Citation Nr: 18161109 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 15-20 192 DATE: December 28, 2018 ORDER Entitlement to a compensable disability rating for service-connected perforated right tympanic membrane (perforated right ear drum) is denied. Entitlement to a compensable disability rating for service-connected benign essential tremor is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected left knee arthroscopic debridement of chondromalacia, synovitis, and removal of loose body (left knee disability) is remanded. FINDINGS OF FACT 1. The Veteran’s perforated right ear drum has been assigned the maximum schedular rating authorized. 2. For the entire period on appeal, the Veteran’s benign essential tremor is manifested by no more than mild symptomatology. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for service-connected perforated right ear drum have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.87, Diagnostic Code (DC) 6211. 2. The criteria for a compensable evaluation for service-connected benign essential tremor have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, DC 8199-8103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1981 through August 2001. The Veteran filed his claim for an increased evaluation September 2013. Increased Rating Disability ratings are determined by applying the criteria set forth in the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disabilities 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. 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. 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. 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, 4.4. 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). However, if evidence indicates that the degree of disability increased or decreased, staged ratings may be assigned for separate periods of time. Fenderson v. West, 12 Vet. App. 119, 126 (1999); 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 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 evaluation for service-connected perforated right ear drum. The Veteran’s service-connected perforated right ear drum has been rated under 38 C.F.R. § 4.87, DC 6211 for perforation of tympanic membrane. The only schedular rating available is zero percent, or a noncompensable rating; a compensable evaluation is not available. Thus, the Veteran may only receive a higher rating under a different diagnostic code. Accordingly, all potentially applicable diagnostic codes have been considered in evaluating the disability resulting from the Veteran’s perforated right ear drum. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991) (holding that the Board must consider all potentially applicable regulatory provisions). Factual History In August 2013, private treatment records show the Veteran was seen by Dr. DR for complaints of ear problems. The Veteran reported that he could blow bubbles out of his right ear, but denied infections or ringing; his hearing was “OK.” Dr. DR diagnosed the Veteran with a perforated right ear drum, blocked right eustachian tube, and impacted cerumen; he advised the Veteran to avoid cotton swabs, getting water in his ears, and to wear hearing protection. Dr. DR discussed possible surgical intervention, but the Veteran stated that since it was not bothering him, he would like to wait. In June 2014, the Veteran received a VA ear examination. The Veteran recounted the in-service event that perforated his right ear drum, but did not provide current functional limitations. The examiner noted copious amounts of firm cerumen within the external ear canal. Upon examination, the Veteran’s ear canal was normal, and there was evidence of a healed perforated right ear drum. The Veteran’s gait, limb coordination, and Romberg testing were normal. Following audiological examination, results showed normal hearing in both ears, excellent speech discrimination bilaterally, and normal middle ear functions. The examiner diagnosed the Veteran with healed or resolved perforated right ear drum. Following examination, the Veteran asserted that his perforated right ear drum caused music to sound like it is coming from a blown speaker. Accordingly, in April 2016 the Veteran received another VA ear examination, which was essentially unchanged from June 2014, although the examiner changed the Veteran’s diagnosis from resolved perforated right ear drum to asymptomatic perforated right ear drum. The examiner’s assessment was that the Veteran’s perforated right ear drum did not appear to contribute to any functional problems or specific limitations. In addition, the Veteran had normal bilateral hearing, excellent bilateral speech discrimination, and present/normal acoustic reflexes. The examiner remarked that the Veteran did not have any history of chronic otitis media or infection of either ear. Analysis The Board finds that a compensable evaluation under any diagnostic code is not warranted. First, as noted above, DC 6211 does not provide for a compensable evaluation. Second, although the Veteran stated that the radio sounds as if a speaker is blown, neither VA examiner diagnosed the Veteran with an organic neurological disorder related to his perforated right ear drum. Additionally, neither VA examiner assessed functional problems or specific limitations due to the Veteran’s disability. Indeed, his hearing was described as normal and his speech discrimination was excellent throughout the appeal period. Finally, a review of the evidence shows that the Veteran’s perforated right ear drum did not cause chronic suppurative otitis media, mastoiditis, or cholesteatoma, serous otitis media, otosclerosis, Meniere’s syndrome, loss of an auricle, malignant neoplasm of the ear, benign neoplasms of the ear, or chronic otitis externa. See 38 C.F.R. § 4.87, DCs 6200-6210. Moreover, the Veteran was not found to have hearing loss for VA purposes in his right ear. The Board finds no other diagnostic codes applicable to the Veteran’s service-connected perforated right ear drum. See Schafrath, 1 Vet. App. at 589. The Board has carefully reviewed and considered the Veteran’s statements regarding the severity of his perforated right ear drum and has assigned these statements probative value as they are competent. See Layno v. Brown, 6 Vet. App. 465 (1994). Despite this, the lay statements and objective findings of record demonstrate that a compensable rating is not for assignment. The Board also notes that the Veteran requested an updated VA examination to assess the current severity of his perforated right ear drum as his most recent examination is over 2 years old. However, there is no medical or lay evidence indicating a worsening of the condition. As such, the Board finds that an additional examination is not warranted. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (finding “mere passage of time” does not render old examination inadequate). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Based on the foregoing, the Board finds that a compensable rating is not warranted for the Veteran’s service-connected perforated right ear drum. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 50, 57 (1990). 2. Entitlement to a compensable rating for service-connected benign essential tremor. The Veteran’s benign essential tremor is rated by analogy as a compulsive tic. See 38 C.F.R. § 4.124a, DC 8103. Depending on frequency, severity, and muscle group(s) involved, a mild tic is rated at 0 percent, a moderate tic is rated 10 percent, and a severe tic is rated at 30 percent. The Note to this DC indicates that these characterizations are dependent upon the frequency and severity of the symptoms and muscle groups involved. See 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Codes are not defined in the VA Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Factual History In August 2013 the Veteran reported that at times his benign essential tremor required the use of both hands when eating or drinking. See September 2013 correspondence. In June 2014 the Veteran reported that he needed to hold his wrist with his left hand to stop it from shaking in order to input the code for his work alarm system. See June 2014 substantive appeal. Private treatment records from February 2015 show the Veteran reported tremors affecting his administrative work on computers and phones, at which time his primary care provider referred him to a neurologist. Private neurological treatment records from April 2015 show the Veteran continued to report benign essential tremor -not present at rest, only with action- as mildly disabling and mildly annoying. The Veteran noted that his tremor affected his use of the computer’s mouse, drinking, and handwriting. Upon physical examination, the Veteran’s cranial nerves were intact. The Veteran had normal balance; gait; coordination; and fine motor skills. The Veteran was started on medication for his tremor. On September 2015 follow up, the Veteran reported that medication was very helpful. His physical examination showed a minimal high frequency extension tremor with action. Archimedes spiral testing showed minimal right-handed tremor. The Veteran had normal balance; gait; coordination; and fine motor skills. The Veteran was counseled to continue medication and titrate up to 250 milligrams if needed. In November 2015 the Veteran testified before a Decision Review Officer that his medication continued to calm his tremors at 50 milligrams, but he noticed that the tremors increased when his stress level went up. However, the Veteran stated that despite work-related stress, his tremors had not caused him to miss any work. The Veteran was afforded a VA examination regarding his tremors in March 2016. At that time, the Veteran continued to report tremors of the hand. The Veteran denied dysregulation of voiding or urination; erectile dysfunction; muscle weakness of the bilateral upper and lower extremities; difficulty swallowing; respiratory distress; or sleep disturbances. Upon examination his speech and gait were normal. The Veteran had full strength of the upper extremities, without muscle weakness. In addition, the Veteran denied depression, cognitive impairment, or any other mental health conditions attributable to his bilateral benign essential tremor. The VA examiner assessed the Veteran’s benign essential tremor as causing no impact on his ability to function. Analysis The Board finds that a compensable rating is not warranted. The Veteran clearly has benign essential tremors symptoms, including trouble eating, drinking, using a computer mouse, and holding a phone; especially during episodes of increased stress. However, these symptoms most closely approximate mild severity, in that they are not of such frequency or severity to warrant a compensable rating. Physical examinations show the Veteran’s coordination; gait; and fine motor skills are intact. The Veteran was able to complete Archimedes spiral testing with evidence of minimal right handed benign essential tremor, although he reported that his bilateral benign essential tremor caused interference with handwriting. In addition, the March 2016 VA examiner assessed the Veteran’s benign essential tremor as causing no impact on his ability to function. Thus, the Board must conclude that the Veteran’s benign essential tremor is no more than mild in severity. 38 C.F.R. § 4.124a, DC 8103. The Board has considered other diagnostic codes under which to evaluate the Veteran’s service-connected tremor disability to see if a compensable rating could be for assignment. However, it finds that DC 8103 most closely resembles the Veteran’s disability picture. Specifically, the record does not show dysregulation of voiding or urination; erectile dysfunction; muscle weakness of the bilateral upper and lower extremities; difficulty swallowing; respiratory distress; sleep disturbances; muscle weakness; depression; cognitive impairment, or any other mental health conditions attributable to his benign essential tremor. The Board has carefully reviewed and considered the Veteran’s statements regarding the severity of his benign essential tremor and has assigned these statements probative value as they are competent. See Layno, 6 Vet. App. at 465. Despite this, the lay statements and objective findings of record demonstrate that a rating in excess of 0 percent is not for assignment. The Board also notes that the Veteran requested an updated VA examination to assess the current severity of his tremors as his most recent examination is over 2 years old. However, there is no medical or lay evidence indicating a worsening of the condition. As such, the Board finds that an additional examination is not warranted. See Palczewski, 21 Vet. App. at 182. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Doucette, 28 Vet. App. at 69-70. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating for his service-connected benign essential tremor. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 50, 57 (1990). REASONS FOR REMAND Entitlement to increased evaluation for service-connected left knee disability. The claims file indicates that the Veteran underwent left knee arthroplasty in November 2017. A November 2018 rating decision awarded the Veteran a temporary 100 percent disability rating based on surgical treatment necessitating convalescence from November 17, 2017. Thereafter, on March 1, 2018, the rating decision continued a 10 percent disability rating. However, the 10 percent evaluation was assigned based on post-operative instructions indicating that the Veteran would “return to most of [his] normal activities with no discomfort after approximately 3 months” without the benefit of an examination. Accordingly, remand for a contemporaneous examination is required to assess the current severity of his service-connected disability. See Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). The matter is REMANDED for the following action: 1. Contact the appropriate VA Medical Center 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 or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records, to include Skagit Regional Hospital. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 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 left knee disability. The entire claims file must be made available to and be reviewed by the examiner, including the Veteran’s private treatment records, post-service VA medical records, and assertions. 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 left knee 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. The examiner must 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. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Lindsey M. Connor Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Martinez, Associate Counsel