Citation Nr: 1801307	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  13-23 619	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to an initial rating in excess of 10 percent for a right knee disability.

2. Entitlement to service connection for bilateral hearing loss.

3. Entitlement to service connection for tinnitus.


ATTORNEY FOR THE BOARD

Robert A. Elliott II, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the Air Force from February 1983 to December 1989.

This matter comes before the Board of Veteran's Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In December 2016, the Board remanded the Veteran's claim for further development.  Specifically, to afford the Veteran another opportunity to appear for a hearing.  The hearing was rescheduled for March 2017, and the Veteran, without explanation failed to report for it.  In fact, the record indicates it has been many years since the Veteran communicated with the regional office.  In view of this, it is concluded the agency of original jurisdiction (AOJ) substantially complied with the December 2016 remand directives, and the Board will proceed to a decision based on the evidence presently before it.  


FINDINGS OF FACT

1.  The evidence of record shows that the Veteran's right knee is productive of painful limitation of flexion to 130 degrees, with full extension. 

2. Current bilateral hearing loss disability for VA purposes has not been shown during the pendency of this appeal.

3. Current tinnitus is not caused or aggravated by a disease or injury in active service.


CONCLUSIONS OF LAW

1. The requirements for an initial evaluation higher than 10 percent for right knee disability have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.159, 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260 (2017).


2. The criteria for service connection for bilateral hearing loss have not been met.
38 U.S.C. §§ 1110, 1112, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017)

3. The criteria for service connection for tinnitus have not been met.  38 U.S.C. §§ 1110, 1131, 5107(b) (West 2012); 38 C.F.R. § 3.102, 3.303 (2017)


REASONS AND BASES FOR FINDINGS AND CONCLUSION

 Increased Rating 

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.

For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment.  The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain.  Such inquiry is not to be limited to muscles or nerves.  These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain.  DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997).

Diagnostic Code 5260, limitation of flexion of the leg, provides for a noncompensable rating for flexion limited to 60 degrees; a 10 percent rating for flexion limited to 45 degrees; a 20 percent rating for flexion limited to 30 degrees; and a 30 percent rating for flexion limited to 15 degrees.  38 C.F.R. § 4.71a.  A 30 percent disability rating is the highest available under Diagnostic Code 5260.  38 C.F.R. § 4.71a.

Diagnostic Code 5261, limitation of extension of the leg, provides for a noncompensable rating for extension limited to 5 degrees; a 10 percent rating for extension limited to 10 degrees; a 20 percent rating for extension limited to 15 degrees; a 30 percent rating for extension limited to 20 degrees; a 40 percent rating for extension limited to 30 degrees; and a 50 percent rating for extension limited to 45 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5261. 

Standard range of motion of a knee is from 0 degrees of extension to 140 degrees of flexion.  38 C.F.R. § 4.71, Plate II.

Under Diagnostic Code 5257, other impairment of the knee, a 10 percent rating is warranted where there is slight recurrent subluxation or lateral instability.  A 20 percent rating requires moderate recurrent subluxation or lateral instability.  A 30 percent rating requires severe recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a, Diagnostic Code 5257. 

Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. 4.6.  Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.

In May 2010, the Veteran attended a Joints VA examination.  X-rays during this examination showed chronic appearing complete anterior cruciate ligament tear partial meniscectomy changes tendinosis in the distal quadriceps tendon and mild synovitis.  There was mild loss of cartilage in all 3 joint compartments consistent with mild osteoarthritis.  The Veteran complained that there was knee instability, but none was found when the knee was specifically examined.  The Veteran also mentioned experiencing weekly flare-ups of moderate severity with duration of 1-2 days, but at the same time advised there was no additional limitation of movement with flare up.  He also reported he had not missed any work (he is an airline pilot), and can walk up to 2 miles.  Formal examination revealed right knee flexion to 130 degrees with full right knee extension.  Further, while there was discomfort with repetitive motion, there was no additional limitations on range of motion, and no ankylosis was noted. 

As indicated in the Introduction, it does not appear that the Veteran has had any personal communication with VA since this time.  

Based on this record, the Board concludes that an increased rating for the Veteran's right knee disability is not warranted.  The May 2010 examiner noted no right knee instability, and despite the discomfort present, the Veteran himself confided there was no additional loss of motion during any flare-up, and he has not missed any work.  Further, review of the evidence of record does not reveal flexion limited to 30 degrees, as to meet the requirement for a higher rating under DC 5260.  As well, there is full extension of the right knee; therefore Veteran's disability does not meet the requirement for a compensable rating under DC 5261.  There also was no instability when formally examined, which finding is considered more probative than the subjective complaint.  As such, the record does not support a separate evaluation under code 5257.  

III. Service Connection

In order to obtain service connection the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, i.e., a "nexus."  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

In addition, certain listed chronic diseases, such as tinnitus and sensorineural hearing loss, as diseases of the nervous system, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service.  38 U.S.C.A. §§ 1101, 1112; Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.307(a)(3), 3.309(a).

An alternative method of establishing incurrence or aggravation and a nexus to service is through a demonstration of continuity of symptomatology.  38 C.F.R. § 3.303(b).  Continuity of symptomatology may be established if a claimant can demonstrate that a condition was noted during service; (2) there is a post- service continuity of the same symptomatology; and (3) a nexus between the present disability and the post-service symptomatology.  The theory of continuity of symptomatology can be used only in cases involving those diseases explicitly recognized as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

A. Bilateral hearing loss

The Veteran contends that he has hearing loss from exposure to acoustic trauma from flight line noise, jet engines, helicopters, and other equipment.  See March 2010 Statement in Support of Claim. 

In May 2010, the Veteran attended a VA audio examination.  The examiner noted that there was no VA or outside medical records to review.  Further, the examiner noted that serial audiograms document normal hearing for every year from 1981 to 1989 during the Veteran's active duty service as a tanker pilot.  Upon examination, puretone thresholds for the right and left ear, in decibels, were as follows:




HERTZ



500 
1000
2000
3000
4000
RIGHT
10
10
10
15
15









HERTZ



500
1000
2000
3000
4000
LEFT
10
10
5
15
10







Further, the examiner noted a Maryland CNC Test score of 96 percent for both ears. 

After a review of all of the evidence, the Board finds that the Veteran does not have a current hearing loss disability as defined for VA purposes.  As there is no current disability at any time pertinent to the claim on appeal, the basic service connection requirements are not met, and the Board concludes that service connection for bilateral hearing loss is not warranted.  See McClain, 21 Vet. App. 319 (2007), Gilpin, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, 3 Vet. App. 223, 225 (1992).

B. Tinnitus 

The Veteran contends that has tinnitus from his exposure to acoustic trauma from flight line noise, jet engines, helicopters, and other equipment during service.  See March 2010 Statement in Support of Claim.

With regard to the first element of service connection, current diagnosis, records indicate a diagnosis of tinnitus for VA rating purposes.  See May 2010 VA examination.

With regard to the second element of service connection, in-service incurrence or aggravation of a disease or injury, the Veteran's service treatment records are negative of a diagnosis or complaint of tinnitus.  Nevertheless, it is obvious the Veteran would have been exposed to the sounds he describes.  In May 2010, the Veteran attended a VA hearing examination.  The Veteran stated that he is currently a commercial pilot and that his "wife yells at him and he cannot hear in a noisy environment."  The Veteran reported the onset of his tinnitus "began 10 or 15 years ago", and the examiner essentially expressed the view the Veteran's tinnitus was not due to or as a result of in service noise exposure as the onset of symptoms was removed from military service and there has been on-going occupational or recreational noise exposure contemporaneous with the on-set to account for it.   

The Board finds that the preponderance of the evidence is against the claim.  The May 2010 VA opinion is the most probative evidence of record.  The VA opinion provider is qualified through education, training, and experience to offer medical diagnoses, statements, or opinions.  Moreover, the opinion reflects consideration of the Veteran's history, to include his in-service and post-service noise exposure.  Notably, there is no medical opinion of record to the contrary.  Therefore, the Board accords great probative weight to this opinion.

The Board acknowledges the Veteran's contention that his tinnitus is related to his military service.  However, the Veteran reported the onset of symptoms post service, and there is no clear report of a continuity of symptomatology dating back to service.  The Veteran's in service noise exposure is not in dispute, but the most probative evidence is that the tinnitus is not from any in-service disease or injury, but rather a consequence of post service noise exposure 

Although disabilities of the nervous system, including sensorineural hearing loss and tinnitus, are subject to presumptive service connection; service connection would not be warranted unless the tinnitus manifested to a compensable degree within a year of the Veteran's release from active service in December 1989, or if he exhibited a continuity of symptomatology since that time.  In this case, there is no evidence of tinnitus manifested to a compensable degree within one year from discharge.  As previously noted, there has been no showing of a continuity of symptomatology. 

Ultimately, the weight of the evidence is against finding a continuity of symptoms of tinnitus dating back to service or a presumptive period; because the VA examiner provided a well-supported opinion that the tinnitus was more likely to be related to post service occupational noise exposure; and the record contains the Veteran's report that tinnitus began about 10-15 years prior to his current claim and years after service.

In conclusion, the weight of the evidence is against the claims for service connection for tinnitus.  Reasonable doubt does not arise and the claim is denied.  See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra.


ORDER

Entitlement to an initial rating in excess of 10 percent for a right knee disability is denied.

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for tinnitus is denied. 



____________________________________________
M. E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs