Citation Nr: 1737571	
Decision Date: 09/07/17    Archive Date: 09/19/17

DOCKET NO.  12-07 581	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to a compensable rating for bilateral hearing loss.

2.  Entitlement to a compensable rating prior to August 24, 2015 for left degenerative joint disease (DJD) with strain, status post anterior cruciate ligament reconstruction and medial meniscal repair, and in excess of 20 percent from that date.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

D. Bredehorst



INTRODUCTION

The Veteran served on active duty in the Navy from June 1986 to January 2008.

This appeal to the Board of Veterans' Appeals (Board) is from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The case was remanded in November 2014 for additional development.

The Veteran also appealed the denial of service connection for right foot plantar fasciitis; however, since an August 2015 rating decision granted service connection, this issue is no longer before the Board for consideration.

In the August 2015 rating decision, the RO also increased the rating for the left knee disability to 20 percent, effective August 24, 2015 (date of VA examination).  The Veteran has not expressed satisfaction with the rating assigned for either of the "stages" on appeal; therefore, the issue has been characterized to reflect that staged ratings are assigned, and that both remain on appeal.  AB v. Brown, 6 Vet. App. 35 (1993).

In June 2016, the Veteran perfected his appeal for service connection for a right shoulder disability and obstructive sleep apnea, and an initial compensable rating for dermatitis.  The Board will not take jurisdiction over the issues at this time, since the RO has not yet certified these issues to the Board and appears to be actively undertaking additional development of these issues.

The issue of higher ratings for a left knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).





FINDING OF FACT

Throughout the appeal period, the Veteran's bilateral hearing loss has been manifested by no worse than Level I hearing loss in each ear.


CONCLUSION OF LAW

The criteria for a compensable evaluation for bilateral hearing loss are not met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.85, 4.86, Diagnostic Code 6100 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2016).

The duty to notify has been met.  See VCAA/DTA Letters received July 2010 and June 2015.  The Federal Court of Appeals has held that "absent extraordinary circumstances . . . it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the Veteran . . . ." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  In light of the foregoing, nothing more is required.

As to VA's duty to assist, the Board finds that all necessary development has been accomplished to include obtaining treatment records and arranging for VA examinations.  There has been no allegation of any prejudicial duty to assist errors in this case.  Therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

II. Legal Criteria and Analysis

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1, Part 4.

In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  The Board must consider whether the disability has undergone varying and distinct levels of severity while the claim has been pending and provide staged rating during those periods.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

The assignment of a disability rating for hearing impairment is "derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered."  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1993). 

Organic impairment of hearing acuity is rated by using audiological test results, obtained by a state-licensed audiologist, and the basic rating method involves using both the results of controlled speech discrimination tests (Maryland CNC) and the average decibel threshold level as measured by pure tone audiometry tests at the frequencies of 1000, 2000, 3000, and 4000 Hertz.  38 C.F.R. § 4.85(a).  Tests are conducted without hearing aids. 

The rating schedule establishes eleven auditory acuity levels ranging from numeric level I through numeric level XI, obtained by applying the findings to Table VI or VIa. 38 C.F.R. §§ 4.85 , 4.86.  The numeric designations for both ears are then applied to Table VII to derive the percentage evaluation, under diagnostic code 6100.

Sometimes there is an exceptional pattern of hearing impairment.  Namely, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, Table VI or Table VIA is to be used, whichever results in the higher numeral, to determine the Roman numeral designation for hearing impairment.  38 C.F.R. § 4.86(a).  When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIA is to be used, whichever results in the higher number. Thereafter, that numeral will be elevated to the next higher numeral.  38 C.F.R. § 4.86(b).

The available treatment records do not relate to the Veteran's hearing loss during the course of the appeal; therefore, the disability will be rated based on the findings of the VA examinations in August 2010 and August 2015.

On VA audiological evaluation in August 2010,  pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
20
25
45
LEFT
10
15
15
30
40

The average pure tone threshold was 26 in the right ear and 25 in the left ear.  Speech audiometry revealed speech recognition ability of 100 percent in each ear.

On the VA audiological evaluation in August 2015, the Veteran reported having difficulty hearing certain higher pitched sounds.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
10
20
30
35
LEFT
5
10
10
35
40

The average pure tone threshold was 24 in each ear.  Speech audiometry revealed speech recognition ability of 100 percent in each ear.

When the results of the first examination are input into Table VI, the Veteran is shown to have Level I hearing loss in each ear.

When the results of the second examination are input into Table VI, the Veteran is again shown to have Level I hearing loss in each ear.

Table VII shows that when hearing loss is Level I in each ear, a 0 percent rating is assigned.  

Consideration has been given to the Veteran's competent and credible statements regarding his hearing difficulties, however, his complaints about having a difficult time hearing certain higher pitched sounds is contemplated by the schedular criteria.  Notably, the evaluation of hearing loss is reached by a mechanical application of the rating schedule, to the numeric designations assigned, after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Further, 38 C.F.R. § 4.85 sets out the percentage ratings for exact numerical levels of impairment required for a compensable evaluation of hearing loss, which requires specific testing.  In reviewing the record, the Board finds that the Veteran's degree of bilateral hearing loss did not meet the standards for a compensable evaluation at any point.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for a compensable rating for bilateral hearing loss must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

A compensable rating for bilateral hearing loss is denied.



REMAND

Regarding the Veteran's claim for higher rating for his service-connected left knee disability, although he had a VA examination as recent as August 2015, it does not fully satisfy the requirements for orthopedic disabilities that require joint tests in active and passive motion, and in weight-bearing and non-weight bearing.  See Correia v. McDonald, 28 Vet. App. 158 (2016).

While on remand, additional/updated treatment records since September 2014 should be added to the record.

Accordingly, the case is REMANDED for the following actions:

1.  Contact the Veteran and ask him to identify all VA and non-VA treatment providers for his left knee since September 2014.  Add all VA treatment records to the file and obtained private treatment records through signed authorizations from the Veteran.

2.  After all available records have been associated with the claims file, schedule the Veteran for a VA examination to determine the current severity of his left knee disability.  The electronic claims file must be made available to and reviewed by the examiner.  Any indicated diagnostic tests and studies must be accomplished.  All pertinent symptomatology and findings necessary to rate these disabilities must be reported in detail to include left knee surgical scars.  

a) The examination must include all complaints, clinical findings, symptoms, and range of motion studies pertaining to the left knee.  If the right knee is undamaged, then include range of motion studies for this knee as well.  
b) Range of motion studies must include comment on pain in active motion and passive motion, and in weight-bearing and nonweight-bearing.  If such are not applicable or possible to test, then the examiner should state such along with an explanation.

c) The clinician must also address range of motion loss specifically due to pain and any functional loss during flare-ups for the left knee.  The clinician is to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time.  These determinations should, if feasible, be portrayed in terms of degrees of additional range of motion loss due to pain on use or during flare-ups.  If it is not feasible to provide the degrees in which there is an additional loss in range of motion during flare-ups or repeated use over time, then provide an explanation as to why.

3.  The examination report should be reviewed to ensure substantial compliance with the directives of this remand and corrective action deemed necessary should be completed. 

4.  After completing the above actions and any other development as may be indicated as a consequence of the actions taken above, the RO must readjudicate the Veteran's claims on appeal, in light of all the evidence of record. If the benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The appellant has the right to submit additional evidence and argument on the matter 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).




______________________________________________
A. ISHIZAWAR
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs