Citation Nr: 1806651	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  13-10 032	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia


THE ISSUES

1. Entitlement to an increased rating for residuals of status post debridement of hypertrophic synovium of the right knee, currently rated as 10 percent disabling.

2. Entitlement to an increased compensable rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

C. L. Wasser, Counsel
INTRODUCTION

The Veteran served on active duty from December 1984 to August 2006. 

This case comes to the Board of Veterans' Appeals (Board) on appeal from May 2009 and February 2013 RO decisions. 

A hearing was held in July 2016 before the undersigned Veterans Law Judge (VLJ) of the Board, and a transcript of this hearing is of record.

In December 2016, the Board remanded this case to the Agency of Original Jurisdiction (AOJ) for additional development. 

In a May 2017 rating decision, the AOJ granted service connection for lateral epicondylitis of the right elbow (rated 10 percent disabling), lateral epicondylitis of the left elbow (rated noncompensable), and for left knee strain (rated 10 percent disabling), each effective November 7, 2008. These issues are no longer in appellate status, since the Veteran did not appeal the ratings or effective dates assigned in this decision. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (indicating he must separately appeal for a higher rating and earlier effective date since these are "downstream" issues from his initial claim for service connection).

The case was subsequently returned to the Board.


FINDINGS OF FACT

1. Throughout the appeal period, the Veteran's service-connected right knee disability has been manifested by no more than flexion limited to 110 degrees, extension to 0 degrees, and no objective evidence of recurrent subluxation or lateral instability.

2. The weight of the probative evidence shows that the Veteran's bilateral hearing loss is manifested by no worse than Level II hearing acuity in the right ear and Level I hearing acuity in the left ear.


CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5014, 5260, 5261, 5257 (2017).

2. The criteria for an increased rating in excess of 0 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Notice and Assistance

VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

VA's duty to notify was satisfied by a December 2008 letter. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 

The Veteran was afforded a hearing before the Board and a copy of the transcript is of record. There is no allegation that the hearing provided to the Veteran was deficient in any way and further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). 

VA also fulfilled its duty to assist the Veteran with these claims by obtaining all potentially relevant evidence, which is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993).  To this end, VA has obtained service treatment records, VA and private medical records, assisted the appellant in obtaining evidence, and arranged for VA compensation examinations and medical opinions as to the severity of his right knee disability and bilateral hearing loss. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise.  

Only if the record is inadequate or there is suggestion the current rating may be incorrect is there then a need for a more contemporaneous examination. 38 C.F.R. § 3.327(a). Here, the most recent VA compensation examinations for these conditions were conducted in February and March 2017. The mere passage of time since does not, in and of itself, necessitate another examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). A medical opinion is adequate when it is based upon consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  

The Board finds that the examination reports were each sufficiently detailed with recorded history, impact on employment and daily life, and clinical findings. The examinations were conducted by competent medical professionals. In addition, it is not shown that the examinations were in any way incorrectly conducted or that the VA examiners failed to address the clinical significance of the Veteran's symptoms. Further, the VA examination reports addressed the applicable rating criteria. In this regard, the reports of record contain sufficiently specific clinical findings and informed discussion of the pertinent history and features of the service-connected right knee disability and bilateral hearing loss to provide probative medical evidence for rating purposes. The Board finds that the most recent VA examinations are adequate as they provide the information needed to properly rate his right knee disability and bilateral hearing loss. 38 C.F.R. §§ 3.327(a), 4.2. The Board finds that another examination is not needed since there is sufficient evidence, already on file, to fairly decide these claims.  

The Board further finds that the RO has substantially complied with its December 2016 remand orders. In this regard, the Board directed that additional treatment records be obtained and VA examinations conducted, and this has been done.
Therefore, the Board finds that no further development is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268   (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claims at this time.

Law and Regulations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) 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. Separate diagnostic codes identify the various disabilities.  Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are:  interpreting 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; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10.

Governing law provides that the evaluation of the same manifestation under different diagnoses, known as pyramiding, is to be avoided. See Esteban v. Brown, 6 Vet. App. 259 (1994); see also 38 C.F.R. § 4.14. In Esteban, the United States Court of Appeals for Veterans Claims (Court) found that when a Veteran has separate and distinct manifestations from the same injury he should be compensated under different Diagnostic Codes.

When rating the Veteran's service-connected disability, the entire medical history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. (1991). In general, the degree of impairment resulting from a disability is a factual determination and the Board's primary focus in such cases is upon the current severity of the disability.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994).  However, staged ratings are appropriate in any initial rating/increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's lay statements and testimony are considered competent evidence when describing his symptoms of disease or disability that are non-medical in nature. Barr v. Nicholson, 21 Vet. App. 303 (2007), Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). His lay statements and testimony regarding the severity of his symptoms must be viewed in conjunction with the objective medical evidence of record and the pertinent rating criteria. And the ultimate probative value of his lay testimony and statements is determined not just by his competency, but also his credibility to the extent his statements and testimony concerning this is consistent with this other evidence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See also 38 C.F.R. § 3.159(a)(1) and (a)(2).


Right Knee Disability 

Throughout the rating period on appeal, the Veteran's service-connected right knee disability (residuals, status post debridement of hypertrophic synovium of the right knee), has been rated as 10 percent disabling under Diagnostic Codes 5260-5014.

The Veteran contends that his right knee disability is more disabling than currently evaluated. In a January 2009 statement and in his May 2010 notice of disagreement, the Veteran asserted that his right knee disability had worsened, with increased episodes of pain and limited mobility. He said he had had to significantly reduce the use of his knee by limiting movement, using a brace, and putting less weight on his knee by limping. He said everyday tasks such as squatting, lifting or ascending or descending stairs aggravated his condition. At his Board hearing, the Veteran testified that he has constant right knee pain (ranging from level 7 to 10), weakness with overexertion, and occasional giving way. He said he had instability of the right knee. He stated that he used a brace and sometimes a cane.

Diagnostic Code 5010 concerns arthritis due to trauma; it requires establishment by X-ray evidence. Diagnostic Code 5010 is to be rated the same as DC 5003. Under DC 5003, degenerative or traumatic arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. However, in the absence of limitation of motion, the disability is to be rated as 10 percent disabling with x-ray evidence of involvement of two or more major joints or two or more minor joint groups; and as 20 percent disabling with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Disability ratings under DC 5003 is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added. Multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities are considered groups of minor joints. 38 C.F.R. § 4.45 .

The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II.

Diagnostic Code 5014 pertains to osteomalacia, which is rated on limitation of motion of the affected part, as arthritis, degenerative. 38 C.F.R. § 4.71a.

Under Diagnostic Code 5260, pertaining to limitation of leg flexion, a noncompensable evaluation is assigned where flexion is limited to 60 degrees. A 10 percent rating is warranted where flexion is limited to 45 degrees. A 20 percent evaluation is for application where flexion is limited to 30 degrees. Finally, a 30 percent rating applies where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260.

Under Diagnostic Code 5261, pertaining to limitation of leg extension, a noncompensable evaluation is assigned where extension is limited to 5 degrees. A 10 percent rating is warranted where extension is limited to 10 degrees. A 20 percent evaluation is for application where extension is limited to 15 degrees. A 30 percent rating applies where extension is limited to 20 degrees. A 40 percent rating is warranted where extension is limited to 30 degrees. Finally, a 50 percent evaluation is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261.

Knee impairment with recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. 

Symptomatic removal of the semilunar cartilage is assigned a maximum 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5259. Disabilities involving cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion into the joint are assigned a maximum 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258.

VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, respectively. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604  (July 1, 1997; revised July 24, 1997). The General Counsel subsequently clarified in VAOPGCPREC 9-98 (August 14, 1998) that for a knee disability rated under Diagnostic Code 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. VA's General Counsel further explained that, if a Veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59 . This is because, read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59  provide that painful motion due to degenerative arthritis, which is established by X-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).

VA's General Counsel has additionally held that separate ratings may also be assigned for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59, 990 (2004). Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same knee, the limitations must be rated separately to adequately compensate him for functional loss associated with injury to his leg and knee. Id.  

On VA compensation examination of the right knee in July 2007 (prior to the rating period on appeal), the Veteran complained of pain, weakness, stiffness and fatigability. He denied swelling, heat, redness, giving way, locking and decreased endurance. He used a knee brace. He denied episodes of dislocation or subluxation. On examination of the right knee, there was no edema, erythema or warmth, and no crepitus on passive range of motion. There was tenderness over the patella tendon. Flexion was from 0 to 110 degrees with pain from 105 to 110 degrees. Extension was to 0 degrees without pain. Repetition times three produced increased pain with flexion and extension. There was no weakness, decreased endurance or lack of coordination, and no additional loss of motion. The medial and lateral collateral ligaments showed no motion, and there was no varus or valgus in neutral position. Drawer's test and McMurray's tests were negative. An X-ray study of the right knee showed mild degenerative changes. The diagnosis was degenerative joint disease of the right knee, mildly disabling.

The Veteran filed the instant claim for an increased rating in November 2008.

A November 2008 outpatient treatment record from the 78th Medical Group reflects that the Veteran complained of chronic right knee pain; he denied swelling and said he was able to straighten the knee. On examination of the right knee, there was full range of motion, and no effusion, erythema, warmth, deformity, or crepitus. The patella was not shifted, there was no tenderness to palpation, no pain on motion, no medial or lateral instability, and anterior drawer, posterior drawer, Lachman's and apprehension tests were negative. There was tenderness on ambulation.

On VA examination in January 2009, range of motion of the right knee was from 0 to 130 degrees. Range of motion of the left knee was from 0 to 125 degrees. There was no instability or laxity of the medial and lateral collateral ligaments, or the cruciate ligaments. The medial and lateral meniscus showed no abnormality. There was mild hypermobility of the patellae, and very mild crepitus to flexion extension of the knees. The Veteran complained of pain in both knees in the last 10 degrees of flexion, and the last 5 degrees of extension. With repetition of motion, motion improved slightly, and the Veteran continued to have discomfort in the last ten degrees of flexion in both knees, and the last 50 to 10 degrees of extension in both knees. A January 2009 X-ray study of the right knee showed mild medial compartment arthritis.

On VA examination in January 2013, the examiner diagnosed osteomalacia of the right knee. The Veteran complained of right knee pain when climbing stairs and when he exerted himself. He reported flare-ups with increased walking. Range of motion of the right knee was as follows: 140 degrees of flexion and 0 degrees of extension, each with no objective evidence of painful motion. After three repetitions, there was no addition limitation of motion. After repetitive use, the Veteran complained of mild pain with flexion, but there were no objective signs of pain. There was tenderness to palpation of the knee, normal (5/5) strength, and no instability. The Veteran did not use any assistive devices. An X-ray study did not show degenerative or traumatic arthritis. The examiner indicated that the Veteran's bilateral knee conditions impacted his ability to work, as the Veteran reported that he limited his walking and typically needed to be seated. He said he worked on a part-time basis and was performing to his boss's satisfaction.

On VA examination in February 2017, the examiner diagnosed status post debridement of hypertrophic synovium. The Veteran reported that since separation from service his knee pain had progressively worsened. Range of motion of the right knee was from 0 to 110 degrees. Range of motion of the left knee was from 0 to 120 degrees. The examiner stated that pain was noted on examination, during flexion bilaterally, but did not result in or cause functional loss. There was no evidence of pain on weightbearing, and no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions, and there was no additional functional loss or range of motion after three repetitions. Additional contributing factors of disability included swelling, disturbance of locomotion, and interference with standing. Muscle strength was full (5/5) in flexion and extension, and there was no muscle atrophy. Joint stability testing showed no instability. The examiner indicated that the Veteran does not have a meniscus condition. The examiner stated that the Veteran regularly used a brace. An X-ray study of the right knee showed arthritis. The examiner opined that the Veteran's knee disability did not impact his ability to perform occupational tasks. The examiner opined that there was no pain noted with non-weightbearing or with passive range of motion.

Throughout the rating period on appeal, the right knee disability has been rated as 10 percent disabling. After a review of all of the evidence of record, the clinical reports do not document that the Veteran's right knee disability was productive of functional impairment consistent with limitation of extension to 15 degrees or more or limitation of flexion to 30 degrees or less as required under Diagnostic Codes 5261 and 5260 for a rating in excess of 10 percent at any time during this portion of the appeal period. In fact, flexion of the right knee was full on examination in November 2008, to 125 degrees on VA examination in January 2009, full on VA examination in January 2013, and to 110 degrees in February 2017, and extension was consistently full during this period. See 38 C.F.R. § 4.71 , Plate II. Even considering the effects of pain on motion, there is no probative evidence that pain reduced motion during this period to the extent required for an increased rating in excess of 10 percent under the limitation of motion codes. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In essence, the medical reports on file do not demonstrate the level of loss of motion (in either flexion or extension) necessary for either a higher rating or separate ratings based on limitation of flexion or extension at any time during this portion of the appeal period. The current 10 percent rating is proper for the right knee disability based on X-ray evidence of arthritis with painful motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5010; Lichtenfels, supra; VAOPGCPREC 9-98. 

The Board will also consider whether an increased rating is warranted under other relevant Diagnostic Codes. The Board finds that a separate or increased rating is not warranted under Diagnostic Code 5257, pertaining to instability, as the preponderance of the probative evidence does not show recurrent subluxation or lateral instability. Although the Veteran has asserted that he has instability of the right knee, the Board finds that the military and VA examiners' opinions are more probative in this regard, as the objective findings on examination are more probative than the Veteran's lay statements.

An increased rating is not warranted under any other potentially applicable rating criteria throughout the rating period on appeal. Ankylosis of the right knee is not shown. Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996), citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."). Thus, Diagnostic Code 5256 does not apply.

Similarly, the evidence does not show a dislocated or absent semilunar cartilage (Diagnostic Codes 5258, 5259), impairment of the tibia or fibula (Diagnostic Code 5262), or genu recurvatum (Diagnostic Code 5263), and these codes are also inapplicable. There are no other relevant codes for consideration.

As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply, and the claim for an increased rating for a right knee disability must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran has not raised any other issues with respect to the increased rating claim, nor have any other assertions been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017).

Bilateral Hearing Loss

Throughout the rating period on appeal, the Veteran's service-connected bilateral hearing loss has been rated as noncompensable under Diagnostic Code 6100.

The Veteran contends that his bilateral hearing loss is more disabling than currently evaluated. In his May 2010 notice of disagreement, the Veteran asserted that he had a hearing aid in his right ear, difficulty understanding conversation, and often had to ask others to repeat themselves. He stated that hearing was more difficult with even a small amount of background noise. At his Board hearing, the Veteran testified that he has problems understanding speech.

The assignment of a disability rating for service-connected hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 

The severity of a hearing loss disability is determined by applying the criteria set forth at 38 C.F.R. § 4.85. Under these criteria, evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000 and 4000 Hertz.

For VA rating purposes, an examination for hearing impairment must meet the four requirements of 38 C.F.R. § 4.85 (a). It must be conducted by a state-licensed audiologist, the examination must include a controlled speech discrimination test (Maryland CNC), the examination must include a puretone audiometry test, and the examination must be conducted without the use of hearing aids.

To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85. To evaluate an individual's level of disability, Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the puretone threshold average. 38 C.F.R. § 4.85 (b). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear. 38 C.F.R. § 4.85 (e). 

Under 38 C.F.R. § 4.86, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86  (a). Further, when the average puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Level. 38 C.F.R. § 4.86 (b). As an initial matter, the Board finds that an exceptional pattern of hearing under 38 C.F.R. § 4.86  in the context of the Veteran's most recent VA examination has not been shown and that regulation is inapplicable.

On VA examination in January 2009, audiometric testing revealed right ear decibel thresholds of 30, 25, 30, and 40, and left ear decibel thresholds of 25, 20, 25, and 25, at the respective frequencies of 1000, 2000, 3000, and 4000 hertz. Speech recognition scores using the Maryland CNC Test were 94 percent in the right ear and 98 percent in the left ear. The examiner diagnosed normal to mild sensorineural hearing loss in the right ear and normal hearing sensitivity in the left ear. Word recognition was excellent in both ears.

On VA examination in January 2013, audiometric testing revealed right ear decibel thresholds of 30, 25, 35 and 40, and left ear decibel thresholds of 30, 25, 25, and 25, at the respective frequencies of 1000, 2000, 3000, and 4000 hertz. Speech recognition scores using the Maryland CNC Test were 94 percent in the right ear and 98 percent in the left ear. The examiner diagnosed bilateral sensorineural hearing loss and indicated that the Veteran's hearing loss impacted the ordinary conditions of daily life, including the ability to work. The Veteran reported that it was difficult to understand conversation in a noisy environment.

On VA examination in March 2017, audiometric testing revealed right ear decibel thresholds of 35, 30, 45 and 30, and left ear decibel thresholds of 25, 20, 30, and 20, at the respective frequencies of 1000, 2000, 3000, and 4000 hertz. Speech recognition scores using the Maryland CNC Test were 84 percent in the right ear and 92 percent in the left ear. The examiner diagnosed bilateral sensorineural hearing loss and indicated that the Veteran's hearing loss impacted the ordinary conditions of daily life, including the ability to work. The Veteran reported that if he was in a group and was having a conversation, outside noise made it hard to understand clearly. He said that if he was outside, everything kind of "blends," and every once in a while he did not hear something important. The examiner opined that the Veteran had mild sensorineural hearing loss with a drop to a moderately severe sensorineural hearing loss in the right ear, and essentially normal hearing with the exception of a mild sensorineural hearing loss at 500Hz and 3kHz in the left ear. The examiner stated that the word discrimination scores were considered good.

The findings on the Veteran's VA audiometric studies in January 2009 and January 2013 correlate to a designation of level I hearing in the right ear and level I hearing in the left ear, using Table VI. Table VII of § 4.85 provides for a 0 percent evaluation under Diagnostic Code 6100 when those levels of hearing are demonstrated.

The findings on the Veteran's VA audiometric studies in March 2013 correlate to a designation of level II hearing in the right ear and level I hearing in the left ear, using Table VI. Table VII of § 4.85 provides for a 0 percent (noncompensable) evaluation under Diagnostic Code 6100 when those levels of hearing are demonstrated.

The Board appreciates the difficulties which the Veteran says he experiences because of his hearing loss. However, according to the audiological test results during the pendency of the appeal, compared to the rating criteria, a rating in excess of 0 percent for his bilateral hearing loss is not warranted. See Lendenmann, supra. In sum, the Board finds that for these reasons and bases, the preponderance of the evidence is against an increased rating for bilateral hearing loss, throughout the rating period on appeal. 38 C.F.R. § 4.85, Diagnostic Code 6100. 

The Board notes that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). In this case, the VA examiners noted that the Veteran reported hearing difficulty which affected his daily and occupational activities. The Board finds that such functional impairment, in addition to the Veteran's other reports, has been appropriately considered but the overall evidence, as previously discussed, fails to support assignment of an increased evaluation. 

The Board finds that the rating criteria contemplate the Veteran's bilateral hearing loss disability. The Veteran's hearing loss is manifested by decreased hearing acuity. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, including his difficulty hearing and understanding speech. 

The Board notes that this conclusion is consistent with the Court's holding in Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) ("[W]hen a claimant'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"). The Board further finds that other than difficulty hearing or understanding speech, the record on appeal contains no evidence of other symptoms attributable to the service-connected hearing loss.

The Veteran has not raised any other issues with respect to the increased rating claim, nor have any other assertions been reasonably raised by the record. See Doucette, 28 Vet. App. at 369-70.

As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply, and the claim for an increased rating for bilateral hearing loss must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

An increased rating in excess of 10 percent for service-connected right knee disability is denied.

An increased compensable rating for service-connected bilateral hearing loss is denied.




S. L. Kennedy 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs