Citation Nr: 18145633 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 17-49 953 DATE: October 30, 2018 ORDER Service connection for bilateral sensorineural hearing loss is granted. For the entire rating period on appeal from October 28, 2015, an increased rating for the service-connected right knee disability in excess of 10 percent is denied. For the entire rating period on appeal from October 28, 2015, a separate 10 percent disability rating, but no higher, for slight instability of the right knee is granted. An increased (compensable) rating for right ear otitis media is denied. FINDINGS OF FACT 1. The Veteran currently has bilateral sensorineural hearing loss to an extent recognized as a disability for VA purposes; the Veteran was exposed to loud noise (acoustic trauma) while in service; the Veteran’s current bilateral hearing loss is etiologically related to exposure to acoustic trauma in service. 2. For the entire rating period on appeal from October 28, 2015, the right knee disability has been manifested by flexion greater than 60 degrees, extension less than 5 degrees, and painful motion, without ankylosis, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibular, or genu recurvatum. 3. For the entire rating period on appeal from October 28, 2015, the right knee disability has also been manifested by slight instability. 4. For the entire rating period on appeal from October 28, 2015, the service-connected right ear otitis media has not been manifested by active infection or aural polyps. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for bilateral sensorineural hearing loss have been met. 38 U.S.C. §§ 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326, 3.385. 2. For the entire rating period on appeal from October 28, 2015, the criteria for an increased disability rating in excess of 10 percent for the right knee disability have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003. 3. Resolving reasonable doubt in favor of the Veteran, for the entire rating period on appeal from October 28, 2015, the criteria for a separate 10 percent disability rating for mild instability of the right knee have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.1, 4.3, 4.7, 4.10, 4.14, 4.21, 4.71a, Diagnostic Code 5257. 4. For the entire rating period on appeal from October 28, 2015, the criteria for an increased (compensable) rating for right ear otitis media has not been met or approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.3, 4.6, 4.7, 4.87, Diagnostic Code 6200. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from April 1978 to November 1979. 1. Service connection for bilateral sensorineural hearing loss Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). The Veteran is currently diagnosed with bilateral sensorineural hearing loss (as an organic disease of the nervous system) which is a “chronic disease” under 38 C.F.R. § 3.309(a). Therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the United States Court of Appeals for Veterans Claim (Court) has held that “the threshold for normal hearing is from 0 to 20 dBs [decibels], and higher threshold levels indicate some degree of hearing loss.” See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran asserts that the currently diagnosed bilateral hearing loss is the result of the same in-service noise exposure for which service connection for bilateral tinnitus was granted in a previous October 2014 rating decision. See March 2016 Notice of Disagreement. Initially, the Board finds that the Veteran currently has a bilateral hearing loss disability that meets the VA regulatory criteria at 38 C.F.R. § 3.385. An April 2017 VA treatment record shows pure tone thresholds of 40 dB or more at 500 Hz, 1000 Hz, 3000 Hz, and 4000 Hz in both ears. The VA treatment record conveys that the Veteran was diagnosed with bilateral sensorineural hearing loss. The Board also finds that the Veteran was exposed to loud noise (acoustic trauma) while in service. A June 1978 service examination done shortly after service induction shows the Veteran’s hearing was within normal limits; in contrast, a November 1979 service separation examination shows auditory thresholds were measured at 40 dB or more in all but one measured field. Further, numerous service audiometric examinations reflect an upwards shift in decibel levels during service. See e.g. May 1979 service treatment record; November 1979 service treatment record (diagnosing mild hearing loss in the right ear). The Veteran argues that the same in-service noise exposure, for which an October 2014 VA examiner opined was sufficient to cause bilateral tinnitus, also caused the current bilateral hearing loss. Similar to tinnitus, sensorineural hearing loss is linked with nerve damage that most often occurs “when the tiny hair cells in the cochlea are injured.” Fountain v. McDonald, 27 Vet. App. 258, 266 (2015) (quoting VA Training Letter 10-02). More specifically, in Fountain, the Court referenced VA Training Letter 10-02, in addition to other medical and legal authority, and noted that chronic sensorineural hearing loss, as an organic disease of the nervous system, was due to a problem in the inner ear or in the auditory nerve between the inner ear and the brain, and was commonly caused by chronic exposure to excessive noise, in addition to age related hearing loss. The Court noted that chronic sensorineural hearing loss caused by acoustic trauma resulted in damage to the inner ear and qualified as an organic disease of the nervous system under 38 C.F.R. § 3.309. Because the Veteran sustained nerve damage that caused the service-connected tinnitus, by necessary logical inference, the Veteran sustained the same nerve damage to the inner ear that caused the current bilateral sensorineural hearing loss. Based upon both medical and legal authority, the Board finds that the in service acoustic trauma caused permanent nerve damage to the auditory nerve or inner ear, which denotes the onset of the current bilateral sensorineural hearing loss in service. Such sensorineural hearing loss is a permanent disability that was incapable of actual improvement of the nerve damage because chronic sensorineural hearing loss either progresses or remains the same (i.e., progression may be prevented), while restoration (i.e., improvement) of chronic sensorineural hearing loss that was caused by acoustic trauma is not medically possible. See Fountain, 27 Vet. App. 258; VA Training Letter 10-02. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for service connection for bilateral sensorineural hearing loss have been met. 38 U.S.C. §5107; 38 C.F.R. § 3.102. As service connection has been granted on a direct basis, there is no need to discuss entitlement to service connection on a presumptive or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. §7104. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 2. An increased rating for a right knee disability in excess of 10 percent The Veteran generally contends that an increased disability rating in excess of 10 percent for the service-connected right knee disability is warranted. For the entire rating period on appeal from October 28, 2015, the Veteran is in receipt of a 10 percent disability rating for the right knee disability under Diagnostic Code 5260. While the RO continued a 10 percent rating under Diagnostic Code 5260 in the February 2016 rating decision on appeal, the reasons and bases analysis in continuing the 10 percent rating shows that the criteria of Diagnostic Code 5003 was used. Diagnostic Code 5003 provides for a 10 percent rating for a major joint (includes the knee) where there is pain with noncompensable limitation of motion. 38 C.F.R. § 4.71a. The evidence in this case shows only noncompensable limitation of right knee flexion and extension; therefore, use of Diagnostic Codes 5260 or 5261 with the 10 percent rating is not appropriate. The appropriate Diagnostic Codes for rating compensable limitation of motion of the left knee are Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. In VAOPGCPREC 9-2004, the VA General Counsel interpreted that, when considering Diagnostic Codes 5260 and 5261 together with 38 C.F.R. § 4.71, a veteran may receive a rating for limitation in flexion only, limitation of extension only, or, if the 10 percent criteria are met for both limitations of flexion and extension, separate ratings for limitations in both flexion and extension under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension). Under Diagnostic Code 5260, limitation of knee flexion is rated 30 percent disabling where flexion is limited to 15 degrees; 20 percent disabling where flexion is limited to 30 degrees; 10 percent disabling where flexion is limited to 45 degrees; and noncompensable where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, limitation of knee extension is rated 50 percent disabling where extension is limited to 45 degrees; 40 percent disabling where extension is limited to 30 degrees; 30 percent disabling where extension is limited to 20 degrees; 20 percent disabling where extension is limited to 15 degrees; 10 percent disabling where extension is limited to 10 degrees; and noncompensable where extension is limited to 5 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5257 contemplates “other impairment” of the knee including recurrent subluxation or lateral instability. Under Diagnostic Code 5257, where impairment is severe, moderate or slight, disability evaluations of 30, 20, and 10 percent are assigned, respectively. 38 C.F.R. § 4.71a. Diagnostic Code 5262 contemplates impairment of the tibia and fibula, assigning a 40 percent rating for nonunion of the tibia and fibula, and 10, 20, and 30 percent ratings for slight, moderate or marked knee or ankle disabilities. The words “slight,” “moderate,” “severe,” and “marked” as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” Id. Under Diagnostic Code 5256, disability ratings are assigned when ankylosis is present. Id. Diagnostic Code 5258 provides a 20 percent disability rating when a dislocated semilunar cartilage is present with frequent episodes of “locking,” pain, and effusion into the joint. Id. Diagnostic Code 5259 provides for a 10 percent disability rating when semilunar cartilage has been removed and related symptoms are present. Id. A 10 percent disability rating is assigned under Diagnostic Code 5263 when genu recurvatum is identified. Id. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings is to be evaluated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, an evaluation of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups. A 20 percent evaluation is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. 38 C.F.R. § 4.71a. Notes (1) and (2) under Diagnostic Code 5003 provides the following: Note (1) provides that the 20 percent and 10 per cent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-rays findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. Rating Right Knee Pain and Limitation of Motion After a review of all the lay and medical evidence, the Board finds that, for the entire rating period on appeal from October 28, 2015, the criteria for an increased disability rating in excess of 10 percent for the right knee disability have not been met or more nearly approximated. 38 C.F.R. §§ 4.3, 4.7, 4.71a. VA treatment records and VA examination reports reflects the right knee disability has been manifested by flexion greater than 90 degrees, full extension, and painful motion, without ankylosis, dislocation or removal of semilunar cartilage, nonunion or malunion or the tibia and fibular, or genu recurvatum. A December 2015 VA examination report reflects right knee flexion was measured to 120 degrees and extension to 0 degrees, with pain noted upon examination that causes functional loss. A January 2016 VA treatment record shows right knee flexion was measured to 120 degrees and extension to 0 degrees. A February 2016 VA treatment record reflects full active and passive range of motion in the right knee with a mild decrease in flexibility. An August 2017 VA examination report shows right knee flexion was measured to 100 degrees and extension to 0 degrees with pain; a January 2018 VA examination report reflects right knee flexion was measured to 90 degrees and extension to 0 degrees with pain. Even with consideration of pain and additional limitation due to less movement than normal and pain on movement, the evidence does not reflect right knee limitation of motion that more nearly approximates flexion limited to even 60 degrees to meet the 10 percent rating criteria under Diagnostic Code 5260, or extension limited to 10 degrees to meet the 10 percent rating criteria under Diagnostic Code 5261. See 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca v. Brown, 8 Vet. App. 202 (1995); see VAOPGCPREC 09-04 (separate ratings may be awarded for compensable limitation of flexion and limitation of extension of the same knee joint). Rather, the evidence of record shows that the Veteran had, at worst, right knee flexion to 90 degrees and extension to 0 degrees, as noted in the January 2018 VA examination report. Therefore, an increased disability rating in excess of 10 percent, or separate disability ratings of 10 percent, are not warranted under Diagnostic Codes 5260 or 5261 for limitation of flexion and extension of the right knee for the entire rating period from October 28, 2015. 38 C.F.R. § 4.71a. The Board has considered whether an increased disability rating for the right knee is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See also DeLuca. Here, there is no question that the right knee disability has caused pain and stiffness which has restricted overall motion. The Veteran has reported chronic knee pain and difficulty with prolonged walking and standing; however, as noted above, even taking into account additional functional limitation due to pain, the VA examination reports and VA treatment records indicate ranges of motion that do not more nearly approximate the 10 percent criteria for separate ratings for limitation of flexion and limitation of extension. Separate Rating for Right Knee Instability The Board has also considered whether a separate disability rating is warranted for any other right knee disability. The evidence of record does not reflect that the right knee is ankylosed, that the semilunar cartilage is dislocated (with frequent episodes of locking, pain, and joint effusion), that the semilunar cartilage has been removed, that there is malunion or nonunion of the tibia and fibula, that there is a current diagnosis of genu recurvatum, and/or that the right knee disability has been manifested by limitation of flexion or extension to a compensable degree, a separate disability rating or increased disability rating is not warranted under Diagnostic Codes 5256, 5258, 5259, 5261, 5262, or 5263. 38 C.F.R. § 4.71a. The evidence of record does indicate symptoms of slight right knee instability. The December 2015 VA examination report, January 2016 VA treatment record, August 2017 VA examination report, and January 2018 VA examination report reflects the Veteran constantly uses a cane due to the right knee disability. Further, the Veteran endorsed symptoms of right knee instability in a March 2016 Notice of Disagreement. Finally, the January 2018 VA examination report notes a positive history of slight right knee instability. Such symptomatology represents a “slight” impairment of the Veteran’s right knee functionality. The Board finds that, based upon all the evidence, lay and medical, and resolving all reasonable doubt in favor of the Veteran, the service connected right knee disability has shown “slight” instability to warrant separate 10 percent rating for the right knee instability under Diagnostic Code 5257 for the entire rating period on appeal from October 28, 2015. 38 C.F.R. §§ 4.3, 4.7, 4.71a; VAOPGCPREC 23-97; VAOPGCPREC 9-98. 3. An increased (compensable) rating for right ear otitis media For the entire increased rating period on appeal from October 28, 2015, the service-connected right ear otitis media has been rated as noncompensable (i.e., 0 percent) under Diagnostic Code 6200. 38 C.F.R. § 4.87. Under Diagnostic Code 6200, a maximum 10 percent disability rating is provided for chronic suppurative otitis media, mastoiditis, or cholesteatoma (or any combination) during suppuration or with aural polyps. A noncompensable rating is not provided. 38 C.F.R. § 4.31. Suppuration is the act of becoming converted into and discharging pus. See Dorland’s Illustrated Medical Dictionary 1805 (32nd ed. 2012). An aural polyp is a polyp in the ear; common sites include the external canal, mucosa of the middle ear, and Eustachian tube. Id. at 1492. After review of all the lay and medical evidence, the Board finds that the criteria for the maximum 10 percent rating under Diagnostic Code 6200 for the service-connected right ear otitis media have not been met or approximated for any period. Throughout the rating period on appeal, the evidence shows no active ear infection, no ear drainage, and no polyps; instead, the evidence shows the Veteran denied any complaints related to any right ear condition, and that several examinations of the right ear found no abnormal findings. See December 2015 VA examination report (no right ear complaints reported); August 2017 VA examination report (Veteran reported right ear condition has remained normal without further complications); January 2018 VA examination report. Based on the foregoing evidence, the Board finds that the weight of the evidence is against finding that the Veteran had any infection or polyp in the right ear; thus, an increased (compensable) rating under Diagnostic Code 6200 is not warranted for any period. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Choi, Associate Counsel