Citation Nr: 1757530 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 14-03 743 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to higher initial ratings for right total knee replacement, rated as 10 percent from November 30, 2011 through February 6, 2012, and 30 percent from April 1, 2013 (exclusive of a temporary total convalescence rating pursuant to 38 C.F.R. § 4.30 from February 7, 2012 through March 31, 2012, and a 100 percent schedular rating from April 1, 2012 through March 31, 2013). 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for heart disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Seay, Counsel INTRODUCTION The Veteran had active service from February 1965 to February 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In March 2017, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder. The April 2012 rating decision granted service connection for status post right knee patella fracture and assigned an initial rating of 10 percent from November 30, 2011. A December 2013 rating decision assigned a higher initial rating of 30 percent effective March 30, 2012. Thereafter, a May 2015 rating decision assigned a temporary rating of 100 percent from February 7, 2012 based on surgical or other treatment necessitating convalescence, a 100 percent rating from April 1, 2012 under Diagnostic Code 5055 and a 30 percent rating from April 1, 2013. Thus, the issue on appeal has been recharacterized to reflect the staged ratings. The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disabilities, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued and the record does not otherwise reflect that his service-connected disability on appeal renders him unable to secure or follow a substantially gainful occupation. Accordingly, the Board concludes that a claim for entitlement to a TDIU has not been raised. The issues of entitlement to service connection for bilateral hearing loss and service connection for heart disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to February 7, 2012, the clinical findings show complaints of pain and limited range of motion of the right knee, but not flexion limited to 30 degrees or less or extension limited to 5 degrees or more, with no clinical evidence of instability or subluxation. 2. From April 1, 2013, the Veteran's right knee disability was manifested by intermediate degrees of residual weakness, and pain. 3. The evidence is in equipoise as to whether the Veteran's tinnitus had its onset in active service. CONCLUSIONS OF LAW 1. The criteria for an initial rating for right total knee replacement, in excess of 10 percent prior to February 7, 2012, or in excess of 30 percent from April 1, 2013, (exclusive of the period of a temporary total rating for convalescence from February 7, 2012 through March 31, 2012 and a 100 percent schedular rating from April 1, 2012 through March 31, 2013), are not met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.71a, Diagnostic Codes 5260, 5055 (2017). 2. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 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). Concerning the July 2015 VA medical examination, the Board finds that the VA examination is adequate. Concerning the range of motion findings of the joint at issue, the Board notes that the examination report does not specify passive range of motion and does not specify range of motion with and without weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). However, there is no indication that range of motion was performed other than on weight bearing. In addition, the fundamental issue for Correia is that VA examinations perform adequate joint testing for pain. Generally, active range of motion testing produces more restrictive results than passive range of motion testing, in that passive range of motion testing requires the physician to force the joint through its motions. Therefore, there is no prejudice to the Veteran in relying on the VA examination that involves active range of motion testing because such results tend to produce the "worst case scenario" of impairment and thus would tend to support the highest possible rating. Further, the Board notes that the VA examination does not specify when pain began on range of motion testing. See Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). With resolution of doubt in the Veteran's favor, the Board will concede the existence of pain throughout range of motion testing. Hence, reported range of motion findings are with pain, and, as such, demonstrate the extent of associated functional impairment, and thus, no Mitchell prejudice to the Veteran. Disability Ratings - Right Knee Disability ratings are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. § Part 4 (2017). The Veteran's service-connected right knee disability was initially characterized as status post right knee patella fracture, and rated under Diagnostic Code 5260. 38 C.F.R. § 4.71a. By a rating decision dated in December 2013, the service-connected right knee disability was recharacterized as right total knee replacement and rated under Diagnostic Codes 5010-5055. The Board finds that an initial rating in excess of 10 percent is not warranted prior to February 7, 2012 (as a temporary total convalescence rating has been assigned from February 7, 2012 through March 31, 2012, and a 100 percent schedular rating has been assigned from April 1, 2012 through March 31, 2013) under any of these Diagnostic Codes. The clinical findings of record do not reflect flexion limited to 30 degrees or less to warrant a higher rating under Diagnostic Code 5260, and do not reflect any limitation of extension to warrant higher/separate ratings under Diagnostic Code 5261. In this respect, a January 2012 private medical treatment record noted that the Veteran had pain, but indicated that the Veteran had a normal gait and range of motion was 0 extension to 140 degrees flexion. In addition, there are no clinical findings of subluxation or instability. The January 2012 private medical treatment record indicated that the Veteran's knee gave out, but his strength was normal and the tibiofemoral stability was normal on examination. Therefore, a separate rating for instability is not warranted under Diagnostic Code 5257. In addition, there are no clinical findings of ankylosis, malunion or nonunion of the tibia and/or fibula, dislocated semilunar cartilage, or genu recurvatum, to warrant higher/separate ratings. The Board considered whether higher and/or separate ratings would be warranted for the right knee disability on the basis of additional functional impairment and loss. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017). The Board finds that any additional functional loss and impairment is not to the degree to warrant an initial rating in excess of 10 percent for the right knee under Diagnostic Code 5260 and/or a separate/higher rating under Diagnostic Code 5261. The clinical findings of record do not reflect any range of motion findings that would warrant even a compensable rating under Diagnostic Code 5260 or Diagnostic Code 5261. Therefore, an initial rating in excess of 10 percent is not warranted prior to February 7, 2012. From April 1, 2012, the Veteran was assigned a 100 percent schedular rating under Diagnostic Code 5055 for his right knee replacement and thereafter a 30 percent rating was assigned effective April 1, 2013. Under Diagnostic Code 5055, a 100 percent rating is assigned for one year following the implantation of the prosthesis. 38 C.F.R. § 4.71a. Thereafter, a 60 percent rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Where there are intermediate degrees of residual weakness, pain, or limitation of motion, the disability should be rated by analogy to Diagnostic Codes 5256 (ankylosis), 5261 (limitation of extension), or 5262 (impairment of the tibia and fibula. The minimum rating available under Diagnostic Code 5055 is a 30 percent rating. The Board finds that an initial rating in excess of 30 percent is not warranted from April 1, 2013. The Board acknowledges that the March 2012 VA medical examination report completed approximately one month after the February 7, 2012 right knee replacement surgery indicated chronic residuals consisting of severe painful motion or weakness. However, at that time, the Veteran was in receipt of a 100 percent rating for his right knee replacement under Diagnostic Code 5055 through March 31, 2013. As the March 2012 VA examination report was more than one year old when the initial 30 percent rating was assigned effective April 1, 2013, the Board assigns greater probative weight to the subsequent clinical findings of record as to the severity of the Veteran's right knee disability, including the private medical treatment record dated in July 2012 and the July 2015 VA examination report. First, the Board will address rating by analogy to Diagnostic Codes 5256, 5261, and 5262. Concerning Diagnostic Code 5256, there is no evidence of ankylosis of the right knee. The Veteran has not reported that his right knee is fixed in a particular position and the July 2015 VA examiner noted flexion to 125 degrees. Thus, Diagnostic Code 5256 is not for application. Concerning Diagnostic Code 5261, there are no clinical findings which show extension of the right knee limited at 30 degrees or greater than greater, which is necessary for a rating in excess of 30 percent to be assigned based on limitation of extension. There is no indication that the Veteran ever had extension of the right knee limited to 30 degrees and; therefore, even with consideration of any additional functional impairment and loss, an initial rating in excess of 30 percent under Diagnostic Code 5261 is not warranted. Indeed, the July 2015 VA examination report noted that the Veteran was able to perform repetitive use testing and there was no additional functional loss or range of motion. The examiner noted that pain, fatigue, and lack of endurance would limit functional ability with repeated use over time and described range of motion pertaining to extension as 140 to 0 degrees, which is normal. The examiner noted that functional ability would be limited with flare-ups and that pain, fatigue, and lack of endurance caused functional loss. The examiner could not describe in terms of range of motion but that the Veteran would have more difficulty climbing stairs and sitting for long periods. Even considering the above and the Veteran's reports of flare-ups, the Board finds that the functional impairment and loss is not more comparable to extension limited to 30 degrees. With respect to Diagnostic Code 5262, there are no clinical findings of nonunion of the tibia or fibula. Therefore, an increased rating based on nonunion of the tibia and fibula with loose motion and use of a brace is not warranted. Finally, the next higher rating of 60 percent under Diagnostic Code 5055 is not warranted. While the March 2012 VA examination report indicated residuals consisting of severe painful motion and weakness, the Veteran was in receipt of a 100 percent rating at that time. From April 1, 2013, the clinical findings do not show that the Veteran's pain is severe. Specifically, a July 2012 private medical treatment record noted that the Veteran was doing great six months after his right total knee replacement. The private physician stated that the Veteran's gait was normal, no patellar instability, stability was excellent, strength was grade five and range of motion was 0 to 135 degrees flexion. There was a fully healed wound. The July 2015 VA medical examination report shows that the Veteran complained of pain, which worsened. However, he was still able to flex to 125 degrees. In addition, in an October 2015 addendum opinion to the July 2015 VA examination report, the VA examiner indicated that the residuals of the Veteran's right knee replacement resulted in intermediate degrees of residual weakness, pain or limitation of motion and not chronic residuals consisting of severe painful motion or weakness. Although the Veteran has complained of weakness in the right knee, the July 2015 VA examination report shows muscle strength of 4/5 in flexion and 5/5 in extension. Based on the evidence of record, the Board finds that the Veteran's disability more nearly approximates the criteria for a 30 percent rating and not a 60 percent rating for severe painful motion and weakness in the affected extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5055. To the extent the Veteran has complained of pain and loss of strength in the right knee, the objective clinical findings do not show that his right knee disability manifests in severe painful motion and weakness to warrant a rating in excess of 30 percent under Diagnostic Code 5055. The Board assigns greater probative value to the clinical findings of record including the October 2015 VA addendum opinion which indicated that the Veteran's residuals were of intermediate degrees of weakness, pain or limitation of motion and the July 2012 private medical treatment record which showed that the Veteran exhibited flexion to 135 degrees and had grade 5 strength. Regarding assignment under any other relevant diagnostic codes, an initial rating in excess of 30 percent is not warranted. Concerning instability, the clinical evidence of record, specifically the July 2015 VA examination report, does not show any history of recurrent subluxation or lateral instability. A rating under Diagnostic Code 5257 is not warranted. Concerning Diagnostic Code 5260, the clinical findings of record do not even reflect limitation of flexion that would warrant a compensable rating , even with consideration of additional functional impairment and loss. In this respect, the July 2015 VA examination report indicated no additional impairment following repetitive testing and the examiner indicated that the flexion of the right knee would be limited to 125 degrees after repeated use. Further, the maximum rating assignable under Diagnostic Code 5260 is 30 percent and a higher rating is not warranted under Diagnostic Code 5260. The preponderance of the evidence is against higher initial ratings than already assigned. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, the benefit-of-the-doubt doctrine is not for application and the claim is denied. Other considerations Finally, neither the Veteran nor his attorney has raised any other issues nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Service Connection for Tinnitus The evidence shows that the Veteran has a current disability. A March 2012 VA audiological examination report noted tinnitus. Concerning an in-service injury or disease, the service treatment records do not reflect any findings or complaints of tinnitus. However, the Veteran described his exposure to noise during active service. The Board finds that the Veteran's statements are competent and credible concerning his noise exposure consisting of exposure to aircraft, artillery, and small arms noise while stationed at Bien Hoa. Therefore, the Veteran incurred an in-service injury consisting of acoustic trauma. Concerning the etiology of the Veteran's tinnitus, the Veteran was provided a VA audiological examination in March 2012. The VA examiner indicated that it was "less likely than not" caused by or a result of military noise exposure. The rationale was that there was no tinnitus in the service medical treatment records or VA records until the VA examination and that while the Veteran reported the onset as beginning during active duty, his MOS did not support a high probability of noise exposure and there was no in-service event to establish a nexus. However, as noted above, the Board determined that the Veteran incurred an in-service injury consisting of acoustic trauma. In this case, despite the negative VA opinion, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's tinnitus had its onset in active service. The service treatment records do not document that the Veteran complained of tinnitus during active service; however, the Board finds that the Veteran is considered competent and credible to identify the presence of tinnitus since active service. See Charles v. Principi, 16 Vet. App. 370 (2002). While it is true that the Veteran did not report tinnitus during service, the Board also notes that the separation report of medical history did not specifically ask the Veteran whether he had ringing in his ears. The Veteran has consistently reported noting ringing in his ears since service. In consideration of all of the evidence of record, the Board finds that the evidence is in relative equipoise as to whether the Veteran's tinnitus had its onset in active service and will resolve the benefit of the doubt in favor of the Veteran. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. Service connection for tinnitus is granted. ORDER Entitlement to higher initial ratings for right total knee replacement, rated as 10 percent from November 30, 2011 through February 6, 2012, and 30 percent from April 1, 2013 (exclusive of a temporary total convalescence rating pursuant to 38 C.F.R. § 4.30 from February 7, 2012 through March 31, 2012, and a 100 percent schedular rating from April 1, 2012 through March 31, 2013) is denied. Service connection for tinnitus is granted. REMAND After review of the record, the Board concludes that remand is necessary for additional development. During the March 2017 hearing, the Veteran testified that he received private medical treatment concerning his heart disability from Chattanooga Heart Institute in Chattanooga, Tennessee and Memorial Hospital in Chattanooga, Tennessee. On remand, the Veteran must be asked to complete authorization forms concerning all relevant private medical treatment and/or submit copies of all such relevant records. 38 U.S.C. § 5103A (c); 38 C.F.R. § 3.159 (c)(1). In addition, the Board finds that a VA addendum opinion is required concerning the issue of entitlement to service connection for bilateral hearing loss. In this respect, the Veteran was provided a VA medical examination in March 2012. The VA examiner opined that the Veteran's hearing loss was not at least as likely as not caused by or a result of an event in military service. The examiner stated that the enlistment and separation reports of medical examination showed normal hearing bilaterally, marked as zeros. However, the examiner noted a "Bekesy tracing" in the service medical treatment records with no date on it, which showed "some variation in thresholds that is thought to be the actual separation exam as there is a separate Bekesy card with enlistment exam." However, the examiner explained that when comparing all of these exams, there was no change at the time of separation and hearing was within normal limits bilaterally. In addition, the examiner stated that there was no evidence showing progression to a "compensable degree within one year of separation" and it was less likely as not that hearing loss was related to or caused by military service. The Board finds that the March 2012 VA examiner's opinion is inadequate. First, there is no indication that the audiometric findings were converted. In accordance with Board policy, prior to January 1, 1967, it is assumed that the ASA standard was used and between January 1, 1967 and December 31, 1970, data must be considered under both ASA and ISO-ANSI standards unless the audiograms indicate what standard was used. On the enlistment report of medical examination dated in February 1965, the findings were as follows for the right ear with the converted findings to the ISO-ANSI in parentheses: 0 decibels (dB) (15) at 500 Hertz, 0 dB (10) at 1000 Hertz, 0 dB (10) at 2000 Hertz, 0 dB (5) at 4000 Hertz, and the same findings for the left ear. On the January 1969 separation report of medical examination, it was noted that the ASA standard was used and the findings for the right ear were as follows: 0 dB (15) at 500 Hertz, 0 dB (10) at 1000 Hertz, 0 dB (10) at 2000 Hertz, 0 dB (10) at 3000 Hertz, 0 dB (5) at 4000 Hertz and 0 dB (10) at 6000 Hertz and the same for the left ear. As noted in the VA examiner's rationale, the service medical treatment records contain an undated automatic audiometer, which indicate higher thresholds in both ears. While the VA examiner noted the presence of the automatic audiometer, the examiner did not appear to reconcile such findings with the findings on the actual report of medical examination for separation, nor did the VA examiner consider the data under both ASA and ISO-ANSI standards. In addition, the examiner's rationale is flawed when noting as a basis for the negative nexus, that there was no "compensable" hearing loss within one year of active service. This reasoning is not a sufficient rationale for a negative opinion. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). As a result of the inadequate rationale for the expressed opinion, the Board finds that an addendum opinion is required to address the nature and etiology of the Veteran's bilateral hearing loss disability. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he complete and submit to VA a signed authorization for disclosure of medical records to VA for each private medical health care provider from whom he has received treatment for the heart disability or submit copies of his own private medical treatment records. The Board is specifically interested in records from Chattanooga Heart Institute and Memorial Hospital as identified by the Veteran during the March 2017 hearing. After receiving any completed authorization form(s), attempt to obtain the identified records. 2. Request an addendum opinion from the March 2012 VA audiologist, if available, or a suitably qualified examiner, to address the nature and etiology of the Veteran's bilateral hearing loss. The claims folder must be made available to the examiner and the examiner must indicate that the claims folder was reviewed. Following review of the claims folder, the examiner must address the following: *Is it at least as likely as not (50 percent probability or more) that any bilateral hearing loss disability had its onset in service or is otherwise related to his military service. A complete rationale must be provided for any opinion or conclusion expressed. The examiner must consider the Veteran credible with respect to his reports of exposure to acoustic trauma. In addition, the examiner must discuss and interpret the undated automatic audiometer under both ASA and ISO-ANSI standards. 3. After completing the requested development and any other development deemed necessary, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative a supplemental statement of the case, and afford an appropriate time period for response before the record is returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs