Citation Nr: 1727663	
Decision Date: 07/14/17    Archive Date: 07/25/17

DOCKET NO.  05-17 019	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for degenerative joint disease (DJD) and degenerative disc disease (DDD) of the lumbar spine.

2.  Entitlement to service connection for arthritis of the right knee to include as due to service-connected feet and ankle disabilities.

3.  Entitlement to service connection for arthritis of the left knee to include as due to service-connected feet and ankle disabilities.

4.  Entitlement to an initial, compensable rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion





ATTORNEY FOR THE BOARD

J. Connolly, Counsel


INTRODUCTION

The Veteran served on active duty from February 1977 to June 1995.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In pertinent part, in an August 2008 rating decision, the RO granted service connection and assigned an initial, noncompensable rating for bilateral hearing loss, effective April 8, 2005.  In a June 2009 rating decision, the RO, in pertinent part, denied service connection for DJD/DDD of the lumbar spine, chondromalacia of the right knee, and chondromalacia of the left knee.

In January 2016, the Board remanded the issues of service connection for DJD and DDD of the lumbar spine, chondromalacia of the knees, and entitlement to an initial compensable rating for bilateral hearing loss.  In separate decisions (January 2016 and December 2016), the Board addressed other issues appealed by the Veteran which currently are under development at the RO (entitlement to higher ratings for postoperative right and left plantar fasciitis with heel spurs; and entitlement to an initial rating in excess of 10 percent for residuals of a right toe injury, respectively).


FINDINGS OF FACT

1.  DDD and DJD of the low back as well as arthritis of the bilateral knees was not manifest during service or within one year of service and are not otherwise attributable to service; however, DDD and DJD of the low back and arthritis of the bilateral knees are etiologically related to service-connected feet and ankle disabilities.

2.  During the appeal period, at worse, the Veteran had Level I hearing in his right ear and Level II hearing in his left ear.


CONCLUSIONS OF LAW

1.  DDD and DJD of the low back were not incurred in or aggravated by service and arthritis may not be presumed to have been incurred or aggravated therein.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2016).  

2.  DDD and DJD of the low back are secondary to service-connected feet and ankle disabilities.  38 U.S.C.A. § 1101 (West 2014); 38 C.F.R. § 3.310 (2016).

3.  Bilateral knee arthritis was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred or aggravated therein.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2016).  

4.  Bilateral knee arthritis is secondary to service-connected feet and ankle disabilities.  38 U.S.C.A. § 1101 (West 2014); 38 C.F.R. § 3.310 (2016).  

5.  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. § 4.85, Part 4, Diagnostic Code 6100 (2016).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159.  Here, the Veteran was provided with the relevant notice and information.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim and all appropriate development was undertaken in this case.  The Veteran has not alleged any notice or development deficiency during the adjudication of the claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  

Service Connection 

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306.  

In addition, arthritis will be presumed to have been incurred in or aggravated by service if it becomes manifest to a degree of 10 percent or more within one year of a veteran's separation from service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  With chronic diseases shows as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date.  Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim.  38 C.F.R. § 3.303(b).  This regulation pertains to "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases).  Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013).  

The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b).  Walker, supra.  Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period."  Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation").  

Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

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(a).  A claim for secondary service connection generally requires competent evidence of a causal relationship between the service-connected disability and the nonservice-connected disease or injury.  Jones (Wayne L.) v. Brown, 7 Vet. App. 134 (1994).  There must be competent evidence of a current disability; evidence of a service-connected disability; and competent evidence of a nexus between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995).  

There must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  Additionally, when aggravation of a nonservice-connected disability is proximately due to or the result of a service connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Id.

Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor.  38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102.

The service treatment records (STRs) reflect that the Veteran reported left knee pain in April 1981.  The Veteran was subsequently in a motor vehicle accident in December 1988, but there was no report of injury to the low back or knees.  The separation examination yielded normal findings for the low back and knees.

In a June 2008 statement, Dr. C.B. indicated that the Veteran's chronically abnormal gait had accelerated the onset of the degenerative process in his spine and knees.  With regard to the Veteran's lumbar spine arthritis, Dr. C.B. also indicated that the lumbar spine disability was due to service and/or his lower extremity disabilities.  Dr. C.B. noted that the Veteran lifted heavy munitions during service, but did not identify any inservice incident or injury to the spine.  However, he did provide specific information that the Veteran had a chronically abnormal gait due to his lower extremity disabilities and the chronically abnormal gait and chronically abnormal gait placed abnormal forces across the lumbar spine segments.  The physician identified the acceleration forces with these movements which resulted in the degenerative process of the spine, and also noted that a result, the facets became sclerosed and the same changes were observed in the notches.  The facet articulations themselves developed degenerative changes including narrowing of the joint space loss of articular cartilage sclerosis irregularity and osteophyte formation.  These changes took place over a number of years.  The physician also addressed the disc injury.  He also stated that it was well known that injuries to the spine early in life often lead to advanced degenerative changes later in life due to the resultant chronic ligament laxity and spine instability.  With regard to his knees, Dr. C.B. described current knee disability.  He noted that the Veteran had experienced several years of an abnormal gait due to his service-connected foot problems for which he used a cane.  It was his opinion that the Veteran's current left and right knee degenerative arthritis was due to his chronic service related abnormal gait.

In April 2009, the Veteran was afforded a VA examination.  It was noted that the Veteran had been in an automobile accident in December 1988.  However, the examiner noted that there was no mention of low back or knee pain.  It was indicated that the Veteran reported having some knee pain bilaterally since his roll over accident.  The STRs reflected that he had left knee pain in 1981 located over the tibial tubercle, occurring after running.  The examiner stated that the STRs did not show a complaint of either knee related to his motor vehicle accident in 1988.  The examiner noted that the Veteran reported low back pain since June 1978, but the STRs were silent for any complaints of low back pain.  It was noted that the Veteran was in artillery and he had to do repetitive lifting of heavy artillery.  Physical examination yielded diagnoses of DDD and DJD of the lumbar spine as well as chondromalacia of the knees.  The examiner stated that it would be speculation to relate the current disabilities to service.  

In a December 2009 letter, Dr. C.B. indicated that the VA examiner had failed to address in the decision the Veteran' abnormal gait issues.  Thus, this physician indicated that the VA opinion was of little probative value.

In February 2010, a VA examiner indicated after the roll over accident in December 1988, the complaint at that time was only for the neck and the elbow.  There were no complaints of lumbar spine or knees which the examiner opined ruled out significant acute injury.  The STRs did not show any knee complaints related to the roll over accident.  The Veteran did not claim lumbar spine pain related to the accident during the examination interview.  The STRs were silent for treatment of low back pain and the Veteran was able to continue his military duties for an additional 5 1/2 years without complaint or being on a profile.  The separation examination did not have any complaints.  There was no chronicity established for any claimed condition.  The examiner felt that there was a lack of diagnosis, treatment, and chronicity while in service.  Further, the examiner noted that degenerative changes of the lumbar spine were common in the general population in their sixth decade; thus the examiner stated that relating this disability to service in this case was nothing more than speculation.  

The Veteran was examined again in August 2016 and a medical opinion was provided in September 2016.  The examiner indicated that the Veteran currently had moderate lumbosacral DDD/DJD with lower extremity radiculopathy, as well as moderate bilateral knee arthritis.  The etiology of these conditions was simple aging of the lumbosacral spine and knees.  It was less likely as not that the Veteran's current lower back and bilateral knee conditions had their clinical onset during service or were related to any in-service disease, event or injury.  It was also less likely as not that the Veteran's lumbosacral and bilateral knee arthritis was manifest during the initial post-service year.  It was also less likely as not that the Veteran's current lower back and bilateral knee disabilities were proximately due or the result of service-connected disabilities, including the lower extremities, neck and right shoulder.  It was also less likely as not that the Veteran's current lower back/bilateral knee disabilities were permanently aggravated by any service-connected disabilities, including the lower extremities, neck and right shoulder.  The examiner noted that the STRs only contained documentation for one visit in 1981 for a left knee complaint, with referral to physical therapy, and no further follow-up at that time.  The STRs also described a motor vehicle collision on December 12, 1988, with a diagnosis of contusions of the neck and left shoulder/elbow, but there was no mention whatsoever of any lower back injury at all.  There was mention of scabs/scrapes from the accident only at the at the left arm and the back of the neck.  The military separation physical examination in 1995 mentioned only foot and ankle issues, but no lower back or knee issues at all.  Thus, there was no clinical indication in 1995 that the incidents in 1981 and 1988 had led to any chronic issues with his left knee, neck, left shoulder or left elbow at all.  Then, the next mention in the record with regard to lower back issues was in 2001 at the Temple VA medical center, and for the knee issues is in 2008, a record review only by Dr. C.B. with subsequent visits to orthopedics in 2009-2010 in the civilian sector.  

Thus, the examiner stated that there was one isolated left knee problem in 1981 with no follow-up in service, and then no documentation until the 2000s.  There were no STRs for the lower back at all, and then the first mention afterwards was in 2001, 6 years after service discharge.  Thus, the Veteran's lumbosacral/bilateral knee DJD was not manifest within the initial post-service year at all.  With regard to causality due to the other service-connected disabilities, this was not anatomically plausible.  First of all, upper extremity/cervical spine abnormalities could not possibly lead to knee/lumbosacral spine DJD.  Bilateral foot issues also do not lead to knee or lumbosacral DJD; they might cause some referred transient discomfort, but do not lead to the development of DJD or DDD.  The current peer reviewed medical literature did not support a causal connection between upper extremity/cervical spine issues and the subsequent development of bilateral knee/lumbosacral spine pathology.  With regard to permanent aggravation by the service-connected disabilities, this was also less likely.  The Veteran's lumbosacral/bilateral knee DJD had taken a fairly typical progression of initial intermittent discomfort with minor imaging findings, to the current more chronic clinical picture with normal progression of imaging findings due to normal aging of the involved joints. 

In March 2017, the Veteran was afforded another examination.  The examiner reviewed the Veteran's lower extremity diagnoses including plantar fasciitis, tarsal tunnel syndrome, hypertrophic scarring of the right and left feet, severe degenerative joint disease with ankylosis of the right and left ankles as well as equinus of the feet.  The examiner noted that the problems with the Veteran's feet had been going on ever since he fractured his right ankle back in 1988.  The cast had been removed only days after the fracture and he had been without treatment ever since.  There was no doubt that the ankylosis worsened ever since and because of that he had developed other problems including not only problems with his feet, but with his knees, hips, back, and multiple joints.  

In sum, the STRs reflect one instance of left knee complaints in 1981 with no subsequent complaints, findings, treatment or diagnosis, to include following a December 1988 automobile accident.  There were no complaints, findings, treatment or diagnosis of right knee or low back disease or injury, to include following a December 1988 automobile accident.  The separation examination was normal.  Further, the Board may consider whether the silence of the Veteran in reporting complaints regarding knee and low back problems constitutes negative evidence.  See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom.  Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact).  In this case, it does constitute negative evidence.  There is not just a lack of evidence; rather, there is evidence showing normal findings.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); see also Dulin v. Mansfield, 250 Fed. Appx. 338, 2007 WL 2914797 (C.A. Fed. Oct. 5, 2007).  

In addition,  the absence of symptoms on separation interrupts continuity of symptomatology for the claimed arthritis condition in the knee and low back joints and also is inconsistent with the Veteran's report of ongoing medical problems with his knees and low back from his claimed time of inception during service and thereafter.  38 C.F.R. § 3.303(b); Maxson (It was proper to consider the Veteran's entire medical history, including a lengthy period of absence of complaints.).  The absence of symptoms constitutes negative evidence and opposes the claim.  Forshey (Negative evidence is to be considered.); see also Dulin (The majority in Forshey interpreted negative evidence to mean that "which tends to disprove the existence of an alleged fact.  The absence of evidence in support of an alleged fact clearly is an evidentiary circumstance that weighs against the existence of the alleged fact).  In this case, the clinical records do not show the claimed ongoing nature of residuals of the left knee incident or the automobile accident.  Significantly, the Veteran was treated for other medical problems including those resulting from the automobile accident with no corresponding report regarding the knees or low back.

There are also medical opinions of record.  In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ( "[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

D. C.B. provided a positive medical opinion for direct service connection, but his rationale was not as complete as the review of the pertinent records and explanation of the September 2016 VA medical opinion.  The VA examiner was aware of the Veteran's medical history, provided a fully articulated opinion, and also furnished a reasoned analysis.  The Board therefore attaches significant probative value to this opinion, and the most probative value in this case, as it is well reasoned, detailed, consistent with other evidence of record, and included a review of the background of the Veteran.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). 

The Board has considered the Veteran's own opinion that his knee and low back disabilities are related to service.  However, as a lay person in the field of medicine, the Veteran does not have the training or expertise to render a competent opinion which is more probative than the VA examiner's opinion on this issue, as this is a medical determination that is complex.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)).  Thus, the Veteran's opinion by itself is outweighed by the findings to the contrary by the VA examiner, a medical professional who considered the pertinent evidence of record and found against such a relationship.  See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation).

Accordingly, as the most probative evidence establishes that there is no causal connection between current knee and low back disabilities and service and because arthritis was not manifest in the initial post-service year, service connection is not warranted on a direct basis or presumptively.  

However, the Board notes that both Dr. C.B. and the March 2017 VA examiner provided positive opinions regarding secondary service connection.  In support of these opinions is the fact that the Veteran is service-connected for several significant foot disabilities.  Although the September 2016 opinion indicated that there was no aggravation, the rationale provided is outweighed by the cumulative explanations of the positive opinions which are more extensive.  Accordingly, service connection for knee and low back disabilities is warranted on a secondary basis, due to service-connected feet and ankle disabilities.

Rating

Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  The Veteran's entire history is reviewed when making disability evaluations.  See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Before proceeding with its analysis of the Veteran's claim, the Board finds that some discussion of Fenderson v. West, 12 Vet. App 119 (1999) is warranted.  In that case, the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which a veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected.  VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating."  See also Hart v. Mansfield, 21 Vet. App. 505 (2007).  In this case, staged ratings are warranted.

In evaluating service-connected hearing impairment, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  The schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment.  Testing for hearing loss is conducted by a state-licensed audiologist, including a controlled speech discrimination test (Maryland CNC).

The evaluation is based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  See 38 C.F.R. § 4.85.  Table VII in the schedule is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear, the horizontal rows representing the ear having better hearing and the vertical columns the ear having the poorer hearing.  The percentage evaluation is indicated where the row and column intersect.  Table VIa is used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86.  See 38 C.F.R. § 4.85(c).  When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  Each ear will be evaluated separately.  See 38 C.F.R. § 4.86(a).  When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  See 38 C.F.R. § 4.86(b).

There are several audiograms of record pertinent to rating the Veteran's bilateral hearing loss; otherwise medical records note that he has hearing loss but do not provide the actual audiogram findings.

The Veteran was afforded a VA audiological examination in October 2004.  On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows:




HERTZ


\
1000
2000
3000
4000
average
RIGHT
15
15
25
30
21
LEFT
20
20
25
30
24

Speech audiometry revealed speech recognition ability of 96 percent both ears.  The examiner indicated that the Veteran had mild sensorineural hearing loss.

Under the rating criteria, the examination results constitute Level I hearing in both ears.  When considered together, the result is a noncompensable or 0 percent disability evaluation.  Further, the Board finds that 38 C.F.R. § 4.86(a) is not for application because the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is not 55 decibels or more.  The Board further finds that 38 C.F.R. § 4.86(b) is not for application as the puretone threshold is not 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz.

The Veteran was subsequently examined by a private audiologist in April 2005.  Puretone thresholds, in decibels, were as follows:




HERTZ


\
1000
2000
3000
4000
average
RIGHT
15
25
40
40
30
LEFT
30
45
50
60
46.25

Speech recognition ability scores were not provided.  The examiner indicated that the Veteran had sensorineural hearing loss. This examination is inadequate for rating purposes as it is not in compliance with the provisions of 38 C.F.R. § 4.85(a).

In May 2010, the Veteran was afforded another VA audiological examination, but the examiner indicated that the Veteran was uncooperative and his hearing ability at Hertz levels could not be determined.  Thereafter and upon remand, in August 2016, the Veteran was afforded another VA audiological examination.  On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
average
RIGHT
25
30
35
40
33
LEFT
25
40
50
55
43

Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 88 percent in the left ear.  The examiner indicated that the Veteran had sensorineural hearing loss.  The functional impact of the hearing loss in the way that it impacted his ordinary conditions of daily life was that the Veteran had trouble hearing, especially out of his left ear, and it was worsening.  

Under the rating criteria, the examination results constitute Level I hearing in the right ear and Level II in the left ear.  When considered together, the result is a noncompensable or 0 percent disability evaluation.  Further, the Board finds that 38 C.F.R. § 4.86(a) is not for application because the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is not 55 decibels or more.  The Board further finds that 38 C.F.R. § 4.86(b) is not for application as the puretone threshold is not 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz.

The Board acknowledges the Veteran's contentions regarding his difficulty hearing, however, the audiology examination yielded results warranting a noncompensable rating throughout the appeal period.  Thus, while the Board has considered the Veteran's assertions as to worsening hearing loss, the Board must accord greater weight to the objective clinical findings that continue to show that the Veteran's hearing remains in the range of a noncompensable hearing loss under the Rating Schedule.  

In Martinak v. Nicholson, 21 Vet. App. 447 (2007) the United States Court of Appeals for Veterans Claims (Court) held that 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, 21 Vet. App. at 455.  The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  In this case, VA examiners noted that the functional impact of the Veteran's hearing loss was that the Veteran has difficulty hearing and that his hearing has in fact worsened, but not to a compensable degree.  However, this alone does not prohibit his ability to work as this was not noted nor shown based on noncompensable hearing loss.  

The Veteran's representative has argued that the testing was not performed in an appropriate environment.  However, VA regulations set forth specific requirements for the conduct of audiology examinations used to rate hearing loss.  38 C.F.R. §4.85(a); see also 38 C.F.R. § 4.85(b)-(d) (2006).  The representative has not identified the way in which the VA examination failed to comply with the regulatory requirements.  Those regulations anticipate that examinations will be conducted in a controlled environment.  59 Fed. Reg. 17296 (Apr. 12, 1994).  They also recognized that in certain exceptional circumstances examinations in a controlled environment would not adequately portray the level of hearing impairment under ordinary conditions of life.  Id.  For that reason, VA adopted 38 C.F.R. § 4.86 to evaluate those exceptional patterns of hearing loss.  Id.  The representative has not cited any authority for the proposition that testing in a soundproof room or controlled sound environment is inadequate to determine the effects of hearing loss under the ordinary conditions of life absent an exceptional pattern of hearing loss.  In any event, the precise conduct of hearing examinations is the province of state licensed audiologists who possess the necessary expertise to determine how best to conduct hearing examinations.  The Board does not possess the necessary expertise to second guess those determinations except to ensure that the examinations are conducted in accordance with the requirements of the regulations.

Further, in Martinak, the Court addressed VA's policy of conducting all audiometry testing of hearing-loss claimants in a sound-controlled room and whether that practice is valid.  With respect to this matter, in that case, the appellant argued that VA's policy of conducting audiometry testing in a sound-controlled room is an erroneous interpretation of, or is otherwise inconsistent with, VA's medical examination regulations.  In rejecting this argument, the Court noted that the appellant offered no expert medical evidence demonstrating that an audiometry test conducted in a sound-controlled room produces inaccurate, misleading, or clinically unacceptable test results.  The Court also noted that appellant did not offer any expert medical evidence demonstrating that an alternative testing method exists and that this method is in use by the general medical community.  The Court instead found that the appellant simply offered his own unsubstantiated lay opinion as to the impropriety of testing in a sound-controlled room, and that VA's policy of conducting examinations in a sound-controlled room cannot be invalidated on this basis.  

Moreover, it is essential to note that during the pendency of this appeal, the Court recently held that "the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA's audiometric tests are designed to measure."  Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319 (Vet. App. March 17, 2017).  The Court further stated that when a Veteran's "hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria."  Id.

The Board in no way discounts the difficulties that the Veteran experiences as a result of his hearing loss.  However, as was explained above, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained.  Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology results of record.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  In this case, the preponderance of the evidence is against a compensable rating.  


ORDER

Service connection for DJD and DDD of the lumbar spine as secondary to service-connected feet and ankle disabilities is granted.  

Service connection for arthritis of the right knee as secondary to service-connected feet and ankle disabilities is granted.  

Service connection for arthritis of the left knee as secondary to service-connected feet and ankle disabilities is granted.  

Entitlement to an initial, compensable rating for bilateral hearing loss is denied.




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs