Citation Nr: 1803332	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  14-22 627	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

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

2. Entitlement to service connection for left knee osteoarthritis.  


REPRESENTATION

The Veteran represented by:   The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran





ATTORNEY FOR THE BOARD

I. M. Hitchcock, Associate Counsel 


INTRODUCTION

The Veteran served honorably from October 1969 to July 1990.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah.  Jurisdiction was subsequently transferred to the Los Angeles, California RO.

In August 2017, the Veteran testified at a video conference hearing before the undersigned Veteran's Law Judge (VLJ).  A transcript of this hearing has been associated with the claims file.  

The issue of entitlement to service connection for left knee osteoarthritis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

As of August 1, 2017, but no earlier, the Veteran's bilateral hearing loss results in no worse than Level V hearing acuity in the right ear and Level VI hearing acuity in the left ear. 


CONCLUSION OF LAW

Entitlement to an increase to a 30 percent rating, but no higher, for bilateral hearing loss has been met as of August 1, 2017, but no earlier. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321(b), Part 4, including §§ 4.7, 4.85, Diagnostic Code 6100 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

The present appeal involves the issue of entitlement to an increased rating for the Veteran's service-connected bilateral hearing loss.  The Veteran has generally asserted that his hearing loss is worse than the currently assigned disability rating reflects.  

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4.  The Rating Schedule provides a table to evaluate hearing impairment for ratings purposes. Table VI is used to determine a Roman numeral designation (I through XI), established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and 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 is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  Id.

A zero percent evaluation is provided where hearing in the better ear is I and hearing in the poorer ear is I through IX; where hearing in the better ear is II, and hearing in the poorer ear is II to IV; or where there is level III hearing in both ears. 38 C.F.R.  § 4.85, Table VII, Diagnostic Code 6100.  A 10 percent evaluation is provided where hearing in the better ear is I and hearing in the poorer ear is X and XI; where hearing in the better ear is II and hearing in the poorer ear is V to XI; where hearing in the better ear is III and hearing in the poorer ear is IV to VI; or where hearing in the better ear is IV and hearing in the poorer ear IV to V.  38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.  The next higher evaluation of 20 percent is provided where hearing in the better ear is III and hearing in the poorer ear is VII to XI; where hearing in the better ear is IV and hearing in the poorer ear is VI to VII; or where hearing in the better ear is V and hearing in the poorer ear V and VI. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100.  Higher evaluations are available for more severe hearing loss.  

Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The Veteran was previously found to be service connected for bilateral hearing loss in June 1996 and assigned a noncompensable rating at that time.  The Veteran filed for an increase in the rating of his bilateral hearing loss in October 2011.

In connection with his claim, he was afforded a VA examination in November 2011.  At that time, audiometric testing revealed the following:




HERTZ



1000
2000
3000
4000
Average
RIGHT
50
60
70
60
60
LEFT
45
60
65
60
57

Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 88 percent in the left ear.  
	
At the time of the January 2017 VA audiological examination, the Veteran was shown to have an average puretone hearing loss of 60 decibels in the right ear, with 84 percent speech discrimination, which translates to a Roman numeral designation of III for the right ear.  Further, the Veteran was shown to have an average puretone hearing loss of 57 decibels in the left ear, with 88 percent speech discrimination, which translates to a Roman numeral designation of II for the left ear.  Thus, when applying Table VII, Diagnostic Code 6100, Level III for the right ear and Level II for the left ear equates to a zero percent disability evaluation.  

VA and private treatment records have also been reviewed and considered.  However, these records do not provide audiological evaluations for rating purposes.  

The only medical record that provides any audiological data for evaluation and rating purposes comes from a private audiological opinion from Dr. W provided in August 2017. At that time, audiometric testing revealed the following:




HERTZ



1000
2000
3000
4000
Average
RIGHT
55
70
75
75
69
LEFT
55
75
70
75
69

Speech audiometry revealed speech recognition ability of 60 percent in the right ear and 74 percent in the left ear.
	
The Veteran was shown to have an average puretone hearing loss of 69 decibels in the right ear, with 60 percent speech discrimination, which translates to a Roman numeral designation of VII for the right ear.  Further, the Veteran was shown to have an average puretone hearing loss of 69 decibels in the left ear, with 74 percent speech discrimination, which translates to a Roman numeral designation of VI for the left ear.  Thus, when applying Table VII, Diagnostic Code 6100, Level VII for the right ear and Level VI for the left ear equates to a 30 percent disability evaluation.  

Based on the average puretone threshold findings from the August 2017 examination, when applying Table VII, Diagnostic Code 6100, the findings equate to a 30 percent disability rating, but no higher, from August 1, 2017, but not before that date.  Again, VA and private clinical records during this period do not address the severity Veteran's bilateral hearing loss.  There is simply no evidence to show that the Veteran met the rating criteria for a compensable rating at any point up until the recent evaluation.  

The Board acknowledges the contentions put forth by the Veteran regarding the impact of his service-connected bilateral hearing loss on his daily activities.  However, while he can describe the effects on his activities, he is not competent to report findings for rating purposes, as the evaluation must be done by a state-licensed audiologist.  Further, the examination report and the Veteran's statements discussed the functional effects of the Veteran's hearing loss disability.  Thus, the functional effects of the Veteran's hearing loss disability are contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017); See Martinak v. Nicholson, 21 Vet. App. 447 (2007) (requiring examinations to include assessments of the impact of hearing loss on daily activities).  

In conclusion, because assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to assign. Lendenmann, supra, 3 Vet. App. 345; 38 C.F.R. § 4.85, Tables VI, VIA and VII, Diagnostic Code 6100.  Applying the VA audiological test results from the August 2017 private audiological evaluation, the Board is compelled to conclude that the preponderance of the evidence supports entitlement to a rating in excess of 30 percent for bilateral hearing loss, after August 1, 2017.  

The Board has considered whether staged ratings are appropriate.  See Fenderson v. West, 12 Vet. App. 119 (1999). However, the Board finds that the Veteran's symptomatology has been stable throughout the appeal period and there is no audiological data that indicates an increase was warranted until August 1, 2017.  Therefore, assigning staged ratings for such disability is not warranted. 

The Board has also considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against a higher rating for the Veteran's bilateral hearing loss at any point prior to the August 2017 examination and above 30 percent after August 1, 2017.  Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

ORDER

Entitlement to an increase to a 30 percent rating, but no higher, for bilateral hearing loss have been met as of August 1, 2017.


REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

At the hearing, the Veteran asserted that in his work duties as a hospital corpsman, he had to quickly jump on and off vehicles, sometimes at heights, and his knees would bang against the vehicles when he was climbing onto the vehicles.  Further, the Veteran testified that he was in two accidents, one in 1969 and the other in 1975.  In the 1975 accident, the Veteran asserted that a vehicle rolled onto both of his legs, pinning him down.  The Veteran also asserted that due to his right knee osteoarthritis, which is now service-connected, he has had to put additional pressure on his left knee due to walking with a cane and weight-bearing. 

In statements to the VA, the Veteran has further asserted that he was diagnosed with bilateral knee osteoarthritis in the early-to-mid-1990's and that he had an arthroscope on his left knee in 1995 or 1996.  

A review of the Veteran's service treatment records, corroborate the two accidents. In December 1969, the Veteran sought treatment after he fell off a truck.  In April 1975, the Veteran was in an automobile accident.  However, in both records, the Veteran only reported injuries to his right side.  There are further complaints throughout the record concerning the Veteran's bilateral lower extremities; however, the Veteran's left knee is not mentioned.  

The Veteran was afforded a VA examination in connection with his claim for service connection for left knee osteoarthritis in January 2012.  After examination, the VA examiner found that the Veteran's left knee issues could not be service-connected because there are no service treatment records to substantiate his claim.  

However, the VA examiner did not consider the Veteran's specific allegations in his consideration of whether the Veteran's left knee osteoarthritis is connected to service.  Specifically, the examiner did not consider whether the trauma of the two accidents or the Veteran's duties while in service could have caused left knee osteoarthritis.  Further, the examiner did not consider whether the impact of the Veteran's service-connected right knee osteoarthritis could have caused or aggravated the Veteran's left knee osteoarthritis beyond its natural progression.  In addition, the Veteran has identified additional records that may establish an earlier diagnosis of osteoarthritis in his left knee and, therefore, he should be given an opportunity to obtain those records. 

Accordingly, the case is REMANDED for the following action:

1. Obtain any outstanding, pertinent VA treatment records and associate them with the Veteran's claims file.  Further, the Veteran should identify any outstanding non-VA health care providers from whom he sought treatment for his left knee. The AOJ should attempt to obtain these records, consistent with the provisions of 38 C.F.R. § 3.159.

2.   Schedule the Veteran for a VA examination for the purpose of determining the nature, etiology and severity of his left knee osteoarthritis.  The claims file must be made available to the examiner for review in connection with the examination.  Following a review of the relevant evidence, to include the claims file, service treatment records, post-service treatment records; a history obtained from the Veteran, the clinical evaluation, and any tests that are deemed necessary, the examiner should opine:  

(a)  Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's left knee osteoarthritis began during or is causally related to service, to include whether it was caused by his duties as a hospital corpsman or as due to accidents in either December 1969 or April 1975.  

(b)  Whether it is at least as likely as not (a 50 percent or greater probability) that left knee osteoarthritis began during or is causally related to service, to include whether it was caused or aggravated beyond its natural progression by his right knee osteoarthritis.  

A complete answer should address the Veteran's lay statements, including his history of symptoms and treatment.

The examiner must also recognize that the fact that there was no diagnosis of osteoarthritis in service is not, by itself, a sufficient reason to deny service connection for left knee osteoarthritis.  

The examiner must include in the medical report the rationale for any opinion expressed, based on the reviewer's clinical experience, medical expertise, and established medical principles.  However, if the examiner cannot respond to an inquiry without resorting to mere speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, stating what, if any, additional evidence would permit such an opinion to be made.

3.  Thereafter, the AOJ should review the claims file to ensure that the foregoing requested development has been completed.  In particular, the requested medical opinion should be reviewed to ensure that it is responsive to, and in complete compliance with, the directives of this remand.  If not, appropriate corrective action should be taken.

4.  After completing the above, and conducting any additional development deemed necessary, readjudicate the Veteran's claims for entitlement to service connection for left knee osteoarthritis in light of all additional evidence received.  If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



______________________________________________
L. M. BARNARD 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs