Citation Nr: 18161004 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 05-04 052 DATE: December 28, 2018 ORDER New and material evidence having been received, the claim for entitlement to service connection for right ear hearing loss is reopened. Service connection for right ear hearing loss is granted. Entitlement to a 60 percent disability rating, but no higher, for the Veteran’s service-connected right hip disability (previously rated under diagnostic code 5003-5255 for right hip arthritis) prior to September 26, 2005, is granted. Entitlement to a 70 percent disability rating, but no higher, for the Veteran’s status-post right hip replacement from November 1, 2006, to July 17, 2017, is granted. REMANDED Entitlement to a compensable rating for left ear hearing loss is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The June 1999 rating decision that denied service connection for right ear hearing loss was final; the evidence received since the June 1999 rating decision is not cumulative or redundant and raises a reasonable possibility of substantiating the claim denied. 2. The Veteran’s right ear hearing loss is related to in-service noise exposure. 3. Prior to September 26, 2005, the Veteran’s right hip osteoarthritis more nearly approximated femoral nonunion, without loose motion but with weightbearing preserved with aid of a brace; his symptoms did not more nearly approximate nonunion with loose motion of the hip joint. 4. From November 1, 2006, to July 17, 2017, the Veteran’s status-post right hip replacement symptoms more nearly approximated markedly severe residual weakness, pain or limitation of motion; the symptoms did not more nearly approximate implantation of prostheses with painful motion or weakness such as to require the use of crutches. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service for entitlement to service connection for right ear hearing loss. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for right ear sensorineural hearing loss are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.309(a), 3.385. 3. The criteria for a 60 percent rating, but no higher, for right hip arthritis prior to September 26, 2005, are met. 38 C.F.R. § 4.71a, Diagnostic Code 5255. 4. The criteria for a 70 percent rating, but no higher, for status post right hip replacement from November 1, 2006, to July 17, 2017, are met. 38 C.F.R. § 4.71a, Diagnostic Code 5054. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active from May 1975 to April 1977 and from July 1979 to April 1998. In August 2007 and July 2014 statements, the Veteran expressed his revocation of his prior appointed veterans service organization (VSO) representative. As such, he has elected to proceed without representation in this appeal. The increased rating claim for the hip was previously before the Board in October 2007, December 2009, and January 2017, at which times it was remanded for additional development. The most recent January 2017 remand took jurisdiction over TDIU, and also referred the matter of entitlement to Dependents’ Education Assistance (DEA) to the agency of original jurisdiction (AOJ) for further action. With respect to the latter, it appears the AOJ is working on developing the DEA claim, so jurisdiction over this matter is retained by the AOJ at present. With respect to the increased rating claim for the right hip, the Board notes that the Veteran has been awarded a total rating for this disability following his right hip replacement surgery on September 26, 2005, and continuing until October 31, 2006; therefore, the Board will consider as part of the current appeal the staged ratings assigned throughout the appellate period exclusive of the rating period he was at 100 percent. Additionally, the AOJ increased the Veteran’s right hip disability to 90 percent under DC 5054 after the VA examiner checked the box that indicated that surgery residuals included “[f]ollowing implantation of prosthesis with painful motion or weakness such as to require the use of crutches.” This is the maximum highest schedular rating allowable for a status post hip replacement. As the Veteran stated in an October 2017 statement (on a standardized notice of disagreement form), he felt he was entitled to a 70 percent rating for his right hip disability, so the question of whether he may be entitled to a rating higher than 90 percent after July 18, 2017, is not in case or controversy. Finally, the AOJ sent the Veteran a letter in March 2018 informing him that “[s]ince the issues you are claiming are already on an appeal, we cannot accept your claim for that issue at this time for the following NOD[s]: . . . October 16, 2017 we received a NOD for right hip and effective date of 100% is already on remand January 30, 2017.” This statement is confusing, and the Board will attempt to procedurally clarify. First, the Veteran’s October 2017 notice of disagreement expressed his disagreement with the November 2016 rating decision’s notice letter, which included a sentence explaining, “Your overall or combined rating remains 100% since Sept[ember] 26, 2005.” His disagreement was as follows: The award letter stated my combine[d] rating remains 100% since Sept 26, 2005. However, I’ve been rated at 100% since 2012 and not 2005. I was assigned a temporary 100% rating for a year after my total right hip replacement in 2005. Also, your decision increased my 30 percent rating to 50 percent effective November 1, 2006 but without no monetary pay changes. See October 2017 standardized notice of disagreement form. To the extent the Veteran is claiming that he is entitled to a higher rating for his hip during the time period prior to September 26, 2005, the matter of staged ratings is indeed already under appeal and the Board has jurisdiction over the threshold matter of whether he is entitled to a disability rating in excess of 30 percent for this time period for his right hip, including consideration TDIU, if warranted, and any other increased rating considerations part and parcel of his right hip claim. However, the Board recognizes that a January 2012 rating decision awarded the Veteran service connection for posttraumatic stress disorder (PTSD) and assigned a 30 percent rating, which increased his overall compensation to 100 percent effective September 21, 2010, and resulted in a finding of a total and permanent evaluation for the establishment of DEA benefits effective on the same date (September 21, 2010). To the extent that the Veteran’s recent October 2017 notice of disagreement alternatively implied that the AOJ should have awarded an earlier effective date in 2012 for the grant of PTSD and corresponding “total and permanent” evaluation prior to September 2010, any such effective date issue is untimely and cannot be considered pursuant to Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006) (there is no such thing as a freestanding claim for an earlier effective date). 1. New and material evidence has been received to reopen the claim for entitlement to service connection for right ear hearing loss. The RO denied service connection for right ear hearing loss in a June 1999 rating decision, stating that “the evidence of record does not show audiometric findings which meet the criteria for a grant of service connection for defective hearing in the right ear.” The Veteran did not file a notice of disagreement, and with no new and material evidence submitted in the following year, this decision became final. However, the evidence submitted after June 1999, including but not limited to a June 2016 audiogram from Landstuhl Regional Medical Center Audiology Clinic, relates to unestablished facts necessary to substantiate this service connection claim. When the Board considers this evidence, combined with VA’s duty to assist and considering the other evidence of record, the evidence raises a reasonable possibility of substantiating the claim. Therefore, the Board finds that the right ear hearing loss claim should be reopened. 2. Entitlement to service connection for right ear hearing loss is granted. The Veteran asserts that VA failed to adequately consider the favorable June 2016 evaluation conducted by the Audiology Department at Landstuhl Regional Medical Center, which supports his claim for right ear hearing loss. See February 2017 statement. VA denied his claim, relying on the results of a December 2016 VA examination which, although opining favorably that his diminished hearing and threshold shift is a result of his noise-exposure in service, showed that he did not meet the audiometric requirements to establish a disability of hearing loss as defined by VA regulation 38 C.F.R. § 3.385. The December 2016 VA examiner found that the Veteran’s right ear hearing loss was at least as likely as not caused by or a result of an event in service: The Veteran was exposed to relevant noise during his military service. The comparison of audiograms at the beginning and at the end of his military service shows a significant threshold shift in the high frequencies which is consistent with the noise exposure the patient experienced. The Veteran’s hearing loss on the right side in 1998 which is documented in the audiograms in the pertinent records file is therefore more likely than not due to military noise exposure. However, neither the puretone thresholds, nor the Maryland CNC results, in 1998 or in December 2016 yielded a hearing loss disability as defined by VA, and the AOJ denied the claim. Significantly, the AOJ simply discounted results from Landstuhl Regional Medical Center “are not sufficient to determine the current level of severity of your hearing loss. The records do not specifically state if controlled speech discrimination test (Maryland CNC) was used to determine word recognition, which is required, nor do they state if test results are considered valid [and] only show an episodic increase in hearing loss.” See November 2017 statement of the case. However, the Board notes that the requirement for having a Maryland CNC speech discrimination test applies to when rating an established disability under 38 C.F.R. § 4.85; the regulations provide no such requirement for determining whether a hearing loss disability applies in the first instance. In fact, 38 C.F.R. § 3.385 provides three ways in which a hearing loss disability can be established, and only one of these contemplates use of the Maryland CNC test. Rather, there are two independent and alternate ways a hearing loss disability can be established based solely on puretone thresholds. The Board determines that the Landstuhl records are therefore relevant to the pertinent inquiry of whether right ear hearing loss as defined by VA has been established at any time during the appeal period, and they do indeed. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of a “current disability” is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal). Specifically, the Landstuhl June 2016 VA audiological examination indicated auditory thresholds above 26 decibels at three of the relevant frequencies for the right ear (the 2000, 3000, and 4000 hertz levels). Therefore, a hearing loss disability as defined by VA is established. See 38 C.F.R. § 3.385. Because these results vary only slightly from those found at the December 2016 VA examination report (which showed that the puretone threshold was at only 25 decibels at the 3000 hertz level—just one decibel shy of the regulatory hearing loss definition) the Board does not feel they are inconsistent with one another so as to cast any doubt as to their validity. Having determined that the Veteran has established right ear hearing loss during a portion of the appeal period, and given the favorable nexus evidence of record, the Board resolves doubt in the Veteran’s favor and finds that the evidence supports the establishment of service connection for right ear hearing loss. As such, the claim is granted. 3. Entitlement to a disability rating higher than 30 percent for the right hip prior to September 26, 2005, is granted. Under Diagnostic Code (DC) 5255, anatomical neck disability resulting from a fracture of the shaft or neck of the femur is divided into two categories depending upon whether the fracture involves nonunion or malunion of the fractured femur. For malunion of the femur, three disability ratings are available: 10 percent for malunion of the fracture with “slight knee or hip disability,” 20 percent for malunion of the fracture with “moderate knee or hip disability,” and 30 percent for union of the fracture with “marked knee or hip disability.” 38 C.F.R. § 4.71a, DC 5255 (2017). For nonunion fractures, three disability ratings are available. Two 60 percent disability ratings are available: (1) For nonunion fracture of the surgical neck with a false joint or (2) for nonunion, without loose motion, but with weightbearing preserved with the aid of a brace. Id. The third rating is an 80 percent disability rating for nonunion with loose motion associated with a spiral or oblique fracture. Id. Prior to September 26, 2005, the Veteran’s right hip disability is rated 30 percent disabling under DC 5003-5255 for arthritis and its impairment of the femur. Inasmuch as this rating code is being used to assess limitation of motion associated with arthritis under DC 5003, and not for a fracture of the hip per se, the Board does not strictly interpret the rating criteria to require evidence of hip fracture. When looking at the impairment described by the rating criteria, the Board finds that a higher, 60 percent rating is indeed warranted prior to September 26, 2005 based on the findings of a May 2004 VA examination of the right hip, which concluded that the Veteran’s right hip had “worsened significantly” since his 2002 VA examination. These findings more nearly approximate a disability picture consistent with nonunion, without loose motion but with weightbearing preserved with aid of a brace. The January 2004 examiner explained that “[t]otal hip replacement is indicated. However, since the 48 y/o veteran is considered still too young for this surgery, he has to cope with a progressively immobilizing condition.” It was noted the Veteran used a cane and reported “complaints day nad night. They [] wake him up in the night. Morning stiffness in the right hip joint. Getting in and out of his bed and the car is always painful. Limp, bilaterally, right greater . . . he has a cane in use.” The Veteran stated that his endurance is permanently and significantly limited. He cannot stand longer than 20 to 30 minutes and tries to sit as much as he can. Thus, a higher, 60 percent rating is warranted. However, the Board finds that his right hip symptoms prior to September 26, 2005, do not more nearly approximate the maximum 80 percent rating for nonunion with loose motion associated with a spiral or oblique fracture. It is noted that, upon physical examination in May 2004, passive ranges of motion of the right hip as follows: flexion of the right hip to 29 degrees (with help of the examiner), 0 degrees of extension (cannot extend the stretched leg), adduction to 31 degrees (pulls the leg sideways), abduction to 10 degrees (with help of the examiner), 0 degrees external rotation (with help of the examiner), 0 degrees internal rotation (stiffened at this level). Active ranges of motion were as follows: 25 degrees flexion (Veteran pulls leg up with his hands), 0 degrees extension (cannot extend the stretched leg), 20 degrees adduction (pulls the leg on examination couch sideways), 10 degrees abduction (stiffened at this level), 0 degrees external rotation (stiffened at this level), 0 degrees internal rotation (stiffened at this level). Corresponding January 2004 VA X-rays revealed “[r]ight hip joint with severe concentric join space narrowing and egg-shaped deformity of the femoral head, with osteophyte collar,” leading to the impression of severe osteoarthritis of the right hip.” These findings are not consistent with loose motion of the hip/femur joint. Although it is acknowledged that his right hip osteoarthritis resulted “in severest limitation of motion and function and chronic severe pain and limp on use, with continuous pain at rest,” the Veteran could ambulate and stand with use of a cane, as described above. He also was “fully employed working 8 hours per day on 5 days per week” and although he estimated he only achieves 2 or less hours of the required 8 hours of work “because he cannot stand or walk anymore,” there is at least this much functional and weight-bearing ability to stand/walk/work. There is no doubt that painful and stiff motion of the right hip has been established, but the right hip symptoms prior to September 26, 2005, do not more nearly approximate the lack of right hip function associated with loose motion of the hip joint associated with the maximum 80 percent rating. Instead, the Board finds the symptoms and above-described ambulatory capabilities more consistent with “nonunion, without loose motion, but with weightbearing preserved with aid of a brace” characterized by assignment of a 60 percent rating under the applicable diagnostic code. The Board has also looked to see whether a disability rating higher than 60 would be warranted under any other potentially applicable rating codes, including DCs 5250 (ankylosis of the hip), 5250 (limitation of extension of the thigh), 5252 (limitation of flexion of the thigh), 5253 (impairment of the thigh), 5254 (flail joint of the hip). However, given the range of motion demonstrated, even though limited, a rating for ankylosis of the right hip is not more nearly approximated, either intermediate (70 percent) or extremely unfavorable, foot not reaching the ground, crutches necessitated (90 percent) under DC 5250. And, limitation of the extension and flexion of the thigh would not yield a higher combined rating higher than the 60 percent established under 5255, as the maximum evaluation is 10 percent and 40 percent respectively for each. Nor, given the ambulatory and functional capability retained and demonstrated in the May 2004 VA examination, has a flail hip joint been shown for an 80 percent rating under 5254. For these reasons, a 60 percent rating for the right hip, but no higher, under DC 5255 is assigned prior to September 26, 2005. To this extent, the claim is granted. 4. Entitlement to a disability rating higher than 50 percent from November 1, 2006, to July 17, 2017, for status-post right hip replacement surgery is granted. Following the one-year period, at which time a 100 percent rating was assigned, after his September 2005 total hip replacement surgery, the Veteran was assigned a 50 percent rating from November 1, 2006, to July 17, 2017, under DC 5045. According to DC 5045 a 50 percent rating is warranted for “moderately severe residuals of weakness, pain or limitation of motion.” 38 C.F.R. § 4.71a. A 70 percent rating is warranted for “markedly severe residual weakness, pain or limitation of motion following implantation of prosthesis,” and a maximum rating of 90 percent is warranted for “following impilation of prosthesis with painful motion or wakens such as to require the use of crutches.” Id. When looking at the time period prior to July 17, 2017, the Board notes that the evidence shows “markedly severe” weakness, pain, or limitation of motion so as to warrant a higher 70 percent rating. For example, at the December 2016 VA examination of the hip, he reported “pain with prolonged sitting or standing, and his functional capacity to lift, bend, or climb is reduced.” It was noted “[h]e can no longer fun, has difficulty with any prolonged standing, and requires a cane for any prolonged walking.” He also reported, flare-ups with “more pain noted for several days after any strenuous activity.” It was stated that range of motion was “sufficiently limited that he has difficulty getting dressed,” and that he had pain on weightbearing and on examination in all areas of movement (flexion, extension, abduction, adduction, external rotation, and internal rotation). Functional limitations of pain, weakness, and lack of endurance were reported, resulting in “pain without a further loss of ROM [range of motion].” Contributing factors identified included less movement than normal, weakened movement, disturbance of locomotion, interference with sitting, and interference with standing. Even though the examiner was asked to describe the above residuals of total hip joint replacement, which were determined to be assessed as “[m]oderately severe residuals of weakens, pain or limitation of motion,” which fits squarely into the diagnostic rating criteria for a 50 percent rating, the Board finds that the above demonstrates symptoms that more nearly approximates “moderately severe” residuals. In this regard, even the December 2016 VA examiner recognized that “the weakness and pain in the right hip does cause significant impairment in his ability to run, walk, stand, sit, climb and carry heavy objects.” (Emphasis added). Therefore, the next higher 70 percent rating is warranted. Given there seems to be no determinate point in time since November 2006 at which point his status post hip replacement residuals seemed to have increased in severity so as to warrant separate staged ratings, the Board resolves doubt in the Veteran’s favor and finds that the higher rating is warranted throughout. However, symptoms reported throughout the time period in question prior to July 18, 2017, cannot be said to more nearly approximate the criteria for the next higher 90 percent rating. For example, the December 2016 VA examiner noted his range of motion of the right hip as follows: 60 degrees of flexion, 20 degrees of extension, 20 degrees of abduction, 5 degrees of adduction, 30 degrees of external rotation, and 5 degrees of internal rotation. Significantly, the examiner stated although pain increased with flares, this increased pain without additionally limiting the range of motion. He required a cane for doing most prolonged weight bearing activities, which implies that he could independently perform weight-bearing activities that were of a lesser duration without the use of a cane. Given that the additional functional impairments contemplated did not decrease the range of motions to a higher degree, and there was no additional limitation of motion shown after 3 repetitions on examination, the evidence does not suggest symptoms more nearly approximating painful motion or weakness such as to require the use of crutches prior to July 18, 2017. What is more, the Veteran submitted a statement in October 2017 stating that “a higher evaluation of 70 percent is warranted because of my right hip,” indicating that he was not seeking a disability rating higher than this amount. For all the reasons set forth above, a 70 percent rating, but no higher, for status-post right hip replacement surgery under DC 5054 is assigned for the time period from November 1, 2006, to July 18, 2017. To this extent, the claim is granted. REASONS FOR REMAND 1. Entitlement to a compensable rating for left ear hearing loss is remanded. In February 2017, the Veteran argued that the December 2016 VA examination report failed to adequately contemplate his disability picture and worsening hearing, stating that “[m]y hearing is getting wors[e] as stated in my evaluation conducted by the Audiology Department at Landstuhl Regional Medical Center. . . . I am a candidate for a hearing aid. I am having daily problems of hearing. It’s difficult to hear my co-workers as well as family members. Everyone has to repeat themselves.” As his February 2017 statement sets forth additional functional impacts beyond those noted in the most recent December 2016 VA audiogram—as well as the fact that the prior examinations, including the original April 1999 audiological examination and the non-VA June 2016 audiological examination, reflected more severe hearing than that shown in December 2016—a new VA examination should be conducted in order to adequately evaluate the current level of severity of his hearing loss. Additionally, now that the Veteran is service-connected for right ear hearing loss as well, the AOJ will now have an opportunity to singly rate his bilateral hearing loss disability under 38 C.F.R. § 4.85. It would be premature for the Board to adjudicate his left ear hearing loss alone until the RO processes the grant of service connection for his right ear and assigns an initial rating for his bilateral hearing loss, as appropriate.   2. TDIU is remanded. Recent records reflect that the Veteran was/is working as a commissary employee in Stuttgart, and that he had an equal employment opportunity (EEO) complaint/appeal pending. See, e.g. February 2018 Landstuhl Regional Medical Center treatment report. Other earlier records indicate he had been working at the Army Air Force Exchange Service (AAFES), and it appears that he has been employed, at least in some capacity, throughout much—if not all—of the appeal period. See e.g. October 2004 and January 2010 VA Forms 21-8940 (both stating that he was employed full time). However, he indicated that he received poor performance reviews and has considered a “downgrade” or reduction in hours due to his “becoming unable to complete or accomplish my work” due to arthritis. See id. As he has not provided a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) since 2010, additional information is required to clarify his work history and his present ability to obtain and maintain substantially gainful employment throughout the entire time period on appeal, including considerations of whether he may be working in a marginal or sheltered employment setting. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a recent and submit VA Form 21-8940, (Veteran’s Application for Increased Compensation Based on Unemployability), as well as any relevant employment records from AAFES regarding the impact of his right hip and service-connected disabilities on his employment. (Continued on the next page)   2. Schedule the Veteran for a VA audiological examination report to evaluate the severity of his hearing loss disability. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.Gielow, Counsel