Citation Nr: 20006992 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 15-34 089 DATE: January 28, 2020 ORDER Entitlement to an increased rating in excess of 50 percent for migraine headaches is denied. Entitlement to a compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to an increased rating in excess of 10 percent for a left knee degenerative joint disease is remanded. Entitlement to an increased rating in excess of 10 percent for right knee degenerative joint disease is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s migraine headaches have been assigned the maximum schedular evaluation for the entire period on appeal. 2. Veteran’s bilateral hearing loss has been manifested by hearing acuity of no worse than Level IV in the right ear and no worse than Level I in the left ear. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100. 2. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to June 1970, August 1980 to August 1984, and January 1985 to January 1996. The Veteran requested a Board hearing in his August 2015 VA Form 9 but withdrew the request in a June 2019 letter from his representative. Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Migraine Headaches The Veteran contends he is entitled to an evaluation in excess of 50 percent for migraine headaches. The Veteran’s migraine headaches are rated under Diagnostic Code 8100, 38 C.F.R. § 4.87, for which the maximum schedular evaluation is 50 percent. As the Veteran’s service-connected migraine headaches have been assigned the maximum schedular rating available for the entire rating period, the Board finds there is no legal basis upon which to award a higher schedular evaluation for his service-connected migraine headaches. As such, entitlement to a schedular rating in excess of 50 percent for migraine headaches is not warranted. See Sabonis v. Brown, 6 Vet. App. 426 (1994). 2. Bilateral Hearing Loss The Veteran contends that he is entitled to a higher rating for his service-connected bilateral hearing loss. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). During a September 2013 VA examination the Veteran reported having a hard time hearing people talk when background noise was present. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 45 60 70 70 61 80 LEFT 30 35 55 65 46 100 Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran’s bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including his reports of difficulty hearing. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).   REASONS FOR REMAND 1. Bilateral Hip Disability The Veteran was afforded a VA examination in September 2013. The examiner opined that the Veteran's bilateral hip disabilities were less likely than not secondary to his service-connected bilateral knee disabilities but did not provide an opinion as to whether or not the Veteran's claimed hip conditions had been aggravated beyond their natural progression by his service-connected knee disabilities. The Veteran has alternatively stated that his hip conditions were directly rated to his service. See, e.g., May 2011 Tricare records. The September 2013 VA examiner opined that the Veteran's claimed hip conditions were not directly related to his active duty service but provided no rationale to support the opinion; it is therefore inadequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, a remand is necessary for an additional opinion. 2. Bilateral Knee Degenerative Joint Disease While the record contains a contemporaneous VA examination regarding the Veteran’s bilateral knee disabilities, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations does not contain passive range of motion measurements or pain on weight-bearing testing. Futher, January 2014 private treatment records indicate that the Veteran’s condition has worsened since the September 2013 VA examination. 3. TDIU Finally, because a decision on the remanded issues could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined, and a remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician regarding whether the Veteran’s left and/or right hip disability is at least as likely as not related to his active duty service in the airborne and special forces, are proximately due to a service-connected disability, or have been aggravated beyond their natural progression by a service-connected disability. If, and only if, determined necessary by the reviewing clinician, the Veteran should be scheduled for another VA examination. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement without speculation the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Then readjudicate the claims. If any benefit sought is not granted, the Veteran and his representative should be furnished an SSOC and given the requisite opportunity to respond before the case is returned to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mine, 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.