Citation Nr: 1806893 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-11 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Whether a reduction in the evaluation of right knee, status post partial replacement surgery was proper. 2. Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran, spouse ATTORNEY FOR THE BOARD C. Edwards, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1965 to April 1969. This appeal to the Board of Veterans' Appeals (Board) arose from July 2012 and April 2015 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In May 2017, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is of record. FINDINGS OF FACT 1. The Veteran had a partial knee replacement surgery on the right knee in January 2005. Under Hudgens v. McDonald, 823 F.3d 630 (2016), partial knee replacement may be rated under 38 C.F.R. § 4.71a, Diagnostic Code 5055 for total knee replacement. 2. The Veteran's right knee disability manifested with arthritis causing painful flexion limited to 115 degrees and mild instability. 3. For the period on appeal, the Veteran's bilateral hearing loss has been manifested by, at worst, an average decibel loss of 58 in the right ear and 60 in the left with speech discrimination of 84 percent bilaterally. CONCLUSIONS OF LAW 1. The reduction of right knee, status post partial replacement surgery from 30 percent to 10 percent, effective July 2015, was improper. 38 U.S.C. § 5112 (2012); Hudgens v. McDonald, 823 F.3d 630; 38 C.F.R. §§ 3.105 (2017). 2. The criteria for a rating of 10 percent for mild right knee instability are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5257. 3. The criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107, 5110(b)(3); 38 C.F.R. §§ 3.400(o)(2), 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has considered the Veteran's claims and decided entitlement based on the evidence. The Veteran questioned the adequacy of his February 2012 VA examination on his April 2016 notice of disagreement (NOD) and was afforded another in September 2016. At his May 2017 hearing, he continued to protest the adequacy of both examinations based on the qualifications of the attending physicians. In the absence of clear evidence to the contrary, VA medical examiners are presumed competent. See also Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011); Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (same). Neither the Veteran nor his representative has provided evidence to discount the competency of the physicians performing the Veteran's examinations. Therefore, the Board finds them adequate for rating purposes. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (reaffirming 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). Rating reduction By way of history, as of a July 2012 rating decision, the Veteran's right knee was rated at 30 percent disabling under DC 5055 (for knee replacement). In an August 2012 rating decision, the Veteran was notified of a proposal to reduce this rating to one based on arthritis and limitation of motion due to clear and unmistakable error in evaluating his partial knee replacement under the rating code for total knee replacement based on extant law. The Veteran appealed the initially proposed reduction. After a DRO hearing, it was ultimately effectuated in an April 2015 rating decision. In that decision, the Veteran's right knee disability was reduced from 30 to 10 percent based on painful and limited flexion, to be effective from July 1, 2015. The Veteran filed a timely notice of disagreement (NOD) in April 2016. The Board has reviewed the available evidence regarding the right knee. The Veteran had a partial replacement surgery in January 2005. Limitation of motion and pain were residuals of the procedure. In June 2008, an arthroscopic procedure removed loose bodies in the right knee. The Veteran reports pain that averaged 5 to 7 out of 10. On longitudinal review of the record with resolution of reasonable doubt in the Veteran's favor (see 38 C.F.R. § 4.3), the Board finds the Veteran's January 2003 partial left knee replacement and subsequent June 2008 right knee arthroscopic surgery warrant a rating under Code 5055 pursuant to Hudgens v. McDonald, 823 F.3d 630 (2016). In Hudgens, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held DC 5055 may apply to partial knee replacements. The case suggests whether or not DC 5055 applies to a partial replacement is a factual determination dependent on the specifics of an individual case. Given the nature and extent of the Veteran's surgeries, including the implantation of prostheses and following removal of loose bodies, the Board finds a rating under DC 5055 appropriate in this instance. Under Code 5055 for knee replacement, prosthesis, a 100 percent rating is assigned for 1 year following the implantation of prosthesis. A 60 percent rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain or limitation of motion are rated by analogy to codes 5256, 5261, or 5262. The minimum rating is 30 percent. 38 C.F.R. § 4.71a. Under Code 5261, extension limitation of 5 degrees is rated 0 percent; 10 degrees 10 percent; 15 degrees 20 percent; 20 degrees 30 percent; 30 degrees 40 percent; and 45 degrees 50 percent. 38 C.F.R. § 4.71a. DCs 5256 and 5262 are not for application. Separate ratings may be assigned for a knee disability under Codes 5257 and 5003 where there is x-ray evidence of arthritis in addition to recurrent subluxation or lateral instability. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98. Degenerative arthritis, established by X-ray, will be rated on the basis of limitation of motion under the appropriate diagnostic criteria for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); 38 C.F.R. § 4.14. As an evaluation under DC 5055 contemplates limitation of motion, a separate rating is not warranted. DC 5257 provides ratings for recurrent subluxation or lateral instability. Slight disability warrants a 10 percent rating and a moderate disability warrants a 20 percent rating. Severe disability warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5257. For the period on appeal, the Veteran has consistently reported instability in the right knee. At his July 2017 hearing, he testified that he loses his balance two to three times per month and falls roughly three or four times per year as a result of an unstable right knee. The Board finds the Veteran competent to report his symptoms and finds his statements credible. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, surgical records indicate that the right knee lacks the ACL. A private medical opinion noted that instability was the result of a missing ACL. Given these facts, the Board finds that a 10 percent rating is warranted under diagnostic code 5257 for mild instability, and a 30 percent rating is warranted under diagnostic code 5055 for residual weakness, moderate pain, and limitation of motion. 38 C.F.R. § 4.71a, DCs 5055, 5257. See Hudgens v. McDonald, 823 F.3d 630 (2016). In making these determinations, the Board has considered, along with the schedular criteria, the Veteran's functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). Increased Rating Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. 5100 (b)(3). Except as otherwise provided, the effective date of a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(o). Consistent with the facts found, the rating may be higher or lower for periods of the time under review on appeal, that is, the rating may be "staged." See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran maintains that his bilateral hearing loss should have initially been rated as compensable or, alternatively, that the increase in severity of his disability warrants an increased rating. As explained below, the Board finds a lack of objective evidence in the record supporting the Veteran's claims. Hearing Loss Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests (Maryland CNC recording) in conjunction with average hearing thresholds determined by puretone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second. "Puretone threshold average" is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four. This average is used in all cases (including those in § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85, DC 6100. The examination must be conducted by a state-licensed audiologist without the use of hearing aids. The Veteran had service on a helicopter, and noise exposure is conceded. He reports that on release from active duty he had high frequency hearing loss that has increased in severity. The Veteran filed his claim for hearing loss in November 2010 and has received three VA audiology examinations since that time. Upon enlistment, the Veteran showed no hearing loss on examination. A November 1968 release from active duty examination showed 15/15 bilaterally on a whispered voice test. The first post-service audiology examination occurred in February 2012; puretone thresholds, in decibels, were as follows: Hertz 1000 2000 3000 4000 Avg CNC % Right 20 dB 20 dB 70 dB 100 dB 53 dB 84 Left 20 dB 25 dB 70 dB 100 dB 54 dB 84 As noted above, the rating criteria for hearing loss is determined by VA regulations. The Veteran's level of sensorineural hearing loss corresponded with a level II hearing impairment bilaterally. He demonstrated sensorineural hearing loss in the frequency ranges of 500 to 4000Hz and 6000Hz and higher. This level of hearing loss warrants a noncompensable rating utilizing Tables VI and VII in 38 C.F.R. § 4.85. The Veteran reported exposure to combat and helicopter noise without hearing protection. The examiner noted that he has worn hearing protection since service and would likely pass a whispered voice test at his current level of hearing loss. A second audiology examination occurred in December 2013; the results are noted in the table below: Hertz 1000 2000 3000 4000 Avg CNC % Right 25 dB 25 dB 75 dB 95 dB 55 dB 98 Left 25 dB 30 dB 65 dB 95 dB 54dB 98 The Veteran's level of sensorineural hearing loss corresponded with a level I hearing impairment bilaterally. This level of hearing loss warrants a noncompensable rating utilizing Tables VI and VII in 38 C.F.R. § 4.85. The Veteran described participation in combat activity, weapon fire, and work as a helicopter crew chief and mechanic without hearing protection. The examiner noted an active bilateral hearing loss condition with no change in diagnosis. A third examination occurred in August 2015 yielded the following results: Hertz 1000 2000 3000 4000 Avg CNC % Right 25 dB 30 dB 75 dB 100 dB 58 dB 84 Left 30 dB 35 dB 75 dB 100 dB 60 dB 84 The Veteran's level of sensorineural hearing loss corresponded with a level III hearing impairment bilaterally. This level of hearing loss warrants a noncompensable rating utilizing Tables VI and VII in 38 C.F.R. § 4.85. The Veteran described participation in combat activity, weapon fire, and work as a helicopter crew chief without hearing protection. The examiner noted an active bilateral hearing loss condition with no change in diagnosis. Application VA evaluates service-connected hearing loss through the mechanical application of a veteran's audiometric testing results to a rating table. See Ledermann v. Principi, 3 Vet. App. 345, 349 (1992). As noted above, hearing loss for VA purposes is determined by objective testing of hearing thresholds in conjunction with speech discrimination testing using the Maryland CNC as performed by a state-licensed audiologist. The Veteran reported that during an October 1969 pre-employment physical he was told he had significant high frequency hearing loss. He noted needing to watch television at increased volumes and difficulty understanding speakers at drive-thru windows. His spouse reported his inability to hear bells, whistles, and alerts or clearly distinguish words when background noise was present. The Veteran had but did not wear hearing aids. He affirmed an ability to hear emergency vehicles when driving. The Veteran's February 2012 examination showed the Veteran to have average hearing loss of 53 dB in the right ear and 54 dB in the left with speech discrimination at 84 percent bilaterally. As discussed above, the level of hearing loss contemplated at that time was noncompensable. Since there is no evidence of record indicating a compensable level of hearing loss was then present, an initial compensable rating for hearing loss is unwarranted. "The effective date for an increased rating, indeed, as well as for an initial rating or for staged ratings, is predicated on when the increase in the level of hearing loss can be ascertained." Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Though a veteran's lay statements are sufficient to trigger a claim for a rating increase in a hearing loss claim, hearing loss severity is determined by controlled testing of auditory thresholds and speech discrimination. The Veteran claims that his hearing has gotten a little worse since service connection. He has had two subsequent VA examinations. Examinations in 2013 and 2015 do not show a significant decrease in the Veteran's hearing since service connection. The Board recognizes that the Veteran believes he is entitled to a higher initial rating for his hearing loss. His assertions regarding high frequency hearing loss are noted. However, the weight of the evidence does not support a compensable rating. As shown above, the Veteran's bilateral hearing loss disability results in difficulty hearing and understanding speech in certain situations and listening during daily activities, such as having normal conversations and watching TV. Notably, these signs and symptoms, and their resulting impairment, are the cardinal symptoms and effects of hearing loss contemplated by the rating schedule. See Doucette v. Shulkin, 2017 WL 877340, at *5 (Vet. App. March 6, 2017) ("[T]he Court holds that the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech."); 38 C.F.R. §§ 4.85, DC 6100. Accordingly, the rating criteria contemplate the Veteran's service-connected bilateral hearing loss disability and referral for an extraschedular evaluation is not warranted. The Board is very sympathetic to the Veteran. However, to the extent that VA's current rating schedule requires a significant degree of hearing loss (as measured by audiometric testing, to include speech recognition) before a Veteran can receive increased compensation, neither the Board nor the Court of Appeals for Veterans Claims itself has the power to change those requirements. See Wingard v. McDonald, 779 F.3d 1354, 1356 (Fed. Cir. 2015) ("Congress precluded the Veterans Court from 're-view[ing] the schedule of ratings for disabilities adopted under section 1155 ... or any action of the Secretary in adopting or revising that schedule.' 38 U.S.C. § 7252 (b). That provision squarely precludes the Veterans Court from determining whether the schedule . . . substantively violates statutory constraints.") Accordingly, a compensable rating on an extraschedular basis is not warranted. In addition, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). There is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. ORDER A 30 percent rating for right knee, status post partial replacement surgery is restored. An initial compensable rating for bilateral hearing loss is denied. ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs