and therefore may be inadequate.  Thus, at present, none of the medical evidence of record may fully satisfy the requirements of Correia and 38 C.F.R. § 4.59.  Furthermore, in July 2016 testimony and in private and VA treatment records, the Veteran has complained of weakness in his legs that could be associated with his service-connected disabilities.  Accordingly, and for this additional reason, new VA back and knee examinations are necessary.


TDIU

The Veteran contends that he is unable to maintain substantially gainful employment due to his service-connected disabilities, to include his service-connected bilateral knee and back disabilities.  As such, his TDIU claim is inextricably intertwined with his claims of increase for service-connected bilateral knee and back disabilities, which are being remanded.  Accordingly, consideration of his TDIU claim must be deferred pending resolution of the other issues.

Additional Considerations

The Board also notes that the Veteran filed a notice of disagreement with respect to an August 2010 rating decision that denied service connection for PTSD and a December 2012 rating decision that denied service connection for a left arm disability.  The record does not show a statement of the case (SOC) has been issued in those matters.  In such circumstances, the Board is required to remand the matters for issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999).  [These matters are not now yet fully before the Board, and will be so only if the Veteran timely files a substantive appeal after an SOC is issued.]

Accordingly, the case is REMANDED for the following:

1. The AOJ should ask the Veteran to identify all providers of evaluations or treatment he received for the disabilities on appeal and to provide authorizations for VA to obtain records of any such private evaluations or treatment, to specifically include records from Dr. Jose Perez and the South Texas Brain and Spine Center. The AOJ should obtain for the record complete clinical records of the evaluations and treatment identified (i.e., any not already associated with the record).  If any private records identified are not received pursuant to the AOJ's request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private records are received.

The Veteran should be notified of any negative replies, and these replies should also be documented in the claims folder.

2. The AOJ should specifically obtain for the record complete clinical records of all VA evaluations and treatment the Veteran has received for the disabilities on appeal (i.e., update to the present all records of VA evaluations and treatment for his back and bilateral knees from all VAMCs).

3.  The AOJ should then arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected back and bilateral knee disabilities. The examiner must review the entire record in conjunction with the examination.  Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail.  All indicated tests or studies should be completed. 

Range of motion studies should include active and passive motion and weight-bearing and non-weight-bearing.  The examiner should note any further functional limitations due to pain, weakness, fatigue, incoordination, or any other such factors.  The examiner should address the Veteran's prior reports of radiating pain into his lower extremities and determine whether such pain is related to his service-connected back and/or knee disabilities.  

(a)  Specifically with respect to the Veteran's service-connected back disability, the examiner should note whether the spine is ankylosed, and indicate whether there are any further related neurological manifestations (including lower extremity radiculopathy), and if so, their nature and severity.  The examiner must also indicate whether there is related intervertebral disc disease (and if so, whether there have been incapacitating episodes of such, and their frequency and duration).

(b) With respect to the Veteran's service-connected bilateral knee disabilities, all findings reported should be sufficient to allow for rating under all applicable criteria, and the examiner should expressly indicate whether there is subluxation or instability (and if so, the degree of such).

The examiner(s) must include rationale and reasoning with all opinions and conclusions, citing to supporting clinical data as deemed appropriate.

4. Then, the AOJ should review its determinations on the claims of service connection for PTSD and a left arm disability, arrange for any further development indicated (including contemporaneous examinations, if indicated) and issue an appropriate SOC in these matters. The Veteran and his representative should be advised of the time afforded for perfecting an appeal in these matters, and opportunity to do so. If that occurs, these matters should also be returned to the Board for appellate review.

5. Thereafter, the AOJ should forward the Veteran's record to a vocational specialist for review and an advisory opinion regarding whether the cumulative effect of the Veteran's service-connected disabilities is such as to preclude sedentary types of employment.  In making this assessment, the vocational specialist must consider the following limitations (noted on prior VA examinations) and any new limitations noted on examinations conducted pursuant to this remand.  The Veteran is restricted to no lifting and no prolonged sitting or standing, is unable to walk much or climb steps, and has difficulty hearing and understanding conversations in most situations.

5. The AOJ should then review the record and re-adjudicate the claims.  If any remain denied, the AOJ should issue an appropriate supplemental SOC and afford the Veteran and his representative the opportunity to respond.  The case should then be returned to the Board, if in order, for further review.

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 for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
VICTORIA MOSHIASHWILI
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs