Citation Nr: 18149113 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 17-19 752 DATE: November 8, 2018 ORDER Entitlement to an initial rating of 20 percent, but no higher, for left ankle degenerative arthritis, effective July 29, 2009, is granted. Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. Since July 29, 2009, the Veteran’s service-connected left ankle with degenerative arthritis has been manifest by marked limitation of motion. 2. There is no evidence of ankylosis of the Veteran’s left ankle at any time during the appeal period. 3. Audiometric testing results have never shown the Veteran to have more than Level II hearing loss in the right or Level III hearing loss in the left ear at any point in the appeal period. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating, but no higher, for a left ankle disability have been met since July 29, 2009. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5271. 2. The criteria for a compensable rating for bilateral hearing loss have not been. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.385, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.85, Diagnostic Code 6100, 4.86. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1989 to June 1989, with additional service in the Army National Guard. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 1. Left Ankle with Degenerative Arthritis Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. 38 C.F.R. § 4.40. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology, and evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a body part which becomes painful on use must be regarded as seriously disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40, 4.45. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment. In applying these regulations, VA should obtain examinations in which the examiner determines whether the disability was manifested by pain, weakened movement, excess fatigability, incoordination, and flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations, if feasible, should be expressed in terms of the degree of additional range-of-motion loss due to those factors. DeLuca, 8 Vet. App. 202; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); 38 C.F.R. § 4.59. The Veteran’s left ankle disability is currently rated at 10 percent since July 29, 2009, under Diagnostic Code 5003-5271. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code here indicates that the Veteran is service connected for degenerative arthritis, resulting in limitation of motion of his ankle. Degenerative arthritis is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. Id., DC 5003. Under Diagnostic Code 5271, moderate limitation of motion of the ankle warrants a 10 percent rating. A 20 percent rating requires marked limitation of the ankle. A November 2009 Compensation and Pension (C&P) examination reported tenderness and guarding movement of the Veteran’s left ankle with a history of diagnosed osteoarthritis since May 1992. The examiner found left dorsiflexion deformity, plantar flexion deformity, inversion deformity, and eversion deformity without ankylosis. The Board notes the examination report shows normal movement in the range of motion (ROM) testing for the left ankle and decreased ROM in the right ankle; however, based on comparison with the narrative accounts throughout the report that show significant symptoms in the left ankle and no disability in the right ankle, it appears the ROM testing results for the ankles were mistakenly reversed. Considering this, the report indicates that the Veteran’s left ankle ROM was limited to 5 degrees in dorsiflexion and 35 degrees in plantar flexion. Though no further ROM limitation is noted on repetitive use, the examiner indicates that joint function is additionally limited by pain. This additional limitation is not expressed in terms of the additional degree of limitation in ROM, and the examiner did not indicate the degree of flexion at which pain began. A subsequent May 2016 C&P examination found that the Veteran’s left ankle ROM was limited to dorsiflexion of 5 degrees and plantar flexion of 10 degrees, indicating a progression of the Veteran’s disability since the previous exam. Motion in each direction exhibited pain, and there was also evidence of pain on weight bearing. The examiner noted flare-ups of the left ankle described as swelling with aching and throbbing pain. Repetitive use over time resulted in pain, fatigue, and lack of endurance, which resulted in additional functional limitation, though the examiner was unable to describe this additional loss in terms of ROM. The examiner found no ankylosis. The Veteran’s medical records during the period on appeal generally support the findings of these examinations and note pain and swelling of the left ankle with decreased ROM and additional pain on movement and weight bearing. Most of these treatment records do not provide specific information on limitation of ROM, but they generally confirm that the Veteran has experienced significant functional limitations due to pain and fatigue throughout the period on appeal. Most recently, physical therapy notes indicate that the Veteran has experienced limited ROM with dorsiflexion less than 5 degrees as recently as April 2017. These notes indicate pain, moderate swelling, and weakness with bone on bone contact that will require surgery to resolve. Resolving reasonable doubt in the Veteran’s favor, the Board finds a 20 percent rating is warranted for the left ankle disability from the date of his initial claim, July 29, 2009, based on marked limitation of motion. When determining the functional impairment resulting from a disability rated based on limitation of motion, the Board is required to assess the effects of pain, weakened movement, excess fatigability, incoordination, and flare-ups. When flare-ups and additional pain and fatigue on repeated use are considered, it appears the Veteran has experienced limitation of motion that more closely approximates marked limitation of motion of the left ankle since he initially filed his claim. Although the examinations show that his ankle disability has progressed in severity over the course of the period on appeal, the November 2009 examination report indicates that the Veteran already experienced significant limitation in dorsiflexion with unspecified additional limitation resulting from pain. Later examinations and treatment records also indicate the Veteran has experienced flares resulting in additional functional loss that were not clearly factored into the ROM limitations recorded in the November 2009 examination. Taking this additional impairment into account and giving the Veteran the benefit of reasonable doubt, the Board finds that the Veteran’s condition has been manifest by marked limitation of motion throughout the period on appeal. A higher schedular rating is not warranted for either ankle during the appeal period. Diagnostic Codes 5003 and 5271 do not provide for a rating higher than 20 percent. Diagnostic Code 5270 provides higher ratings for ankylosis of the ankle at various degrees; however, the record establishes the Veteran has never experienced ankylosis of the left ankle during the appeal period. Ankylosis was not found on any examination, and there are no treatment records to support a finding of ankylosis. As such, Diagnostic Code 5270 is not for application in the Veteran’s case, and the 20 percent rating assigned for the left ankle under Diagnostic Code 5271 is the highest available rating based on limitation of motion. 2. Bilateral Hearing Loss Evaluations of defective hearing are based on organic impairment of hearing acuity, as measured by the results of controlled speech discrimination testing, together with the average hearing threshold level, as measured by puretone audiometry tests, in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz. See 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Id. Pursuant to the VA rating schedule, the assignment of a disability rating for hearing impairment is derived by a purely mechanical application of the rating schedule to the numeric designations derived from the results of audiometric evaluations. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Examination reports, however, are required to include full descriptions of the functional effects caused by a hearing disability. Martinak v. Nicholson, 21 Vet. App. at 455. Other than in exceptional cases of hearing loss, VA arrives at the proper designation of hearing loss in each ear by mechanical application of 38 C.F.R. § 4.85, Tables VI and VII, to arrive at a rating based upon the respective Roman numeral designations for each ear. Exceptional hearing loss exists if there is 30 decibels or less of loss at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz; or 55 decibels or more at all relevant frequencies. 38 C.F.R. § 4.86. An initial May 2016 C&P examination found bilateral sensorineural hearing loss, with noted functional impairment in the form of difficulty hearing on the telephone and engaging in conversations. Audiometric testing determined pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 45 50 45 50 LEFT 40 50 50 40 40 The threshold average in the right ear was 47.5 decibels, and the average in the left ear was 45 decibels. Speech audiometry revealed speech recognition ability of 86 percent in the right ear and of 78 percent in the left ear. These results do not reflect exceptional hearing loss as defined in 38 C.F.R. § 4.86. The May 2016 results equate to the assignment of Level II hearing loss for the right ear and Level III hearing loss for the left ear upon application of Table VI, which corresponds to a noncompensable disability rating when applied to Table VII. See 38 C.F.R. § 4.85. There must be at least Level III hearing loss in the better ear and Level IV hearing loss in the poorer ear for bilateral hearing loss to be compensable. Id. The Veteran has made statements generally asserting that his hearing loss is worse than described in the examination, noting the use of hearing aids to address his hearing loss. He has not provided any evidence of functional impairment outside of that contemplated by the rating criteria contained in the relevant regulations. He has also provided no medical evidence that would cast doubt on the accuracy of the May 2016 audiometric testing. In sum, the preponderance of evidence is against a finding that the Veteran has had a compensable level of bilateral hearing loss at any point in the appeal period. The Board acknowledges the Veteran’s reports of difficulty hearing conversations in person and over the telephone. This type of impairment is fully contemplated by the rating criteria for bilateral hearing loss, which establish the Veteran’s level of impairment is not compensable. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). Accordingly, entitlement to an initial compensable rating for bilateral hearing loss must be denied. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Pitman, Associate Counsel