Citation Nr: 18142973 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 09-25 785 DATE: October 18, 2018 ORDER Entitlement to an initial compensable rating for bilateral hearing loss disability is denied. REMANDED Entitlement to an increased rating for right knee patellofemoral syndrome, status post arthroscopic repair of meniscus tear is remanded. Entitlement to increased rating for cervical spine degenerative spondylosis with disc protrusion is remanded. Entitlement to an initial increased rating for residual scar, right knee is remanded. Entitlement to increased rating for radiculopathy in the left upper extremity is remanded. Entitlement to increased rating for radiculopathy in the right upper extremity is remanded. FINDING OF FACT At worst, the Veteran’s hearing acuity was demonstrated at Level II in his right ear and at Level II in his left ear. CONCLUSION OF LAW The criteria for a compensable initial rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1-4.7, 4.85, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1968 to October 1970. 1. Entitlement to an initial compensable rating for bilateral hearing loss disability Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2017). 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 (2017). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran seeks an initial increased rating for his bilateral hearing loss disability. He contends that his hearing loss disability is more severe than contemplated by the current assigned rating. The Veteran originally filed his claim for service connection for bilateral hearing loss in August 2006, and his claim was continuously adjudicated until the Board granted service connection in an October 2012 decision. The RO implemented the award in an October 2012 rating decision, and the Veteran’s bilateral hearing loss disability was assigned a noncompensable rating, effective from the date of claim. The Veteran appealed the initial assigned rating. Relevant laws and regulations stipulate that evaluations of defective hearing range from noncompensable to 100 percent based on the organic impairment of hearing acuity. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017) Hearing impairment is measured by the results of controlled speech discrimination tests together with the average hearing threshold levels (which in turn, are measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second (Hertz)). See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (defective hearing is rated on the basis of a mere mechanical application of the rating criteria). The provisions of 38 C.F.R. § 4.85 establish eleven auditory acuity levels from I to XI. Tables VI and VII as set forth in section 4.85(h) are used to calculate the rating to be assigned. In guidance for cases involving exceptional patterns of hearing impairment, the schedular criteria stipulates that, when the pure tone 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. 38 C.F.R. § 4.86 (a). Each ear is evaluated separately. Additionally, when the pure tone 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. 38 C.F.R. § 4.86 (b). The numeral will then be elevated to the next higher Roman numeral. Id. Each ear will be evaluated separately. In May 2007, the Veteran was afforded a VA audiology examination in conjunction with his service connection claim. He complained of bilateral hearing loss which made it difficult for him to understand his wife when he was not looking at her and required him to turn up the volume on the television. No audiometric results were recorded from that examination. The VA examiner concluded the results were unreliable and unsuitable for rating purposes as Veteran did not appear to be putting forth good faith effort to cooperate with examiner. The Veteran submitted private audiology records dated in November 2009 which show he had mild to moderate right ear hearing loss and moderate to severe left ear loss. In the October 2012 Board decision, it was held that the audiogram contained the following pure tone threshold at 1000 to 4000 Hertz results were as follows: 25, 30, 50 and 70 decibels in the left ear; and 25, 25, 25, and 30 decibels in the right ear. The Veteran had average pure tone thresholds of 43.75 in the left ear and 26.5 in the right ear. The speech recognition score based on Maryland CNC was 96 percent in each ear. The report of an April 2011 VA audiology examination included complaints from the Veteran that he had difficulty with hearing conversations with others. Speech recognition score, using the Maryland CNC, was 96 percent in right ear and 92 percent in the left ear. Audiometric testing revealed pure tone thresholds at 1000 to 4000 Hertz were as follows: 15, 20, 50, and 70 decibels in the left ear; and 10, 15, 20, and 25 decibels in the right ear. The Veteran had average pure tone thresholds of 38.75 in the left ear and 17.5 in the right ear. The Veteran most recently underwent a VA audiology examination in November 2013. In that examination report, the VA examiner noted that the Veteran complained of difficulty hearing and understanding others. Speech recognition score, using the Maryland CNC, was 90 percent in the right ear and was 88 percent in the left ear. Audiometric testing revealed pure tone thresholds at 1000 to 4000 Hertz were as follows: 25, 25, 55, and 70 decibels in the left ear; and 10, 20, 20, and 35 decibels in the right ear. The Veteran had average pure tone thresholds of 44 in the left ear and 21 in the right ear. The Veteran has not asserted that his bilateral hearing loss disability has worsened since he was last examined by VA in 2013. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, a remand is not warranted to afford the Veteran with a new VA examination based merely on passage of time. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Applying the method for evaluating hearing loss to the results of the Veteran’s three available audiological evaluations show the Veteran did not meet the exceptional pattern of hearing impairment under 38 C.F.R. § 4.86. Moreover, none of examiner certified that the use of speech discrimination test was not appropriate. Therefore, the numerical hearing impairment is determined only by Table VI. At worst, the Veteran’s hearing acuity demonstrated pure tone threshold average of 44 with speech recognition of 88 percent in the left ear and pure tone threshold average of 21 with speech recognition of 90 percent in the right ear based on the results from the November 2013 VA audiology examination report. Based on these findings, the Veteran’s hearing acuity is assigned to Level II hearing for his right ear and Level II in his left ear according to Table VI. Combining Level II hearing for the right ear and Level II hearing for the left ear according to Table VII reveals a noncompensable rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. In view of the above, an initial compensable rating for bilateral hearing loss is not warranted. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board has considered the Veteran’s statements regarding the functional impact of his hearing loss on his daily life, including his difficulty understanding what others are saying. However, the Board finds that the Veteran’s functional impairment due to hearing loss is a disability picture that is specifically and adequately contemplated by the current schedular rating criteria. See Doucette v. Shulkin, 28 Vet. App. at 369-70 (finding 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 the effects that VA’s audiometric tests are designed to measure). For all the foregoing reasons, an initial compensable rating for hearing loss must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, given the mechanical nature of deriving schedular ratings for hearing loss, and that the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to an increased rating for right knee patellofemoral syndrome, status post arthroscopic repair of meniscus tear is remanded. 2. Entitlement to an initial increased rating for residual scar, right knee is remanded. The Veteran’s right knee and residual scar disabilities were last evaluated in August 2014 VA examination. Since then, the Veteran has submitted medical evidence that suggests his disabilities have worsened. See April 2017 private vocational assessment. Accordingly, a remand is needed to afford the Veteran with new VA examinations to evaluate the severity of his right knee and residual scar disabilities. 3. Entitlement to increased rating for cervical spine degenerative spondylosis with disc protrusion is remanded. 4. Entitlement to increased rating for radiculopathy in the left upper extremity is remanded. 5. Entitlement to increased rating for radiculopathy in the right upper extremity is remanded. The Veteran contends that the March 2016 VA neck examination report is inadequate because the VA examiner did not adequately account for complaints of pain during clinical examination. In addition, the Veteran has submitted more recent medical evidence that suggests his disabilities have worsened. See April 2017 private vocational assessment. Accordingly, the Board finds that the Veteran should be afforded with new VA examinations to evaluate the severity of his disabilities due to cervical spine and radiculopathy in right and left upper extremities The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to right knee disability alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected residual scar, right knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due residual scar disability alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected cervical spine degenerative spondylosis with disc protrusion and radiculopathy in both upper extremities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to cervical spine degenerative spondylosis with disc protrusion and radiculopathy in upper extremities alone and discuss the effect of the Veteran’s disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs