Citation Nr: 20004176 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 18-19 544 DATE: January 16, 2020 ORDER Service connection for a left knee disability is granted. Service connection for a right knee disability is granted. A compensable rating for the service-connected bilateral hearing loss is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his left knee disability is at least as likely as not related to his active service. 2. Resolving reasonable doubt in the Veteran’s favor, his right knee disability is at least as likely as not related to his active service. 3. Throughout the period of appeal, the Veteran has had no worse than Level I hearing loss in his right ear, no worse than Level I hearing loss in his left ear, and no exceptional hearing loss pattern in either ear. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. The criteria for service connection for a right knee disability have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 3. The criteria for a compensable evaluation for the service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.85. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1969 to March 1971, and from June 1972 to June 1974. This case was previously before the Board in June 2019. At that time, the Board remanded the Veteran’s claims for further development. Service Connection—Right & Left Knee Disabilities 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. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Additionally, service connection can also be established through application of a statutory presumption for chronic diseases, like arthritis, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). The Veteran contends that his current bilateral knee disabilities are related to his active service. Specifically, as reported to the October 2019 VA examiner, he asserts that he became a rifle instructor in 1972 and noticed worsening bilateral knee pain at that time, for which he sought treatment and was given pain medication. He reports that his bilateral knee pain progressively worsened since then. The October 2019 VA examination report shows that he has current diagnoses of bilateral knee arthritis. As such, the current disability prong of his claims for service connection for bilateral knee conditions have been met. The question in this case is whether a causal relationship or nexus exists between the Veteran’s current bilateral knee arthritis and his active service, or whether it was onset therein. As previously discussed, the Veteran reported that he began to experience symptoms of bilateral knee pain in service. He reported this to the October 2019 VA examiner and to VA medical treatment providers who treated him for knee issues. He is competent to report what he has experienced through his senses, and the Board has no reason to question the credibility of his reports regarding the timeline of his symptomatology onset. Further, the Board recognizes that the October 2019 VA examiner opined against service connection for the Veteran’s bilateral knee arthritis, based upon his review of the Veteran’s medical records not showing a chronic knee condition in service. However, because the examiner did not specifically consider the Veteran’s lay statements regarding the onset and history of his symptoms, which the Board finds to be credible, the Board concludes that the medical opinion is not adequate. Affording the benefit of the doubt to the Veteran, the Board finds that he has been experiencing symptoms of bilateral knee arthritis since active service. Thus, service connection is warranted for his bilateral knee arthritis, as they are current disabilities which were onset during his active service. Increased (Compensable) Rating—Bilateral Hearing Loss Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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 considers entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of a matter. VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability ratings for hearing impairment are governed by 38 C.F.R. § 4.85. Generally, and under the circumstances presented by this case, hearing impairment is rated using two different types of hearing tests. Id. First, a veteran’s pure tone audiometric thresholds in each ear are measured in decibels across 4 frequencies (1000, 2000, 3000, and 4000 Hertz) and the average of those scores (rounded to the nearest whole number) is calculated. Id. Second, a veteran’s speech discrimination ability (rendered as a percentage) is determined using the Maryland CNC test. Id. Once the average pure tone thresholds and speech discrimination scores are determined for each ear, the values of each ear individually are combined using Table VI to assign a Roman numeral I-XI. Id. Once each ear is assigned a Roman numeral, the Roman numerals assigned are combined using Table VII to determine a veteran’s disability rating. Id. Where impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear is assigned a Roman Numeral designation of I. Id. The only time that the Veteran received an examination that complied with these criteria during, or proximate to, the appeal period was at an August 2019 VA examination. At that time, the pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 15 20 35 75 36.25 LEFT 20 25 40 70 38.75 The average pure tone threshold across 1000-4000 Hz in the right ear was 36.25 decibels and in the left ear was 38.75 decibels. Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 95 percent in the left ear. At this examination, the Veteran was noted as having no significant difficulties with his hearing, and his hearing loss was determined to not impact ordinary conditions of daily life, including his ability to work. Using Table VI, the results of the August 2019 VA examination provide a Level I hearing loss designation in the right ear and a Level I designation in the left ear. 38 C.F.R. § 4.85. Using Table VII, VA assigns a non-compensable (0 percent) rating where both ears are a Level I. Id. The Board notes that the June 2019 Board remand also attempted to have the Regional Office obtain the audiogram results from the Veteran’s July 2017 VA audiology treatment visit. Attempts to obtain these results were unsuccessful as the records are unavailable. However, the Veteran’s July 2017 VA audiology treatment note indicates that the results show normal hearing in each ear up to 3000 Hz, sloping to a severe rising to moderately-severe sensorineural hearing loss. This reflects what was found on VA examination in October 2019. As such, there is no indication that such audiogram results, were they available, would have provided information which would have substantiated a compensable rating for hearing loss in either ear. The Board has discussed the proper legal criteria for rating the Veteran’s hearing loss herein and applied it in the light most favorable to the Veteran. Unfortunately, there are no legal grounds to afford a compensable schedular rating for the Veteran’s hearing loss. Further, he has not reported, and the evidence does not otherwise show, any additional symptoms or effects on his daily life beyond hearing loss related to this disability. Thus, it is appropriate to rate his hearing loss disability through the mechanical application of the rating formula. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In reaching this conclusion, the Board acknowledges that VA regulations provide for alternative means of rating hearing loss where pure tone thresholds are 55 decibels or greater at each of the values from 1000 to 4000 Hz or where the pure tone threshold is 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz. 38 C.F.R. § 4.86. However, the Veteran’s hearing loss does not meet either of these exceptional patterns of hearing loss. Based on the evidence described above, the Board finds that the evidence of record preponderates against the Veteran’s claim for a compensable rating for his service-connected bilateral hearing loss at any time during the appeal period. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, 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.