Citation Nr: 1753621 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 11-19 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II (DM). 2. Entitlement to a compensable disability evaluation for bilateral hearing loss. 3. Entitlement to an evaluation in excess of 10 percent for retropatellar pain of the left knee. 4. Entitlement to an evaluation in excess of 10 percent for residuals of a left wrist fracture. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from November 1984 to November 1987 and from October 1996 to January 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Montgomery, Alabama. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in October 2014. A transcript of the hearing is of record. This matter was previously before the Board in February 2015, at which time the issues listed on the title page of this decision were remanded for further development. As it relates to the issue of a compensable evaluation for hearing loss, the directives of the remand were complied with and the matter is now ready for appellate review. The issue of entitlement to service connection for migraine headaches was raised by the Veteran's representative in his September 2017 written argument but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The AOJ should notify the veteran as to the procedures required under 38 C.F.R. § 3.155 for filing a claim for VA benefits. As to the issues of increased evaluations for left wrist and left knee disabilities and the issue of service connection for DM, these matters are remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT The Veteran has been shown to have no worse than level II hearing in either ear. CONCLUSION OF LAW The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code (DC) 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 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 his or her symptomatology with the criteria set forth in the 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 the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2017). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Veteran has been assigned a noncompensable evaluation under Diagnostic Code 6100 for his service-connected bilateral hearing loss. He contends that the severity of his condition more closely reflects the severity required for a higher disability rating. The VA rating scheme for the evaluation of hearing loss provides ratings from noncompensable to 100 percent based on the results of controlled speech discrimination tests together with the results of puretone audiometry tests which average puretone thresholds at 1000, 2000, 3000 and 4000 Hertz. 38 C.F.R. § 4.85 (2017). The evaluation of hearing impairment applies a formula which is essentially a mechanical application of the VA Schedule for Rating Disabilities to numeric designations after audiology evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85(a) (2017). Using Table VI in 38 C.F.R. § 4.85, the puretone average and speech recognition score are combined to give each ear a numeric designation for use on Table VII to determine the correct disability level. Alternatively, Table VIA uses only the puretone averages to give each ear a numeric designation. The regulations have two provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that veterans experience. 38 C.F.R. § 4.86(a) provides that if puretone thresholds in the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are each 55 decibels or more, an evaluation can be based either on Table VI or Table VIA, whichever results in a higher evaluation. This provision corrects the fact that with a 55-decibel threshold level (the level at which speech becomes essentially inaudible) the high level of amplification needed to attempt to conduct a speech discrimination test would be painful to most people, and speech discrimination tests may therefore not be possible or reliable. See 64 Fed. Reg. 25209 (May 11, 1999). Additionally, 38 C.F.R. § 4.86(b) provides that if the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, an evaluation can be based on either Table VI or Table VIA, whichever results in a higher numeric designation, and that designation will then be elevated to the next higher Roman numeral. This provision compensates for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise, and a speech discrimination test conducted in a quiet room with amplification of sound does not always reflect the extent of impairment experienced in the ordinary environment. The Veteran has not been shown to have either of these exceptional patterns at any time. The Veteran has argued that his hearing loss is more severe than is reflected by his assigned evaluations. Although the Veteran is competent to attest to his observations and laypeople may, in some circumstances, opine on questions of diagnosis and etiology, in this case, the Veteran is not competent to diagnose himself with a particular level of hearing impairment. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also 38 C.F.R. § 3.159(a)(1) (2017) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Specifically, while the Veteran is clearly competent to describe what he experiences (diminished hearing), he is unable to provide competent evidence as the audiometry or measured level of his hearing loss to support a higher disability rating. In conjunction with his claim, the Veteran was afforded a VA examination in October 2009. At the time of the examination, the Veteran reported that his hearing loss was getting worse. Audiological evaluation revealed pure tone thresholds, in decibels, as follows: right ear 20, 15, and 20, and 65, and left ear 20, 20, 20, and 65, at 1000, 2000, 3000, and 4000 Hertz, respectively. Speech audiometry testing revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear. The examiner rendered diagnoses of normal hearing 250-3000Hz, sloping to a moderate severe recovering to a mild loss at 6000Hz then normal hearing at 8000Hz for the right ear and left ear. Using Table VI in 38 C.F.R. § 4.85, the Veteran's right ear corresponded with Level I hearing loss, the left ear corresponded with Level I hearing loss. These levels correspond with a noncompensable evaluation. In conjunction with the February 2015 Board decision, the Veteran was afforded an additional VA examination in February 2016. Audiological evaluation revealed pure tone thresholds, in decibels, as follows: right ear 30, 25, and 30, and 65, and left ear 30, 35, 30, and 65, at 1000, 2000, 3000, and 4000 Hertz, respectively. Speech audiometry testing revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. The examiner rendered a diagnosis of bilateral sensorineural hearing loss. The examiner indicated that the Veteran's hearing loss had no impact on his ordinary conditions of life. Using Table VI in 38 C.F.R. § 4.85, the Veteran's right ear corresponded with Level I hearing loss, the left ear corresponded with Level I hearing loss. These levels correspond with a noncompensable evaluation. In support of his claim, the Veteran submitted a March 2016 private audiogram. Audiological evaluation revealed pure tone thresholds, in decibels, as follows: right ear 50, 60, and 75, and 85, and left ear 55, 45, 50, and 80, at 1000, 2000, 3000, and 4000 Hertz, respectively. Speech audiometry testing revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. Using Table VI in 38 C.F.R. § 4.85, the Veteran's right ear corresponded with Level II hearing loss, the left ear corresponded with Level II hearing loss. These levels correspond with a noncompensable evaluation. In sum, hearing was, at worst, level II in the right ear and level II in the left ear. A comparison between these hearing levels and 38 C.F.R. § 4.85, Table VII, yields a noncompensable evaluation, consistent with the currently assigned rating. ORDER A compensable disability evaluation for bilateral hearing loss is denied. REMAND As it relates to the Veteran's claim of service connection for DM, the Board notes that the Veteran's representative, in his November 2017 written argument, noted a relationship between DM and hypertension and DM and inactivity, which he related to the Veteran's service-connected left knee disorder. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, at 448 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). To establish secondary service connection, the law states that there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Given the above, the Veteran should be scheduled for a VA examination to determine the relationship, if any, between his DM and his service-connected hypertension and/or left knee disorder. As it relates to the Veteran's increased rating claims for his left wrist and left knee disorders, the Veteran was last provided VA examinations in connection with these service-connected knee disabilities in October and November 2016, which is fairly recent and contemporaneous in time. Nonetheless, the Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations 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. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. In addition, as relevant to the present case, the Court stated in Correia that knees were "undoubtedly weight-bearing." Id. A review of the claims file reveals that the previous VA examination reports include only active range of motion findings and do not include range of motion findings for passive range of motion. They also do not specify whether the results are weight-bearing or nonweight-bearing. As the previous examination reports do not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, new examinations are necessary to decide the claim. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain all outstanding VA and/or private treatment records related to the Veteran's outstanding claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 2. After all available records have been associated with the claims file, the Veteran should be scheduled for an appropriate VA examination so as to determine the current nature and extent of all impairment due to his service-connected left knee and left wrist disabilities. The entire record must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the entire record has been reviewed. All indicated tests should be performed and all findings should be reported in detail. In order to comply with the Court's recent precedential decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner must test and record the range of motion for BOTH wrists and knees in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner is reminded that he/she should specify the degree of additional functional loss/motion due to pain, to include during flare-ups, or state why it was not feasible to provide such information, as required for an adequate examination. Additionally, as it relates to the left knee, the examiner should determine whether the Veteran has ankylosis of the knee; instability or subluxation of the knee; nonunion of the tibia and fibula with loose motion and requiring knee braces; dislocated semilunar cartilages with frequent episodes of locking, pain, and effusion; or severe painful motion or weakness in either knee. To the extent possible, the examiner is asked to provide retrospective commentary on the Veteran's level of the left knee and left wrist disabilities during the appeal period, to include the prior VA examinations performed in conjunction with this claim, and to comment on the range of motion movements that would be painful on passive use, in weight-bearing and non-weight-bearing. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. Schedule the Veteran for a VA examination to assist in determining the nature and etiology of any current DM. The entire record should be made available to the examiner in conjunction with the examination. All necessary tests should be performed. The examiner is requested to offer the following opinions: (a) Is it as likely as not (50 percent probability or greater) that any current DM is caused by the service-connected hypertension and/or left knee disorders, to include inactivity resulting from the left knee disorder? (b) If not, is it at least as likely as not (50 percent probability or greater) that any current DM is aggravated by the service-connected hypertension and/or left knee disorder, to include inactivity resulting from the left knee disorder? If aggravation is found, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the nonservice-connected disorder before the onset of aggravation. Complete detailed rationale is requested for any opinion that is rendered. 4. Thereafter, the RO should review the record to ensure that all of the foregoing requested development has been completed. The RO should review the requested examination reports to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. The Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall v. West, 11 Vet. App. 268 (1998). 5. After the above development has been completed, the RO should readjudicate the remaining issues on appeal. If any benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further appellate review. 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. §§ 5109B, 7112 (West 2014). ______________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs