Citation Nr: A20009331 Decision Date: 05/27/20 Archive Date: 05/27/20 DOCKET NO. 191106-41942 DATE: May 27, 2020 ORDER The appeal for service connection for right ear hearing loss is denied. A 10 percent disability rating, but no higher, for subluxation of the left knee, from August 19, 2019, is granted subject to the laws and regulations governing payment of monetary benefits. The appeal for a compensable rating for limitation of extension of the left knee, is denied. REMANDED The appeal for service connection for left ear hearing loss is remanded. The appeal for service connection for tinnitus is remanded. FINDINGS OF FACT 1. At no time during the pendency of the appeal does the Veteran have a current right ear hearing loss disability for VA purposes. 2. For the entire period, the Veteran’s left knee disability was manifested by subjective complaints of pain, instability, giving way, and objective findings of tenderness to palpation, post-meniscotomy, with painful flexion limited to 110 degrees at worst, full extension, and no objective evidence of ankylosis, or malunion of the tibia or fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1031, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for a 10 percent rating, but no higher, from August 19, 2019, for subluxation of the left knee are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 3. The criteria for compensable rating for left knee limitation of extension are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a , Diagnostic Codes 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 2000 to October 2000 and from January 2002 to January 2004. The Veteran timely appealed the October 2019 rating decision and selected direct review of the appeal. See November 2019 VA Form 10182. The October 2019 rating decision denied higher ratings for left knee limitation of flexion, extension, and instability. In the November 2019 VA Form 10182, the Veteran specified that he disagreed with the denial of increased ratings for the left knee limitation of extension and instability. The Veteran did not indicate disagreement with the denial of a higher rating for left knee limitation of flexion, thus, the Board does not have jurisdiction to address the issue herein. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including hearing loss and tinnitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104 (a) (2012); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for right ear hearing loss. As an initial matter, the AOJ made a favorable finding that the Veteran was exposed to significant noise exposure in service. However, the Board finds that the claim fails for lack of a current right ear hearing loss disorder as defined by VA regulation. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. § 1110 (2012); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). “In the absence of proof of a present disability there can be no valid claim.” See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Additionally, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. VA may only find hearing loss to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385 (2019). Also, the threshold for normal hearing is between 0 and 20 decibels, and higher threshold shows some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In this case, the evidence does not demonstrate right ear hearing loss disability as defined by VA regulation, at any time pertinent to the appeal. In this regard, pure tone thresholds were documented as follows at the September 2019 VA examination. 500Hz 1000Hz 2000Hz 3000Hz 4000Hz Right ear 20 15 15 25 35 Speech audiometry revealed speech recognition ability of 98 percent in the right ear. The remainder of the evidence does not indicate right ear hearing loss disability as defined by VA regulation. Thus, the Board finds that the evidence does not meet the criteria defined by 38 C.F.R. § 3.385 for a hearing loss at any time pertinent to the claim. As such, service connection is not warranted for hearing loss in the right ear on any basis. The Board acknowledges the Veteran’s reports that he has difficulty hearing in the right ear. Although the Veteran is competent to report his observations of difficulty hearing, his statements as to a diagnosis of right ear hearing loss has no probative value as he has not been shown to have the requisite medical expertise and training to diagnose a hearing loss disability. See 38 C.F.R. § 3.159 (a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Moreover, VA has a strict definition for what it considers a hearing loss disability. 38 C.F.R. § 3.385. The VA requirements for right ear hearing loss disability are simply not met in this case. As such, the Board finds that the preponderance of the evidence is against the claim for service connection for right ear hearing loss. There is no doubt to be resolved, and service connection is not warranted. See 38 C.F.R. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Ratings 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 rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 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. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a “staged rating” (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). 2. Left knee disability- limitation of extension and subluxation The Veteran is in receipt of disability ratings for post-operative meniscectomy with instability (noncompensable) and limitation of extension (noncompensable) as well as limitation of flexion (10 percent). The October 2019 rating decision at issue continued the noncompensable ratings for instability and limitation of extension, as well as the 10 percent rating for limitation of flexion. As noted above, the Veteran specifically appealed the noncompensable ratings for instability and limitation of extension but did not express a desire to appeal the rating for limitation of flexion. See November 2019 VA Form 10182. Therefore, the Board will not address the question of entitlement to a higher rating for limitation of flexion. Disabilities of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). A United States Court of Appeals for Veterans Claims (Court) decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 provides for a zero percent rating where flexion of the leg is only limited to 60 degrees. For a 10 percent rating, flexion must be limited to 45 degrees. For a 20 percent rating is warranted where flexion is limited to 30 degrees. A 30 percent rating may be assigned where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a zero percent rating where extension of the leg is limited to five degrees. A 10 percent rating requires extension limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent rating, extension must be limited to 30 degrees. And finally, where extension is limited to 45 degrees a 50 percent rating may be assigned. 38 C.F.R. § 4.71a , Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent evaluation for severe recurrent subluxation or lateral instability. VA’s General Counsel has stated that when a knee disorder is rated under 38 C.F.R. § 4.71a , Diagnostic Code 5257 and an appellant also has limitation of knee motion which at least meets the criteria for a noncompensable evaluation under 38 C.F.R. § 4.71a , Diagnostic Code 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability. However, General Counsel stated that if an appellant does not meet the criteria for a noncompensable rating under either Diagnostic Code 5260 or Diagnostic Code 5261, there is no additional disability for which a separate rating for arthritis may be assigned. VAOPGCPREC 23-97 (July 1, 1997), published at 62 Fed. Reg. 63,604 (1997). If a rating is assigned under the provisions for other knee impairment (38 C.F.R. § 4.71a , Code 5257) a separate 10 percent rating may be assigned where some limitation of motion, albeit noncompensable, has been demonstrated. See VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). VA’s General Counsel has also stated that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 2004). The rating schedule also provides that dislocation of semilunar cartilage, with frequent episodes of “locking,” pain, and effusion into the joint, warrants a 20 percent evaluation. 38 C.F.R. § 4.71a , Diagnostic Code 5258. Diagnostic Code 5259 provides for the assignment of a maximum 10 percent rating based on symptomatic removal of the semilunar cartilage. Genu recurvatum is rated under Diagnostic Code 5263, with a maximum rating of 10 percent. Under the anti-pyramiding provision of 38 C.F.R. § 4.14, the evaluation of the “same disability” or, more appropriately in this case, the “same manifestation” under various diagnoses is to be avoided. For purposes of determining whether the Veteran is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of or overlapping with the symptomatology of the other two conditions. The Veteran was provided with a VA examination in October 2019. At that time, he reported persisting left knee pain with steps, prolonged walking, and he reported that he was unable to squat down or run. The Veteran described flare-ups of left knee pain with squatting, prolonged walking or going up and down steps. He reported that flare-ups occurred weekly, lasted up to one day, and were of moderate severity. On objective testing in October 2019, the Veteran had flexion to 115 degrees with pain and full extension. Following repetitive testing, the Veteran had flexion to 110 degrees and maintained full extension. Muscle strength testing was reduced, measuring 4 out of 5 for flexion and extension. The examiner noted that the Veteran did not have any muscle atrophy or ankylosis. The October 2019 VA examiner also noted that the Veteran had tenderness to palpation of the left knee. The examiner noted that the tenderness was of moderate severity and was due to limitation of flexion and extension as well as subluxation or instability. The examiner found that there was a history of recurrent subluxation that was slight in severity. The examiner found that there was no history of lateral instability or recurrent effusion. There was no objective evidence of crepitus. The October 2019 VA examiner noted the Veteran’s history of meniscectomy and indicated that the residuals included the Veteran’s aforementioned limitations with flexion and extension. The examiner also noted the meniscectomy scar measured .5 by .5 centimeters. The Board observes that the service connection is already in effect for the scar. Regarding the functional effect of the left knee disability on the Veteran’s employment, the October 2019 VA examiner noted that the Veteran was not working as a tool and die maker, that had 0-1 weeks of work time lost in the past 12 months, and that the Veteran could not squat or run, and had limited steps and prolonged walking due to the disability. The remaining evidence does not indicate worse symptoms than those noted during the October 2019 VA examination. Resolving doubt in favor of the Veteran, the Board finds that a 10 percent disability rating, but no higher, is warranted for slight subluxation of the left knee the date of receipt of the claim for increase. Further, the Board finds that a rating greater than 10 percent for subluxation or instability is not warranted as objective instability testing was negative. The Board acknowledges the Veteran’s statement in the VA Form 10182 that he told the October 2019 VA examiner that his knee pops out and that there is increased instability when going up and down stairs. The Board finds the statement is duplicative of statements recorded by the October 2019 VA examiner and indeed, the statements made to the examiner resulted in the examiner noting that the Veteran had “slight” subluxation in the left knee. However, the Board places a higher probative value on the VA examiner’s objective testing which did not reveal any instability or subluxation. Therefore, the Board finds that a rating greater than 10 percent is not warranted for instability or subluxation at any point pertinent to the appeal. In accordance with 38 C.F.R. § 3.400(o), the Board has considered whether the Veteran’s instability and/or subluxation symptoms worsened during the one-year period prior to the claim for increase, but finds that they did not. There are no treatment records or other evidence indicating an increase in instability or subluxation symptoms prior to August 19, 2019. As such, the Board finds that the appropriate date is August 19, 2019, the date of receipt of the claim for increase. The Board has considered whether a compensable rating is warranted for the Veteran’s limitation of extension but finds that it is not. In this regard, the Veteran had full extension and pain was not objectively noted on extension. In reaching this conclusion, the Board has considered the DeLuca, Correia, and Sharp provisions. The Board acknowledges Veteran’s statements regarding symptoms during flare-ups and after prolonged use, including left knee pain with steps, prolonged walking, inability to squat down or run, and weekly flare-ups that lasted up to a day and were moderate in severity. However, at no point did the Veteran report or otherwise describe his extension as being limited to 10 degrees during a flare-up or following prolonged use, even with any subjectively noted pain. Further, the October 2019 VA examiner noted that the Veteran maintained full extension following repetitive testing and there was no objective evidence of painful extension. The Board has also considered whether the Veteran is entitled to a separate rating under DC 5259 for symptomatic removal of the semilunar cartilage. The Board acknowledges that the Veteran had a meniscectomy in 2003; however, the October 2019 VA examiner indicated that the only residuals of the meniscectomy were the limitation of flexion and extension for which the Veteran is already service-connected. Additionally, ankylosis, tibia or fibula impairment, and genu recurvatum are not shown by the evidence of record. As such, the Veteran is not entitled to a disability rating under Diagnostic Codes 5256, 5262, or 5263. 38 C.F.R. § 4.71a. For these reasons, the Board resolves doubt and assigns a separate 10 percent disability rating, but no higher, for left knee subluxation since August 19, 2019. Additionally, the preponderance of the evidence is against a compensable rating for limitation of extension. As discussed above, the Veteran did not appeal the assigned rating for limitation of flexion. REASONS FOR REMAND 1. Entitlement to service connection for left ear hearing loss. The AOJ made favorable findings that the Veteran has a current left ear hearing loss and noise exposure during service. For the reasons explained below, the Board finds that a duty to assist error occurred and a VA addendum opinion is required to address the error. The Veteran was provided with a VA audiological examination in September 2019. The VA examiner determined that the Veteran had left ear hearing loss for VA purposes but that it was less likely than not that the disability was related to noise exposure in service. The examiner explained that it was less likely because there was not a significant shift in hearing threshold between service entrance and service separation. Although the examiner explained why a “significant shift” was necessary, the examiner did not explain what amount of change in hearing acuity was required in order to meet the requirement of a “significant shift” or how the examiner came to the conclusion that no such shift occurred in this case. Notably, the Veteran’s left ear hearing acuity was not the same at service separation as it was at service entry. For example, at service entrance in January 2000 the Veteran’s left ear hearing loss was as follows: 500Hz 1000Hz 2000Hz 3000Hz 4000Hz Left ear 10 0 0 5 0 The July 2003 report of medical examination for separation included the following hearing acuity findings: 500Hz 1000Hz 2000Hz 3000Hz 4000Hz Left ear 20 10 15 25 5 As the Veteran’s left ear hearing acuity appears to have worsened during service, the examiner should have explained the amount of a shift required in order to substantiate a “significant shift” and explained how the examiner reached the conclusion that such a shift did not occur in this case. For these reasons, a VA addendum opinion is required. 2. Entitlement to service connection for tinnitus. As noted above, the AOJ has already conceded noise exposure in service. The AOJ also found that the Veteran had a current diagnosis of tinnitus. For the reasons explained below, the Board finds that a duty to assist error occurred and a VA addendum opinion is required to address the error. The September 2019 VA audiological examiner found the Veteran’s tinnitus was at least as likely as not related to the Veteran’s left ear hearing loss, and that the left ear hearing loss was less likely than not related to service. However, as explained above, the examiner did not adequately explain why the left ear hearing loss was not related to service. Moreover, the examiner did not indicate any post-service noise exposure that would have led to the Veteran’s hearing loss or tinnitus. The matters are REMANDED for the following action: Seek an addendum opinion from a VA audiological examiner. The electronic claims file and a copy of this Remand must be made available to the examiner. The need for an additional examination (or telehealth interview) of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The clinician is asked to answer the following questions. (a.) Is it at least as likely as not (a 50 percent probability or higher) that the Veteran’s left ear hearing loss had its onset in, or is otherwise related to service, to specifically include in-service conceded noise exposure?   (b.) The examiner must consider the Veteran’s service treatment records, to include the audiological evaluations conducted in January 2000 on entry as compared with the July 2003 audiological evaluation, and discuss the significance, if any, of the change in the Veteran’s hearing threshold. If the examiner maintains that there was no “significant shift” in the Veteran’s left ear hearing acuity, the examiner is asked to explain the amount of a shift necessary to constitute a “significant shift” and explain how the examiner came to the conclusion that no such shift occurred in this case. (Continued on the next page)   (c.) Is it at least as likely as not (a 50 percent probability or higher) that the Veteran’s tinnitus had its onset in, or is otherwise related to service, to specifically include in-service conceded noise exposure? (d.) If the examiner determines that the left ear hearing loss is at least as likely as not related to service, and that the Veteran’s tinnitus is not directly related to service, is it at least as likely as not (a 50 percent probability or higher) that the Veteran’s tinnitus was caused or aggravated by the left ear hearing loss? T. Berry Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Donna D. Ebaugh, 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.