Citation Nr: 18161162 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 17-01 878 DATE: December 28, 2018 ORDER Entitlement to service connection for hyperhidrosis is denied. Entitlement to an initial compensable rating for a right knee disability is denied. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s claimed hyperhidrosis is not related to any injury, disease or event incurred in service. 2. The weight of the evidence is against a finding that the Veteran’s right knee disability is manifested by instability or joint line pain or tenderness; the Veteran demonstrated full range of motion in his right knee, and his range of motion has not been shown to be so functionally limited as to warrant a compensable rating; the Veteran has not been shown to experience locking or effusion in his right knee; semilunar cartilage has not been removed from his right knee; and ankylosis has not been shown in the Veteran’s right knee. CONCLUSIONS OF LAW 1. The criteria for service connection for hyperhidrosis have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2018). 2. The criteria for an initial compensable rating for a right knee disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2005 to September 2010. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that argument received from the Veteran’s representative in October 2018 associated with the Veteran’s increased rating claim for a right knee disability indicates that the Veteran may be unemployable due to all of his service-connected disabilities. This evidence is sufficient to raise the issue of entitlement to a TDIU. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). Service Connection - Hyperhidrosis The Veteran’s claim for hyperhidrosis was denied in a March 2015 rating decision from which the Veteran appealed. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A review of the Veteran’s service treatment reports does not reflect any complaints, findings, or treatment for hyperhidrosis. The Veteran did not report any problems with sweating or hyperhidrosis at his separation examination in September 2010. At a VA examination in January 2015, the Veteran reported that he began to experience excessive sweating to the bilateral axilla during puberty at around age thirteen. He indicated that the sweating to the axilla worsened while he was deployed during service. He stated that he sought treatment and evaluation for the sweating and was prescribed a roll-on antiperspirant that did not work and only irritated his skin. He denied any current treatment for hyperhidrosis. Following a review of the claims file, interview with the Veteran and physical examination, the examiner diagnosed the Veteran with hyperhidrosis and opined that it was less likely than not incurred in or caused by service. The examiner’s rationale was that the Veteran reported that the excessive sweating started prior to service and there was no documentation of the condition at separation from service. In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for hyperhidrosis. In the current case, the Veteran has not submitted any medical evidence specifically indicating that his claimed hyperhidrosis is related to his service. Nevertheless, in an effort to assist the Veteran in establishing service connection, the Board did obtain VA opinions to investigate the nature of his claimed disability and the relationship, if any, to his period of service. The January 2015 VA examiner’s opinion specifically found that the Veteran’s claimed hyperhidrosis was unrelated to his active duty service. The examiner reviewed the Veteran’s service treatment records, post-service treatment records, and the statements of the Veteran. The VA examiner was fully aware of the Veteran’s past medical history. Moreover, the opinion has not been questioned or undermined by any other medical opinions. Thus, the Board finds the VA examiner’s opinion to be highly probative and entitled to great weight. As to the Veteran’s belief that his hyperhidrosis is related to his period of service, the Board acknowledges the holding of the United States Court of Appeals for the Federal Circuit in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is considered competent to observe symptoms such as sweating, but determining a diagnosis for, or cause of, the symptoms requires medical training and expertise. Likewise, the determination of the etiology of the hyperhidrosis is a medically complex determination that requires advanced knowledge of the mechanical systems of the body. Here, the Veteran has not been shown to have the requisite medical qualifications and/or training to address etiology of the hyperhidrosis. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for hyperhidrosis and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3. Increased Rating - Right Knee Disability In a March 2015 rating decision, the Veteran was granted service connection for a right knee disability and assigned a noncompensable rating effective June 6, 2014. The Veteran disagreed with the rating assigned and this appeal ensued. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Court of Appeals for Veterans Claims (Court) has held that the final sentence of § 4.59 creates a requirement that certain range of motion and other testing be conducted whenever possible in cases of joint disabilities. Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran was afforded a VA examination for his right knee disability in January 2015. He reported right knee stiffness but denied pain. He denied flare-ups that impact the function of the knee and lower leg. Range of motion testing revealed flexion to 140 degrees and extension of 0 degrees. There was no pain noted on examination, no evidence of pain with weight-bearing, and no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The examiner indicated that pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over a period of time. There were no other additional factors which contributed to the disability. Muscle strength was normal and there was no evidence of muscle atrophy. Ankylosis was not present. There was no history of recurrent subluxation, no history of lateral instability, and no history of recurrent effusion. The Veteran did not have a meniscal condition and there were no other pertinent findings, complications, conditions, signs, or symptoms related to the right knee condition. The Veteran ambulated with no assistive devices. X-rays did not reveal degenerative or traumatic arthritis. There was objective evidence of crepitus. The examiner diagnosed the Veteran with right knee strain and Osgood-Schlatter disease. Post-service treatment reports do not reflect any complaints, findings, or treatment for the right knee. The Veteran’s right knee disability is rated as noncompensably disabling pursuant to Diagnostic Code 5257. 38 C.F.R. § 4.71a. Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability; and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. The Veteran’s right knee disability was not manifested by any recurrent subluxation or lateral instability. As such as compensable rating is not warranted pursuant to Diagnostic Code 5257. The Board will next address whether a compensable rating is warranted under any other potentially relevant Diagnostic Codes. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, a noncompensable rating is assigned when flexion of the leg is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.71, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable rating is assigned when extension of the leg is limited to 5 degrees; a 10 percent rating is assigned when extension of the leg is limited to 10 degrees; and a 20 percent rating is assigned when extension is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Veteran had full range of motion from 0 to 140 degrees. As such, a compensable rating is not warranted pursuant to Diagnostic Code 5260 or 5261. Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, a 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of “locking”, pain and effusion into the joint. Under 38 C.F.R. § 4.71a, Diagnostic Code 5259, a 10 percent rating is assigned for symptomatic removal of symptomatic semilunar cartilage. Semilunar cartilage is synonymous with the meniscus. The VA examiners of record specifically found that there is no evidence of any meniscal conditions. Consequently, a separate compensable rating is not warranted for the right knee under either Diagnostic Codes 5258 or 5259. Diagnostic Code 5262 pertains to impairment of the tibia and fibula. A 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability; a 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability; and a 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion and requiring a brace. There is no evidence of malunion or nonunion of the tibia and fibula at the examination of record. The only other Diagnostic Codes pertaining to the knee are Diagnostic Code 5256 (ankylosis of the knee) and 5263 (genu recurvatum). The Veteran does not warrant compensable ratings under any of these Diagnostic Codes as neither of these conditions have been shown. The Board has considered whether a higher disability evaluation 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 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38C.F.R. § 4.40. However, in this case, the Veteran’s right knee disability is not manifested by any functional loss due to any additional factors. As such, a compensable rating is not warranted for the right knee disability at any time during the relevant appeal period. 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 (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). REASONS FOR REMAND A review of the claims file reveals that a remand is necessary before a decision on the merits of the remaining claims can be reached. Left Knee Disability The Veteran was treated for a left knee sprain during his active duty service. While the Veteran was afforded a VA examination which addressed his right knee, the Veteran has not been afforded a VA examination for the claimed left knee disability. In service connection claims, VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or a service-connected disability; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. 38 C.F.R. § 3.159(c) (2018); McLendon v. Nicholson, 20 Vet. App. 79 (2006). A VA examination should be obtained in order to ascertain the etiology of the claimed left knee disability. Hearing Loss A review of the claims file reflects that the Veteran was apparently afforded a VA examination for his claimed bilateral hearing loss in February 2015. See March 2015 C and P entry and VA outpatient treatment reports dated in March 2015. However, a review of the claims file does not include a copy of the examination report. In order to properly adjudicate the claim, a copy of the examination report should be associated with the claims file. If the examination report is not available, another examination should be conducted. TDIU The Board also notes that the Veteran was not provided appropriate notice with respect to the claim for a TDIU. The Veteran should be provided with notice and a VA Form 21-8940. Pursuant to Rice, no formal claim of TDIU is required. However, as the claim requires additional development, on remand, the AOJ should provide the Veteran with a VA Form 21-8940 if he wishes to submit it in support of his claim for TDIU. The TDIU issue is “inextricably intertwined” with the resolution of the service connection claims for a left knee disability and hearing loss, therefore, the Agency of Original Jurisdiction (AOJ) must reconsider these claims prior to adjudication of the Veteran’s TDIU claim by the Board. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of the claimed left knee disability. The claims file must be made available to and reviewed by the examiner prior to the examination. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner should thereafter provide an opinion as to whether it at least as likely as not (50 percent probability or more) that any current or recent disability of the left knee had its onset during active service; or, is otherwise related to any in-service disease, event, or injury. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. A complete rationale for all opinions expressed must be provided. If any opinion cannot be provided without resorting to speculation or remote possibility, the examiner should indicate why that is so. 2. Associate a copy of the March 2015 VA audiological examination with the claims file. If the examination report is not available, schedule the Veteran for a VA audiology examination. The examiner should review the claims file and note that review in the report. The examiner should elicit a complete history from the Veteran, the details of which should be included in the examination report. The examiner should explain the basis for any opinion and base the opinion on sufficient facts or data with reference to medical literature, if possible. Following administration of any necessary testing, examination and interview of the Veteran, and review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any current hearing loss disability either began during or was otherwise caused by the Veteran’s military service. A complete rationale should be provided for any opinion offered. If any opinion cannot be provided without resorting to speculation or remote possibility, the examiner should indicate why that is so. 3. Then, readjudicate the issues on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Cryan, Counsel