Citation Nr: 1806647 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-01 354 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to an initial compensable rating for service-connected hearing loss. 2. Entitlement to an initial rating in excess of 30 percent for service-connected major depressive disorder with anxiety disorder, not otherwise specified (psychiatric disability). 3. Entitlement to an increased rating in excess of 30 percent for service-connected total right knee replacement (right knee disability). 4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Joel Ban, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Sorathia, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to March 1968, with additional reservist and National Guard service from November 1981 to October 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2010, October 2014, and August 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. These issues were previously remanded by the Board in April 2017. The higher rating claims for hearing loss, psychiatric disability, and right knee disability were remanded in order to afford the Veteran a hearing before a Veterans Law Judge. The issue of entitlement to TDIU was remanded as intertwined with the higher rating claims. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in September 2017 and a transcript of the hearing is associated with the claims file. Stegall v. West, 11 Vet. App. 268 (1998). In regards to the right knee claim, an October 2014 rating decision found clear and unmistakable error in the assignment of separate evaluations for both instability of the right knee under 38 C.F.R. § 4.71a, diagnostic code 5257 and total knee replacement under 38 C.F.R. § 4.71a, diagnostic code 5055. As the Veteran's December 2014 notice of disagreement specifically disagreed with the finding of clear and unmistakable error in the assignment of separate ratings for the right knee, the issue has been previously phrased as entitlement to restoration of a separate rating for instability. However, after a sympathetic reading of the Veteran's various lay statements and Board testimony, the Board finds that it is appropriate to expand the issue to entitlement to an increased rating for right knee disability. The issue has been recharacterized on the cover page. The issue of entitlement to a higher rating for service-connected psychiatric disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's hearing loss is manifested by no more than level II impairment in the right ear and level II impairment in the left ear. 2. Effective May 1, 2013, the Veteran's total right knee replacement has been manifested by chronic residuals consisting of severe painful motion and weakness in the affected right lower extremity. 3. The Veteran is unemployable as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for bilateral hearing loss are not met. 38 U.S.C. §§ 1154(a), 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.85, Diagnostic Code (DC) 6100, 4.86 (2017). 2. Effective May 1, 2013, the criteria for a 60 percent disability rating for the Veteran's total right knee replacement are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5055 (2017). 3. The criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1154(a), 1155, 5107(b) (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initial Rating for Hearing Loss Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. The Veteran's hearing loss has been evaluated under 38 C.F.R. § 4.85, DC 6100. This diagnostic code sets out the criteria for evaluating hearing impairment using pure tone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Audiometric results are matched against Table VI to find the numeric designation, and then the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment. To evaluate the degree of disability for service-connected hearing loss, the Rating Schedule establishes 11 auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. 38 C.F.R. § 4.85. When impaired hearing is service connected in one ear only, the non-service-connected ear will be assigned a designation of level I from Table VII. 38 C.F.R. § 4.85(f). The provisions of section 4.86 address exceptional patterns of hearing loss, which are defined as when each of the pure tone thresholds at 1000, 2000, 3000, and 4000 hertz (Hz) are 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz. 38 C.F.R. § 4.86. The Veteran contends that he is entitled to a compensable rating for hearing loss due to the severity of his condition and the impact his hearing loss has on his everyday life. For the reasons stated below, the preponderance of the evidence is against a finding that the Veteran is entitled to a compensable rating for his hearing loss. The Veteran was afforded a VA examination in July 2015. The examination report revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 45 80 100 LEFT 30 30 55 90 100 The pure tone threshold average was 64 in the right ear and 69 in the left ear. He had a Maryland CNC speech recognition ability of 92 percent bilaterally. These audiometry test results equate to level II impairment in the right ear and level II impairment in the left ear using Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, level II in the right ear and level II in the left ear does not result in a compensable rating. The provisions of section 4.86 exceptional patterns of hearing loss do not apply. 38 C.F.R. § 4.86. An April 2014 VA treatment record includes an audiological evaluation. However, the treatment record reveals that the Maryland CNC controlled speech discrimination test was not employed. The audiological evaluation report is therefore inadequate for rating purposes. 38 C.F.R. § 4.85(a). In evaluating the initial rating claim, the preponderance of the evidence is against the assignment of a compensable rating for hearing loss. The Board acknowledges the Veteran's lay statements which describe his difficulty understanding conversations over the telephone or in social settings, as well as his difficulty hearing the television. Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran is competent to report that he has difficulty hearing. However, he is not competent to establish the level of his hearing disability, as this requires specific audiometric data. Moreover, the Board acknowledges the Veteran's statement that his VA doctor told him he has approximately 80 percent hearing loss. Although the Veteran is competent to report information told to him from a doctor, this statement is not sufficient to warrant a compensable rating as the Veteran did not submit any audiometric evaluations dated during the appeal period other than the April 2014 VA treatment record. The Veteran also contends that he is entitled to an extraschedular rating for his hearing loss because he has difficulty talking to people when they are at a distance or not looking at him. He reports that he has to ask people to repeat themselves and that his hearing loss impacts his ability to work. The Court recently held that "the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA's audiometric tests are designed to measure." See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). The Court further states that when a Veteran's "hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria." Id. The holding in Doucette clearly states that difficulty understanding speech or hearing sounds in various contexts are contemplated by the schedular rating criteria and therefore such manifestations of hearing loss are not for extraschedular consideration. Thus, the Veteran's reports of difficulty hearing in various contexts, to include work and social settings, are adequately considered by the rating criteria. The fact that the Veteran's hearing acuity may be less than optimal does not by itself establish entitlement to a compensable disability rating. To the contrary, under the Rating Schedule a higher rating can be awarded only when loss of hearing has reached a specified measurable level. None of the audiology reports highlighted above reveal audiological evaluations that would warrant a compensable rating. Therefore, the preponderance of the evidence is against the claim and entitlement to a compensable evaluation is not warranted. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Increased Rating for Right Knee Disability The Board notes that the procedural history regarding the Veteran's right knee disability is complex. In summary, prior to his total right knee replacement, a 20 percent rating was in effect for the knee with a separate 30 percent rating for instability of the knee. A 100 percent rating for total knee replacement was assigned effective March 19, 2012 (the date of the surgery) and a 30 percent rating was assigned effective May 1, 2013. A separate instability rating was no longer assigned after the total right knee replacement. The Veteran essentially contends that he is entitled to a higher rating for his right knee, to include either a higher rating under DC 5055 or a separate rating for instability. 38 C.F.R. § 4.71a, DC 5055 provides a total rating (100 percent) for one year following prosthetic replacement of a knee joint. A 30 percent rating, which is the minimum rating, is assigned for intermediate degrees of residual weakness, pain or limitation of motion rated by analogy to diagnostic codes 5256, 5261, or 5262. A 60 percent rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Here, a total rating has been assigned from March 19, 2012 to May 1, 2013 for the total right knee replacement. Specifically, in regards to the 100 percent rating, the Veteran contends that he is entitled to an extension of the 100 percent rating. However, DC 5055 does not provide for a 100 percent rating for longer than one year following implantation of prosthesis. A temporary 100 percent rating after May 1, 2013 for right knee disability on the basis of convalescence under 38 C.F.R. § 4.30 is also not warranted. A temporary 100 percent under 38 C.F.R. § 4.30 is warranted for one, two, or three months when there is a surgery necessitating at least one month of convalescence; surgery with severe postoperative residuals (such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization, application of a body cast, the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches); or immobilization by cast, without surgery, of one major joint or more. By May 1, 2013, the Veteran no longer required convalescence so as to warrant a rating under 38 C.F.R. § 4.30. Although the Veteran states that he uses a cane frequently, the evidence does not show that he exclusively uses a cane. Moreover, he can usually walk approximately one half mile and can complete some activities of daily living, to include activities outside of the house. Additionally, by May 1, 2013, the evidence does not show incompletely healed surgical wounds, application of a body cast, continued use of a wheelchair or crutches, and confinement to the house. Thus, an extension of the 100 percent rating after May 1, 2013 is not warranted. However, the Board finds that the probative evidence of record reveals that a 60 percent rating is warranted effective May 1, 2013. During the September 2017 Board hearing, the Veteran testified that he can usually walk only one half of a mile and that walking one half of a mile requires frequent stops. He further testified that he has difficulty changing positions, such as from going to sitting to standing. He has difficulty climbing the stair case. He testified that he cannot crouch, stoop, run, or move quickly and that he cannot lift a watermelon at the grocery store. He described that he has difficulties completing tasks, such as doing the dishes, without taking breaks to sit down and rest his knee. He stated that he continues to have problems with pain and instability and he requires a cane on a frequent basis. He also revealed that he has to leave the bathroom door unlocked in case he falls in the shower. The Veteran is competent to describe the severity of his symptoms as this is within his lay observations. Moreover, the Board finds his testimony to be credible. Accordingly, in light of this highly probative evidence regarding the Veteran's functional impairment, the Board finds that a 60 percent rating is warranted effective May 1, 2013. The Board acknowledges the Veteran's contentions regarding instability of the knee. However, the Veteran's reports of instability, weakness, and falling are adequately considered in the 60 percent evaluation for chronic residuals consisting of severe painful motion or weakness. Additionally, a separate rating for instability in addition to the 60 percent rating for total right knee replacement would be a violation of the amputation role. 38 C.F.R. § 4.68. Moreover, consideration of a rating under DC 5256, 5261, or 5262 pursuant to DC 5055 is not required as a higher rating is not available under DC 5256, 5261, or 5262. Moreover, the Board acknowledges the Veteran's request for extraschedular consideration. However, the Board finds that the rating criteria contemplates the Veteran's disability. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. 32, 37. For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. The Veteran's reports of instability and pain, as well as difficulty walking, standing, and sitting, are contemplated by the rating schedule given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The rating criteria are therefore adequate to evaluate the Veteran's right knee disability. Entitlement to TDIU The Veteran contends that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total if it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R §§ 3.340, 3.34l, 4.16(a). In the above decision, the Board granted a 60 percent rating for right knee disability. The Veteran is also in receipt of a 30 percent rating for psychiatric disability and a 10 percent rating for tinnitus, as well as a noncompensable rating for hearing loss. Effective May 1, 2013, the Veteran meets the schedular requirements of 38 C.F.R. § 4.16(a). Entitlement to a TDIU is based on an individual's particular circumstances, including education, training, and work history. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009); Beaty v. Brown, 6 Vet. App. 532 (1994). The determination of whether a veteran is unable to secure of follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The record reveals that the Veteran has a high school education and a history of working as a dish washer and janitor. The evidence of record also reveals that he has difficulty walking, standing, lifting, and sitting. Due to his service-connected right knee disability, he has difficulty washing the dishes or cleaning for extended periods of time and requires breaks approximately every 15 to 20 minutes. His psychiatric symptoms result in a lack of motivation, irritability, and a difficulty in maintaining relationships. He testified during the hearing that he is sometimes afraid to leave the apartment and that he gets angry easily. During the hearing, he also testified that his hearing loss impacted his ability to work because while he was working as a janitor he could not hear instructions from his boss. In light of this Veteran's work history as a dish washer and janitor, the Board finds that his service-connected disabilities in the aggregate exclude him from maintaining substantially gainful employment, both in a sedentary and physical environment, given his education and his difficulty hearing, being in social settings, standing, sitting, walking, lifting, and kneeling. Accordingly, entitlement to TDIU is warranted. ORDER An initial compensable rating for hearing loss is denied. Effective May 1, 2013, a 60 percent rating for total right knee replacement is granted, subject to the applicable criteria governing the payment of monetary benefits. Entitlement to TDIU is granted, subject to the applicable criteria governing the payment of monetary benefits. REMAND The Veteran was last afforded a VA examination for his psychiatric disability in February 2015. The Veteran has since submitted a September 2017 private medical opinion, which provides an indication that his psychiatric disability has worsened since his last VA examination. As such, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent, and severity of his psychiatric disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). During the September 2017 Board hearing, he also indicated that he is receiving ongoing VA treatment for his psychiatric disability. Accordingly, upon remand, the AOJ should associated outstanding VA treatment records with the claims file. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file records of VA treatment dated since July 2015. 2. Afford the Veteran an additional opportunity to submit or identify records of private treatment. Identified records should be sought. Negative responses should be associated with the claims file. 3. Schedule the Veteran for an appropriate VA psychiatric examination to determine the nature, extent, and severity of his psychiatric disability. All tests deemed appropriate by the examiner should be performed. The examiner should report pertinent findings and comment on the severity of any social and occupational impairment related to his psychiatric disability. The examiner should review the September 2017 private psychiatric opinion submitted by the Veteran. 4. Then readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs