Citation Nr: 20003347 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 13-23 069 DATE: January 14, 2020 ORDER Entitlement to service connection for frostbite, both big toes, is denied. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the right knee is denied. REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that frostbite, both big toes, began during active service, or is otherwise related to an in-service injury or disease. 2. Resolving reasonable doubt in the Veteran’s favor, bilateral hearing loss began during active service. 3. The Veteran’s degenerative arthritis of the right knee is characterized by noncompensable limitation of motion with pain. CONCLUSIONS OF LAW 1. The criteria for service connection for frostbite, both big toes, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.385. 3. The criteria for an initial disability rating in excess of 10 percent for degenerative arthritis of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.71a, Diagnostic Code 5010-5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1977 to April 1981. He was honorably discharged. In August 2017, a travel board hearing was held before the undersigned. A transcript of that hearing is of record. In January 2018, the Board remanded the Veteran’s claims for additional development, including the scheduling of examinations. Following the January 2018 remand, the Veteran missed his first examination, which VA rescheduled on the ground that the Veteran was incarcerated at the time of this examination, and had therefore shown good cause for not attending. See July 2019 deferred rating. In July 2019, the Veteran submitted a VA 572 Request for Change of Address. The RO scheduled the Veteran for VA examinations for August 30, 2019. Invoices and other records submitted in September 2019 indicate that the Veteran did not attend these examinations. In September 2019, the RO sent a supplemental statement of the case (SSOC) to the Veteran, indicating that because of his failure to show good cause for attending these examinations, his claims were being rated based on the evidence of record. The SSOC was sent to the address indicated on the July 2019 VA 572. The Veteran has provided no explanation as to why he failed to attend the examination scheduled for August 30, 2019. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under VA regulations, it is incumbent upon the Veteran to submit to a VA examination regarding VA compensation or pension benefits. See Dusek v. Derwinski, 2 Vet. App. 519 (1992). When necessary or requested, the Veteran must cooperate with the VA in obtaining evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (“The duty to assist is not always a one-way street.”). When entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without “good cause,” fails to report for such examination, action shall be taken. 38 C.F.R. § 3.655(a). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). 1. Entitlement to service connection for frostbite, both big toes The Board finds that the Veteran has not provided good cause for his failure to attend the examination scheduled for his claim frostbite claim. As this is an original claim of entitlement to service connection, the Board will decide this claim based on the evidence of record. 38 C.F.R. § 3.655(b). The first element of service connection is met, in that a May 2011 VA examination indicates cold sensitivity in the Veteran’s feet. The second element of service connection is met, in that in his January 2012 notice of disagreement, the Veteran argues that he was exposed to extreme cold temperatures during service. Unfortunately, the nexus element of service connection is not met. A May 2011 VA medical opinion concludes that the Veteran’s cold injury is less likely than not related to service, based on the lack of evidence of in-service treatment for a cold injury. This opinion is entitled to limited probative value, in that it does not address the Veteran’s lay statements about in-service injury. However, there is no additional lay or medical opinion evidence of record to support the existence of a nexus between a current disorder and service, and the evidence of record does not otherwise link the Veteran’s claimed disability to service. Therefore, the final element of service connection is not met and the Veteran’s claim must be denied. 2. Entitlement to service connection for bilateral hearing loss As noted previously, the August 2010 VA medical opinion has been held to be inadequate, based on the failure to address the potential impact of in-service acoustic trauma, including exposure to noise from 105 Howitzers. See January 2018 Board remand. The Board finds that the Veteran has not provided good cause for his failure to attend the examination scheduled for his hearing loss claim. As this is an original claim of entitlement to service connection, the Board will decide this claim based on the evidence of record. 38 C.F.R. § 3.655(b). Service connection will be presumed for certain chronic diseases, including bilateral hearing loss, if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309. Because there is no indication that the Veteran’s hearing loss was manifested within one year of service, service connection is not available on a presumptive basis. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Even if disabling loss is not demonstrated at separation, a veteran may establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Alternatively, service connection may be established by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed in 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran argues that he began to experience hearing problems while firing Howitzers during service. His August 2010 VA examination provides for a diagnosis of bilateral hearing loss. Puretone thresholds, in decibels, are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 45 50 55 LEFT 30 35 50 55 50 Speech recognition ability using the Maryland CNC test is 74 percent in the right ear and 64 percent in the left ear. For both ears, the August 2010 VA examination indicates auditory thresholds in excess of 40 decibels at 2000 Hz, 3000 Hz, and 4000 Hz, auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz greater than 26 decibels, and Maryland CNC Test scores less than 94 percent. These values constitute a current diagnosis of bilateral hearing loss. See 38 C.F.R. § 3.385. Further, there is evidence of loss of hearing during service. The Veteran’s April 1977 entrance audiogram contains the following puretone thresholds, in decibels, measured under the ANSI standard: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 5 5 LEFT 5 5 10 5 5 The Veteran’s February 1981 separation audiogram contains the following puretone thresholds, in decibels, also measured under the ANSI standard: HERTZ 500 1000 2000 3000 4000 RIGHT 10 35 20 20 30 LEFT 25 20 25 25 25 These in-service audiograms support the Veteran’s statement that hearing worsened during service. Even if disabling loss is not demonstrated at separation, a veteran may establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, the Veteran credibly testified that his hearing worsened during service. Based on the evidence of worsening hearing during and after service and the evidence of continuity of symptomatology, service connection for bilateral hearing loss is warranted under 38 C.F.R. § 3.303(b). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Hart v. Mansfield, 21 Vet. App. 505 (2007). When rating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Such inquiry is not to be limited to muscles or nerves. Limitation of motion determinations are, if feasible, to be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca, 8 Vet. App. at 207. By itself, pain throughout a joint’s range of motion does not constitute functional loss, but if there is additional pain, the examiner must address any additional loss of motion due to the DeLuca factors. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). If a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, nonweight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 169–70 (2016); 38 C.F.R. § 4.59. An examiner must provide an opinion regarding additional range of motion loss due to pain. Sharp v. Shulkin, 29 Vet. App. 26 (2017). 3. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the right knee The Board finds that the Veteran has not provided good cause for his failure to attend the examination scheduled for his claim frostbite claim. As the increased rating claim derived from an original claim of entitlement to service connection, the Board will decide this claim based on the evidence of record. 38 C.F.R. § 3.655(b). In October 2010, the RO granted entitlement to service connection for right knee arthritis at an initial rating of 10 percent under Diagnostic Code 5260. The Veteran is appealing that decision. The effective date was later set to June 17, 2009, the date that the claim was filed. See December 2010 rating decision. Under Diagnostic Code 5003, degenerative 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 (DC 5200 etc.). 38 C.F.R. § 4.71a. In the absence of limitation of motion, under Diagnostic Code 5003, a 10 percent rating is appropriate with x-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a. A 20 percent rating is appropriate with x-ray evidence of involvement of two or more major joint groups or two or more minor joint groups, with occasional incapacitating exacerbations. Id. These ratings will not be combined with ratings based on limitation of motion and will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. Id. When degenerative arthritis is established by x-ray findings and limitation of motion is noncompensable, a rating of 10 percent is appropriate for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. For painful motion with any form of arthritis, the Veteran is entitled to at least the minimum compensable rating. 38 C.F.R. § 4.59. The same is true for painful motion in non-arthritis contexts when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Diagnostic Code 5256 governs ankylosis of the knee. 38 C.F.R. § 4.71a. A 30 percent rating is appropriate for ankylosis of a knee at a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. Id. A 40 percent rating is appropriate for ankylosis of a knee in flexion between 10 degrees and 20 degrees. Id. A 50 percent rating is appropriate for ankylosis of a knee between 20 degrees and 45 degrees. Id. A 60 percent rating may be assigned for extremely unfavorable ankylosis of a knee in flexion at an angle of 45 degrees or more. Id. Diagnostic Code 5257 governs other impairments of the knee. 38 C.F.R. § 4.71a. A 10 percent rating is appropriate for slight recurrent subluxation or lateral instability of the knee. Id. A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability of the knee. Id. A 30 percent rating is assigned for severe recurrent subluxation or lateral instability of the knee. Id. Under Diagnostic Code 5258, a 20 percent rating is appropriate for cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion in to the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5260 governs limitation of flexion of the leg. 38 C.F.R. § 4.71a. A 0 percent rating is appropriate with flexion limited to 60 degrees. 38 C.F.R. § 4.71a. A 10 percent rating is appropriate with flexion limited to 45 degrees. Id. A 20 percent rating is appropriate with flexion limited to 30 degrees. Id. A 30 percent rating is appropriate with flexion limited to 15 degrees. Id. Diagnostic Code 5261 governs limitation of extension of the leg. 38 C.F.R. § 4.71a. A 0 percent rating is warranted for leg extension limited to five degrees. Id. A 10 percent rating is warranted for leg extension limited to 10 degrees. Id. A 20 percent rating is warranted for leg extension limited to 15 degrees. Id. A 30 percent rating is warranted for leg extension limited to 20 degrees. Id. A 40 percent rating is warranted for leg extension limited to 30 degrees. Id. A 50 percent rating is warranted for leg extension limited to 45 degrees. Id. Diagnostic Code 5262 governs impairment of the tibia and fibula. 38 C.F.R. § 4.71a. A 10 percent rating is appropriate for malunion of the tibia and fibula with slight knee or ankle disability. Id. A 20 percent rating is appropriate for malunion of the tibia and fibula with moderate knee or ankle disability. Id. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. Id. A 40 percent rating is appropriate for nonunion of the tibia and fibula, with loose motion, requiring a brace. Id. A knee disorder can receive separate ratings based on symptoms related to arthritis, stability, flexion, and extension. Where a Veteran has degenerative joint disease which is evaluated under Diagnostic Code 5003, a separate, compensable evaluation may be assigned under Diagnostic Code 5257 or 5258 if there are concomitant symptoms, such as knee instability or subluxation. See VAOPGCPREC 23-97. When a veteran has a knee disability evaluated under Diagnostic Code 5257, to warrant a separate rating for arthritis based on x-ray findings, the limitation of motion need not be compensable under Diagnostic Code 5260 or Diagnostic Code 5261; rather, such limited motion must at least meet the criteria for a zero-percent rating. See VAOPGCPREC 9-98. Also, a veteran may receive a rating for limitation of flexion only, limitation of extension only, or separate ratings for limitations of both flexion and extension under Diagnostic Code 5260 (leg, limitation of flexion), and Diagnostic Code 5261 (leg, limitation of extension). See VAOPGCPREC 9-2004. Finally, “evaluation of a knee disability under [Diagnostic Codes] 5257 or 5261 or both does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under [Diagnostic Codes] 5258 or 5259, and vice versa.” Lyles v. Shulkin, 29 Vet. App. 107, 109 (2017). The Veteran’s symptoms are consistent with an initial rating of 10 percent. A July 2010 VA examination indicates forward flexion of 140 degrees. There is chronic right knee pain with stiffness and weakness. There is no indicated giving way, instability, or incoordination. The Veteran can stand for as much as one hour and walk from 1/4 of a mile but less than 1 mile. The Veteran displays an antalgic gait and “will use a cane twice to three times a week.” There is no additional limitation after three repetitions. The Veteran’s knee disorder prohibits exercise and sports but only results in at worst “mild” interference with other activities of daily living. In a January 2012 notice of disagreement, the Veteran describes how his knee is growing worse and that he now wears a brace. Further, he is “unable to perform [his] normal task[s] as [he] once could,” which has made it “difficult for [him] to obtain and keep employment.” He also has “difficulty standing and walking for any length of time.” In a December 2012 VA knee examination, the Veteran states that “he has more pain, and difficulty walking, standing, or climbing.” He denies experiencing flare-ups. Flexion is 120 degrees and extension is normal. The Veteran can perform repetitive-use testing, after which flexion is 110 degrees, extension is normal, and functional loss is reflected by less movement than normal and pain on movement. Muscle strength is normal. Joint stability testing is normal. The Veteran regularly uses a brace. The examiner indicates that the Veteran’s right knee disorder does not impact his ability to work. During the August 2017 hearing, the Veteran describes clicking, locking, and constant pain. He daily takes a muscle relaxer, and anti-inflammatory, and a pain pill. Evidence of noncompensable limitation of motion with pain is consistent with a rating of 10 percent under Burton. A rating in excess of 10 percent is not warranted for additional functional loss under DeLuca because there is no additional uncompensated compensable limitation of motion, and his noncompensable limitation of motion is already being compensated. For these reasons, the preponderance of the evidence is against a rating in excess of 10 percent. The evidence does not support additional staged ratings for any time period on appeal. There is no evidence of ankylosis so as to support a rating under Diagnostic Code 5256. There is no evidence of cartilage dislocation with the Veteran’s episodes of locking and pain so as to support a rating under Diagnostic Code 5258. There is also no evidence of removal of semilunar cartilage so as to support a rating under Diagnostic Code 5259. There is additionally no evidence of limitation of extension to support a compensable rating under Diagnostic Code 5261, and no evidence of impairment of the tibia and fibula so as to support a rating under Diagnostic Code 5262. Consequently, a separate or higher rating is not available under a different code. REASONS FOR REMAND 1. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. When entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). In his January 2012 notice of disagreement, the Veteran indicates that his right knee impacts his ability to work. In light of Rice and the Veteran’s testimony, the Board will infer a claim for TDIU. A remand is required so that the RO can adjudicate this claim. Additionally, on remand the RO should obtain all relevant VA treatment records dated from August 2019 to the present before the issues on appeal are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain all VA treatment records from August 2019 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. Send the Veteran a letter which provides proper and complete notice regarding the criteria necessary to substantiate a claim for TDIU. Also send the Veteran a VA Form 21-8940 with instructions for completion, and then complete any additional evidentiary development necessary to adjudicate a claim for TDIU, to specifically include collecting and verifying information concerning the Veteran’s complete educational and occupational history. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Cannon, Associate 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.