Citation Nr: 20002170 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 14-02 656 DATE: January 9, 2020 ORDER Entitlement to an initial compensable evaluation for left ear hearing loss is denied. REMANDED 1. Entitlement to an initial evaluation in excess of 10 percent for a chronic right knee strain with limitation of extension, to include restoration of a separate compensable evaluation for limitation of flexion prior to October 5, 2015, is remanded. 2. Entitlement to a compensable evaluation for chronic rhinitis is remanded. FINDING OF FACT The Veteran’s left ear hearing loss has been manifested by, at worst, Level I acuity. CONCLUSION OF LAW The criteria for an initial compensable evaluation for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1976 to April 1980 and from July 1981 to August 1997. This claim was previously before the Board in July 2015, at which time the Board remanded it for additional development. The requested development has been completed on the issue of an increased rating for the left ear, and the claim is properly before the Board for appellate consideration. Increased Rating Entitlement to an initial compensable evaluation for left ear 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. § 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. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating service-connected hearing loss, disability evaluations are derived from a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of bilateral hearing loss range from noncompensable (0 percent) to 100 percent based on organic impairment of hearing acuity. Audiological examinations used to measure impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and pure tone audiometric tests. 38 C.F.R. § 4.85(a). The Ratings Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I for essential normal acuity through XI for profound deafness) for hearing impairment, based upon a combination of the percent of the speech discrimination and pure tone threshold average which is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. If impaired hearing is service-connected in only one ear, the nonservice-connected ear will be assigned a Roman numeral designation of Level I. Id. When the pure tone 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 Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral 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 Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). The Veteran had a VA examination in January 2011. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 20 15 15 15 40 Speech audiometry revealed speech recognition ability of 94 percent in the left ear. The pure tone threshold average on the left was 21.25. The Veteran was diagnosed with normal to mild left ear sensorineural hearing loss. The examiner did not feel that the Veteran’s hearing loss had an effect on the Veteran’s occupation or usual daily activities. The Veteran had another VA examination in June 2013. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 20 15 15 15 50 Speech audiometry revealed speech recognition ability of 96 percent in the left ear and pure tone threshold average of 24. The examiner did not feel that the Veteran’s hearing loss impacted the ordinary conditions of daily life, including ability to work. The Veteran had a VA examination in October 2015. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 15 20 25 55 Speech audiometry revealed speech recognition ability of 94 percent in the left ear and pure tone threshold average of 29. The Veteran reported that he has a difficult time communicating with others. At a July 2018 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 25 25 25 35 65 Speech audiometry revealed speech recognition ability of 94 percent in the left ear and pure tone threshold average of 38. The examiner did not feel that the left ear hearing loss impacted ordinary conditions of daily life, including the ability to work. At June 2019 VA audiology treatment, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 15 20 45 65 Speech reception thresholds were noted to be in good agreement with pure tone average that was 36.25 on the left, and word recognition ability was noted to be excellent at elevated conversational speech levels. A functional assessment supported the need for amplification, and the Veteran was issued replacement hearing aids. When applying the pure tone averages and speech recognition scores from the VA examinations, the left ear is assigned a Level I. Applying the results for the left ear from Table VI and assigning a Level I for the right ear, since service connection is not in effect for the right ear under 38 C.F.R. § 4.85(f), results in a noncompensable (0 percent) evaluation for the left ear hearing loss. See 38 C.F.R. § 4.85, Diagnostic Code 6100. It is also noted that the pure tone average from the June 2019 treatment is lower than the results from the July 2018 VA examination, and therefore the results from treatment also would not warrant a compensable rating. Exceptional patterns of hearing loss under 38 C.F.R. § 4.86 were not present. The VA examination reports additionally addressed the functional limitations related to the Veteran’s bilateral hearing loss. Martinak v. Nicholson, 21 Vet. App. 447 (2007). Nevertheless, a compensable evaluation for the Veteran’s left ear hearing loss based on any audiological findings of record is not warranted. There is no indication of functional effects that are not consistent with the degree of hearing loss shown on examination and equating to a noncompensable rating. The claim is accordingly denied. REASONS FOR REMAND VA treatment records to October 2019 have been associated with the claims file. The RO should attempt to obtain all relevant VA treatment records dated from October 2019 to the present, while the claim is in remand status. Bell v. Derwinski, 2 Vet. App. 611 (1992). 1. Entitlement to an initial evaluation in excess of 10 percent for a chronic right knee strain with limitation of extension, to include restoration of a separate compensable evaluation for limitation of flexion prior to October 5, 2015, is remanded. The Veteran is seeking an evaluation in excess of 10 percent for a chronic right knee strain with limitation of extension, to include restoration of a separate compensable evaluation for limitation of flexion. The Veteran had a VA examination in July 2018. The examiner wrote that stating the additional limitation in range of motion with repetitive use and during flare-ups would be speculative because the Veteran was not examined after repetitive use over time. The examiner did not use the information provided by the Veteran or obtain additional information from the Veteran or the treatment records such as the frequency, duration, characteristics, severity, or functional loss with repetitive use or during any flare-ups. “[B]efore the Board can accept an examiner’s statement that an opinion cannot be provided without resorting to speculation, it must be clear that this is predicated on a lack of knowledge among the ‘medical community at large’ and not the insufficient knowledge of the specific examiner.” See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017) (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). The July 2018 examiner noted that there was evidence of pain on passive range of motion testing and when the right knee was used in weight bearing. However, the examination report also does not show that range of motion was tested in both active and passive motion. Under the holding in Correia v. McDonald, 28 Vet. App. 158 (2016), a VA examination of the joints must, wherever possible, include the results of range of motion testing on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with the range of the opposite undamaged joint in compliance with 38 C.F.R. § 4.59. Therefore, the examination does not comply with the requirements of Correia. A new examination must be scheduled before the claim can be decided on the merits. 2. Entitlement to a compensable evaluation for chronic rhinitis The Veteran is seeking a compensable evaluation for rhinitis. He had a VA examination in January 2012 at which it was noted that there were symptoms during the spring and summer, including runny nose, congestion, sneezing, eye tearing, cough, and headaches. On examination the Veteran did not have a greater than 50 percent obstruction of nasal passages on both sides, complete obstruction of one side, permanent hypertrophy of the nasal turbinates, nasal polyps, granulomatous rhinitis, rhinoscleroma, Wegener’s granulomatosis, lethal midline granuloma, or other granulomatous infection. The Veteran had another VA examination in June 2013 at which he said that the condition occurred mainly in the spring, that there were “on and off” flares, and that he noticed problems around his dogs. On examination the Veteran did not have a greater than 50 percent obstruction of nasal passages on both sides, complete obstruction of one side, permanent hypertrophy of the nasal turbinates, nasal polyps, granulomatous rhinitis, rhinoscleroma, Wegener’s granulomatosis, lethal midline granuloma, or other granulomatous infection. At a November 2014 VA examination the Veteran was diagnosed with chronic maxillary and ethmoid sinusitis and rhinitis. On examination there were not any findings related to rhinitis. The Veteran had a VA examination in October 2015 at which the only diagnosis was sinusitis. There was no diagnosis of rhinitis. The examiner noted that rhinitis and sinusitis are easily confused and can be similar, particularly from the perspective of the patient. Since the Veteran last had a VA examination for rhinitis in October 2015 and it is not clear from the examination report whether there was a review of possible rhinitis related symptoms, the Board finds that he must be afforded a contemporaneous VA examination to assess the current severity of rhinitis related symptoms. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran’s pertinent medical history). The matters are REMANDED for the following action: 1. Obtain VA treatment records from October 2019 to the present. 2. Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected right knee disability. The electronic claims file must be reviewed by the examiner. All indicated studies and testing must be conducted, and all pertinent symptomatology must be reported in detail. In reporting the results of range of motion testing for both knees, the examiner should identify any objective evidence of pain, and the degree at which pain begins. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If it is not feasible to do so to any degree of medical certainty without resorting to speculation, then the examiner must provide an explanation for why this is so. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups, regardless of whether the Veteran can be tested with repetitive use or is examined during a flare-up. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional right knee range of motion loss. If it is not feasible to do so to any degree of medical certainty without resorting to speculation, the examiner must provide an explanation for why this is so. In accordance with the Correia case, the right knee range of motion should be tested actively and passively and after repetitive use. If the VA examiner is unable to conduct the required testing, he or she should clearly explain why this is so. 3. Schedule the Veteran for an appropriate VA examination to ascertain the severity of rhinitis. The entire claims file must be made available to and reviewed by the examiner. The examiner should state whether the Veteran has any symptoms related to rhinitis regardless of whether there is a current diagnosis, including polyps, a greater than 50 percent obstruction of the nasal passage on both sides, and a complete obstruction of the nasal passage on one side. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott Shoreman, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.