Citation Nr: 18140288 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-04 995 DATE: October 2, 2018 ORDER Entitlement to a compensable disability rating for bilateral hearing loss is denied. Entitlement to an initial 10 percent disability rating for residual scarring of the right shoulder is granted. REMANDED The claim of entitlement to an initial disability rating in excess of 20 percent for a right shoulder disorder is remanded. The claim of entitlement to a disability rating in excess of 10 percent for a right knee disorder is remanded. The claim of entitlement to a disability rating in excess of 10 percent for a left knee disorder is remanded. FINDINGS OF FACT 1. At its worst, the Veteran’s hearing loss was level I hearing acuity in the right ear and level I hearing acuity in the left ear. 2. With resolution of reasonable doubt in the Veteran’s favor, the Veteran’s right upper extremity scar is manifested by complaints of tenderness. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.85, Diagnostic Code 6100 (2018). 2. The criteria for an initial rating of 10 percent, but no higher, for a residual scar of the right shoulder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes (DCs) 7800-7805 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1981 to February 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March and May 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office. The Veteran testified before the undersigned Veterans Law Judge in an August 2017 hearing. A transcript of this hearing is of record. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2018). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2018). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran’s favor. 38 C.F.R. § 4.3 (2018). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2018). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. 1. Entitlement to a compensable disability rating for bilateral hearing loss Evaluations of bilateral defective hearing range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from bilateral service-connected defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, Tables VI and VII, Diagnostic Codes 6100 (2018). Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenman v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, 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. 38 C.F.R. § 4.86(a). Further, when the average 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). Table VIa will be 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. 38 C.F.R. § 4.85(c). On VA audiological evaluation in January 2014, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 25 45 55 LEFT 25 35 50 50 The puretone threshold average was 38 in the right ear and 40 in the left ear. Speech audiometry testing revealed speech recognition ability of 100 percent in the right ear and 99 percent in the left ear. Using Table VI, these audiometric findings equate to Level I hearing in both right and left ears. When those values are applied to Table VII, the result is a noncompensable evaluation. On VA audiological evaluation in November 2015 the Veteran reported that his hearing had worsened. He had difficulty understanding the television and speech around any noise. On examination, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 25 55 65 LEFT 30 50 60 55 The puretone threshold average was 44 in the right ear and 49 in the left ear. Speech audiometry testing revealed speech recognition ability of 98 percent bilaterally. Using Table VI, these audiometric findings equate to Level I hearing in both right and left ears. When those values are applied to Table VII, the result is, again, a noncompensable evaluation. At the August 2017 hearing, the Veteran testified that in some rooms with noise he is unable to distinguish voices. Generally, he described experiencing difficulty in hearing people talking to him in various environments. As the schedular disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained, no higher evaluation is warranted by the evidence of record. Additionally, the Veteran’s hearing impairment does not exhibit an exceptional pattern of hearing loss. 38 C.F.R. § 4.86. Accordingly, after a review of the evidence the Board finds that a preponderance of the evidence is against a finding that the service-connected bilateral hearing loss warrants a compensable rating during the period on appeal. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.85, DC 6100; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an initial compensable disability rating for residual scarring of the right shoulder The Veteran is in receipt of a noncompensable rating for his scar under DC 7804, effective February 27, 2013. Under DC 7804, which evaluates unstable or painful scars, a 10 percent rating is warranted for one or two scars that are unstable or painful. Three or four scars that are unstable or painful warrant a 20 percent rating. 38 C.F.R. § 4.118. The Board will consider other potential diagnostic codes for rating the Veteran’s scar. Because the scar is on the right upper extremity, the criteria used to evaluate scars of the head, face, or neck are not applicable. 38 C.F.R. §§ 4.118, DC 7800. Under DC 7801, a 10 percent rating is warranted for scars that are deep and nonlinear in an area or areas exceeding 6 square inches (39 square centimeters). Under DC 7802, a 10 percent rating is warranted for scars that are superficial and nonlinear in an area or areas of 144 square inches (929 square centimeters) or greater. Under DC 7805, any other scars, including linear scars, are to rated based on any disabling effect(s). VA provided an examination in January 2014 for the Veteran’s postsurgical right shoulder scar. The examination report indicated that the scar was neither painful nor unstable. The scar measured 15 centimeters by 1 centimeter, and the examiner reported that it was superficial, non-linear. The scar’s surface area was approximately 15 square centimeters. During the August 2017 hearing, the Veteran testified that if the scar is touched it is tender. He indicated that the scar has always been tender to the touch. The evidence is otherwise silent regarding symptoms attributable to the Veteran’s scar. The Board finds that the Veteran has provided competent and credible evidence, such as his statements during the August 2017 hearing, that his right upper extremity scar has been painful throughout the entire rating period on appeal. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996). The Board resolves reasonable doubt in his favor by finding that the Veteran’s right lower extremity scar was painful or tender during the appeal period. Thus, with regard to applying the diagnostic criteria in effect at the time of the Veteran’s claim, a 10 percent disability rating is warranted under DC 7804. No higher evaluation, however, is warranted. Throughout the entire appeal period, as the Veteran’s scar is not deep, a rating in excess of 10 percent is not warranted under DC 7801. Consideration under DC 7802 is of no benefit to the Veteran as the maximum rating allowed under that diagnostic code is 10 percent. As the Veteran’s right shoulder scar does not involve three or more scars, a rating in excess of 10 percent is not warranted under DC 7804. As for the revised DC 7805, the Veteran’s scars have been evaluated under Diagnostic Code 7804, and there are no other disabling effects to be considered. The rating criteria for skin disabilities were revised effective August 13, 2018. The provisions of DC 7804 did not change. DCs 7801 and 7802 do not provide a basis for an increased rating. DC 7805, as noted above, does also not provide a basis for an increased or additional rating, as there are no other disabling effects of the scar. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 20 percent for a right shoulder disorder. 2. Entitlement to a disability rating in excess of 10 percent for a right knee disorder. 3. Entitlement to a disability rating in excess of 10 percent for a left knee disorder. Remand is required to provide current and adequate VA examinations for the Veteran’s orthopedic disabilities on appeal. When a claimant asserts, or the evidence shows, that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). In increased evaluation claims, VA examinations for musculoskeletal conditions must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59 (2018); Correia v. McDonald, 28 Vet. App. 158 (2016). In increased evaluation claims, a VA examination report is not adequate without an explanation for an examiner’s failure to evaluate the functional effects of a flare-up. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board may accept a VA examiner’s statement that he or she cannot offer an opinion in that regard without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner’s shortcomings or general aversion to offering an opinion on issues not directly observed. Although not binding on VA examiners, the VA Clinician’s Guide instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves. Sharp, 29 Vet. App. at 34-35, citing VA CLINICIAN’S GUIDE, ch. 11. For example, a VA examination report is not adequate when the VA examiner failed to elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record - including the veteran’s lay information - or explain why she or he could not do so. Sharp, 29 Vet. App. at 34-35. Regarding the Veteran’s right shoulder, VA last provided an examination in November 2015. In addition to the examination findings not being compliant with the holdings in Correia and Sharp, the Veteran testified in the August 2017 hearing that his right shoulder disorder had worsened. In light of such testimony and the evidence of record, a new and adequate examination is warranted. Regarding the Veteran’s claimed bilateral knee disorders, the last VA examination conducted for these conditions was in November 2015. This examination is similarly deficient insofar as it does not comply with the Court’s holdings in Correia and Sharp. Accordingly, remand is appropriate for a new examination. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center(s) and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected right shoulder recurrent dislocation disorder. The claims file must be made available to and pertinent documents therein reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaire. The examiner is also asked to indicate the point during range of motion testing that motion is limited by pain. The examiner must test the range of motion and pain of the right shoulder in active motion, passive motion, weight-bearing, and non-weight-bearing. The examiner must also conduct the same testing on the left shoulder. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding his flares by alternative means. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected bilateral knee chondromalacia patellae disorder. The claims file must be made available to and pertinent documents therein reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaire. The examiner is also asked to indicate the point during range of motion testing that motion is limited by pain. The examiner must test the range of motion and pain of the bilateral knees in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information (CONTINUED ON NEXT PAGE) - i.e. frequency, duration, characteristics, severity, or functional loss-regarding his flares by alternative means. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs