Citation Nr: 20058043 Decision Date: 09/02/20 Archive Date: 09/02/20 DOCKET NO. 16-27 461A DATE: September 2, 2020 ORDER Service connection for bilateral hearing loss is granted. Service connection for left knee chondromalacia patella, residuals of patellar dislocation, is denied. An initial 10 percent rating for left knee residuals of torn anterior cruciate ligament (ACL) is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his bilateral hearing loss was incurred as a result of hazardous noise exposure during active service. 2. The Veteran’s left knee chondromalacia patella, as residuals of patellar dislocation, was not incurred in or aggravated by a disease or injury in active service, and was not aggravated by a service-connected disability. 3. Throughout the appeal period, the Veteran’s left knee residuals of ACL repair has manifested by pain, painful and limited motion at times, but with extension to at least 10 degrees and flexion to at least 45 degrees; and with no ankylosis, recurrent lateral instability or subluxation due to service-connected disability, meniscal impairment or other knee or leg impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 101, 106, 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.385. 2. The criteria for service connection for left knee chondromalacia patella, residuals of patellar dislocation, are not met. 38 U.S.C. §§ 101, 106, 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.310. 3. The criteria for an initial 10 percent rating for left knee residuals of torn ACL are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Air Force National Guard and Reserve from April 1980 to May 2004. He had no periods of active duty. However, because service connection was granted for his left knee residuals of an ACL injury based on an injury during a period of training in June 2001, that period is considered active service and Veteran status has been established. This matter is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions in March 2014 and September 2016. Although the Veteran also initially appealed from the denial of service connection for tinnitus in March 2014, that benefit was granted in full in a October 2017 and is no longer on appeal. The Veteran testified at an October 2019 Board hearing before a Veterans Law Judge. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three elements for service connection require: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Secondary service connection may be awarded if a nonservice-connected disability is caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. As relevant to this case, for Reserve and National Guard service, active service includes “active duty”; “any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty”; “any period of inactive duty training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty.” 38 U.S.C. § 101(24). The term “active duty for training” (ACDUTRA or ADT) means, in part, “full-time duty in the Armed Forces performed by Reserves” and “authorized travel to and from such duty.” 38 U.S.C. § 101(22)(A). The term “inactive duty training” (INACDUTRA or IDT) means, in part, “duty (other than full-time duty) prescribed for Reserves by the Secretary” and “special additional duties authorized for Reserves by an authority designated by the Secretary... in connection with prescribed training or maintenance activities of the units to which they are assigned.” 38 U.S.C. § 101(23)(A). 1. Service connection for bilateral hearing loss The Veteran contends that his hearing loss is due to hazardous noise exposure during National Guard and Reserve service. See, e.g., October 2019 hearing. A current disability is established. Private audiograms in December 2012 and February 2015 and a March 2016 VA examination reflect a diagnosis of sensorineural hearing loss with valid test results that met the criteria for a VA disability, with pure tones of 40 decibels or above in at least one level from 500 to 4000 Hertz bilaterally. 38 C.F.R. § 3.385. Although the March 2017 VA examination stated that pure tone and speech discrimination tests were not valid or indicative of organic hearing loss, no reason was provided for this determination. Because a disability was shown during the appeal period, this element is met. An in-service injury is also established. Hazardous noise exposure from jet engine noise throughout the Veteran’s service periods for the National Guard and Reserve also has been shown was the basis of injury for service connection for tinnitus. Finally, resolving reasonable doubt in the Veteran’s favor, a nexus to active service is shown. Although there are negative VA opinions, those opinions are inadequate. In a February 2015 record, the Veteran’s private provider, Dr. F, stated that the Veteran had a slight increase in hearing loss since his last audiogram in 2012 at 3000 and 4000 Hertz, and he had significant noise exposure from 20 years in service and no other history of noise exposure. The provider stated that the Veteran had sensorineural hearing loss with associated tinnitus, and his chronic noise exposure “certainly could be a causative factor” in his hearing loss and tinnitus. Although VA examiners stated in March 2016 and April 2016 that this private provider had not met competency requirements to conduct a VA examination or provide an opinion in this regard, there is no indication that the provider was not competent to provide a medical opinion. Furthermore, although the examiners noted that the provider did not have access to the Veteran’s VA and service treatment records, if the private opinion is based on facts consistent with those records, then failure to review the actual records does not render the opinion less probative. The provider’s opinion considered a noise exposure history consistent with the other evidence of record, and hearing loss test results after service. In addition to the notation by Dr. F in 2015, a December 2012 private record also stated that the Veteran’s tinnitus secondary to his hearing loss. The Veteran indicated in the 2012 private record and in the March 2016 VA examination that he first noticed his tinnitus several years after his retirement from the Reserve in May 2004, in approximately 2011 or 2009, respectively. Although the 2016 examiner gave a negative opinion, a March 2017 examiner noted the reported date of onset in 2009 and opined that the Veteran’s tinnitus was at least as likely as not related to noise exposure in active service. The examiner explained that there was a positive threshold shift at the 3000 Hertz pure tone level for the right ear between the Veteran’s March 1997 and May 2004 service department audiograms, and that this could be evidence of a nexus between military noise exposure and tinnitus onset. Similar to tinnitus, the Veteran reported for private treatment in December 2012 that he believed he may have hearing loss at that time. He did not report noticeable hearing loss in service, and a disability for VA purposes was not shown on his May 2004 Reserve separation examination. However, a hearing loss disability need not be shown during service to warrant service connection if the evidence otherwise shows that the current disability is related to active service. See Hensley v. Brown, 5 Vet. App. 155 (1993); Ledford v. Derwinksi, 3 Vet. App. 87 (1992). The same March 2017 VA examination that stated there was a threshold shift for the right ear for the tinnitus opinion also stated that there was not a permanent threshold shift for the left or right ears when discussing the Veteran’s hearing loss. This is internally inconsistent and renders the opinion for hearing loss inadequate. A March 2016 VA examination stated that there was a permanent threshold shift in the Veteran’s right ear, but not the left ear, but gave a negative hearing loss opinion. The March 2016, April 2016, and March 2017 negative VA opinions relied on an Institute of Medicine (IOM) study that concluded, in part, that there is no scientific basis for delayed onset noise-induced hearing loss. Based on this study, the examiners stated that, because there was no hearing loss disability shown in the Veteran’s May 2004 separation examination, he did not have delayed onset hearing loss from his in-service noise exposure. However, the Court has found that this IOM study contained qualifying or contradictory findings and may not be adequate to support a negative opinion. See McCray v. Wilkie, 31 Vet. App. 243 (2019). In summary, the Veteran has been awarded service connection for tinnitus despite its onset after service, his tinnitus has been medically noted as associated with or secondary to his hearing loss, a positive threshold shift for pure tones during service was noted, the private provider stated that the Veteran’s in-service noise exposure “could certainly” contribute to his hearing loss and tinnitus, and the VA opinions are inadequate. Therefore, the Board finds that the evidence is in relative equipoise as to the etiology of his hearing loss. Reasonable doubt is resolved in the Veteran’s favor, and a nexus to active service is established. The appeal is granted. 2. Service connection for left knee chondromalacia patella, residuals of patellae dislocation The Veteran contends that his left knee chondromalacia patella is due to a patellar dislocation during active service for Reserve training. See, e.g., October 2019 hearing. Under “travel status” training duty, an individual who is disabled or dies from an injury or disease incurred while proceeding directly to or returning directly from an authorized period of ADT or IDT is also considered to be on ADT or IDT at the time the injury or disease occurred. 38 U.S.C. § 106(d)(1); 38 C.F.R. § 3.6(e). The Veteran acknowledges that he was not on Reserve duty and was not travelling to or from such duty when his patellar dislocation incurred on Saturday, September 7, 1996. The injury occurred in the front yard of his home after he returned home from a Reserve drill day. However, the Veteran believes that his injury should be considered as incurred during active service because he was “on call” for duty for the entire drill weekend and would have returned to duty the following day (Sunday) if not for the left knee injury. The Veteran asserts that periods of “off duty” time during training for Reserve members should not be treated differently from periods “off duty” time for active duty service members. See, e.g., January 2017 notice of disagreement, April 2017 VA Form 9, October 2019 hearing. The Board is bound by applicable statutes, regulations, and precedential decisions from VA’s Office of General Counsel and courts of appeal. Although the Veteran disagrees with the policy, the statutes and regulations are clear that injuries or diseases during periods of off-duty time, other than when the individual is traveling directly to or from a period of ADT or IDT, to include a Reserve or National Guard drill weekend, are not considered active service and are not eligible for service connection. The facts are undisputed in this case and the law is dispositive. There is no argument or indication that the Veteran’s disability from the left knee patellar dislocation in 1996 was aggravated beyond its natural progression during a period of ADT or IDT, to include by the 2001 ACL tear that is service-connected. See 38 C.F.R. §§ 3.306, 3.310. Instead, the lay and medical evidence reflects that the Veteran’s symptoms resolved after the patellar dislocation, and he had a separate injury of a left knee ACL tear in 2001 with symptoms since that time. See, e.g., July 2001 MRI (showing ACL tear and chondromalacia patella), March 2014 and June 2016 VA examinations, September 2016 addendum opinion (stating that the Veteran’s preexisting chondromalacia patella from the 1996 patellar dislocation was not aggravated by the ACL tear in 2001 because they are two distinct injuries). In March 2014, June 2016, and September 2016 VA examiners stated that the Veteran had two left knee diagnoses, and his symptoms other than patellar dislocation or subluxation could not be distinguished from the ACL condition. The September 2016 addendum opinion explained that there is a great deal of overlap between the symptoms of the two conditions, making it impossible to separate them. Both conditions may result in crepitus, swelling, and instability. Therefore, all of the Veteran’s left knee symptoms, other than recurrent patellar subluxation or dislocation itself, should be considered service-connected for the purposes of determining the proper rating for his left knee disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). However, they remain two separate left knee diagnoses. Accordingly, the preponderance of the evidence is against service connection for left knee chondromalacia, as residuals of a left knee patellar dislocation. There is no reasonable doubt to be resolved in the Veteran’s favor and the appeal is denied. 3. An initial compensable rating for left knee residuals of a torn ACL The Veteran contends that a 10 percent or higher rating is warranted for his service-connected left knee disability based on pain and other symptoms after strenuous activities. See, e.g., October 2019 hearing. VA’s schedular percentage ratings are based on average impairment of earning capacity as a result of service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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 reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The most relevant information in determining the appropriate initial disability rating pertains to the severity of the disability since the effective date of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings may be awarded if there are decreases or increases in symptomatology the meet the criteria for a different rating for a distinct period during the appeal period. Id. A separate rating may be assigned for non-overlapping conditions and symptoms, if the compensable criteria under the applicable code(s) are met. Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009); 38 C.F.R. § 4.14. A separate or higher rating may be awarded for musculoskeletal conditions based on range of motion if there is additional functional loss after repetitive use or flare-ups due to pain or other factors. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016); 38 C.F.R. §§ 4.10, 4.40, 4.45. This decision focuses on the evidence pertinent to the rating criteria and disability severity during the relevant period on appeal; however, the Board has considered the entire record and history to have a full picture of the disability. See 38 C.F.R. §§ 4.1, 4.2, 4.41; see also Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). Knee disabilities in particular are unique in the rating code, as they are one of a few orthopedic disabilities in which a Veteran may receive multiple ratings based on separate symptoms in the same joint. Although the law generally prevents considering the same symptoms under various diagnoses to support separate ratings, some of the relevant diagnostic codes (DCs) for the knee have been interpreted to apply to different functions of the knee, therefore warranting separate consideration. Specifically, the evidence may warrant separate ratings for limitation of flexion of the knee, limitation of extension of the knee, lateral instability or recurrent subluxation of the knee, and symptoms due to meniscal impairment if they are not overlapping. All possibilities will be considered. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Under DC 5260, limitation of flexion of the leg will be assigned a 0 percent (noncompensable) rating where flexion is limited to 60 degrees. A 10 percent or higher rating requires flexion limited to at least 45 degrees. 38 C.F.R. § 4.71a. Under DC 5261, limitation of extension of the leg will be assigned a 0 percent rating where extension is limited to 5 degrees. A 10 percent or higher rating requires extension limited to at least 10 degrees. Id. In this case, the Veteran has described similar left knee symptoms throughout the appeal period. Private treatment records in December 2012 and February 2013 noted pain and decreased mobility after strenuous activity, pain with running and jumping, and that the left knee bothered the Veteran after walking more than 30-60 minutes or repetitive bending of the knee under his weight. During March 2014 and June 2016 VA examinations, the Veteran reported flare-ups of increased pain or swelling after strenuous activities or extended weightbearing activities, including walking fast or uphill and twisting motions. He stated that sometimes he wears a knee brace if he will be performing strenuous activities involving walking. In statements for his claim, the Veteran described pain and inflammation with prolonged weightbearing or strenuous activities, such as running, water sports, winter sports, extended hunting or kneeling, and doing work like construction outside where he has to kneel or lift things. The Veteran denied problems with knee extension. He stated that occasionally he has a feeling of reduced stability or that his knee may give out with certain movements. He denied missing any work due to his knee. During his 2019 Board hearing, the Veteran stated that his symptoms were about the same since 2016. See, e.g., statements in March 2014, March 2015 (notice of disagreement), March 2016, June 2016, and October 2019 hearing. A December 2012 private treatment record noted lateral knee pain with full flexion with weightbearing, but no symptoms with full passive flexion or extension. A February 2013 private treatment record noted that Lachman’s test and varus and valgus stress tests were negative or stable; those are tests for knee instability. During the March 2014 VA examination, range of motion was from 0 degrees of extension to 130 degrees of flexion, with no pain on testing. Flexion was decreased to 120 degrees after repetitive testing. The knee was tender to palpation, but strength was normal (5 out of 5), and joint stability tests were normal. The examiner noted a history of moderate recurrent patellar subluxation or dislocation. During the June 2016 VA examination, range of motion was from 0 degrees of extension to 120 degrees of flexion, with no pain on testing or with weightbearing, and no change after repetitive testing. Strength was normal (5 out of 5). This examiner did not conduct joint stability tests, but again noted a history of moderate recurrent patellar dislocation (or subluxation). There was no work impact. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court stated that flare-ups must be considered in providing an estimate of additional functional loss based on range of motion. The VA examiners have not given an estimate of additional loss during flare-ups or after repeated use over time for the Veteran’s left knee, or they indicated that no opinion could be provided without mere speculation because they would need to observe the Veteran during periods of flare-ups or after repeated use over time. However, there is no indication that any impact of flare-ups or repeated use over time results in any additional loss of motion over that outlined above. Furthermore, the guidance on how to evaluate flare-ups has not been particularly clear. As a consequence, it is determined that the holding in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), will be expanded and flare-ups must be quantifiable and must result in limitation of motion of function beyond that contemplated by the already provided evaluation. Additionally, because there is a regulation addressing the stabilization of ratings, flare-ups must be of such length as to establish that the overall impairment is more severe than currently evaluated. The statements made in this case do not show that any flare-ups or repeated use over time have additionally limited function in a quantifiable way, nor do they show that they are of such length or duration that a higher or staged rating would not violate the rule regarding stabilization of ratings. In particular, the VA examiners attempted to elicit information from the Veteran in this regard, and he stated only that he has increased pain or other symptoms after certain activities and avoids the activities. In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified by the ratings in particular diagnostic codes are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. Here, the Veteran’s reports of exacerbation during flare-ups or after repeated use for his knee are not quantifiable and not of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell, 38 C.F.R. § 4.1, and the rule regarding stabilization of ratings. Furthermore, the lack of an opinion without speculation to estimate any additional range of motion loss during flare-ups or after repeated use due to not observing the disabilities during increased pain, as noted in Sharp, is not prejudicial. Therefore, no further VA examination or medical opinion is necessary. Moreover, pain alone does not warrant a separate or higher rating; rather, the pain must result in additional functional loss. Mitchell, 25 Vet. App. 32. Painful motion alone does not constitute limited motion for the purposes of rating under the diagnostic codes pertaining to limitation of motion for a particular disability, as opposed to assigning a minimum rating. Id. Because the Veteran retained significant flexion and extension despite increased pain or other contributing factors at times, it did not result in a greater degree of functional loss or limitation. As summarized above, throughout the appeal period, left knee testing has shown full extension and flexion to well over 45 degrees, ranging from 120 degrees to full flexion, either without or with pain at full flexion. He denied problems with extension and primarily complained of pain with activities that require bending, or flexion of the knee and leg. There is no suggestion that any decrease in motion due to pain or other factors during periods of flare-ups or after repeated use over time would more nearly approximate the compensable criteria for flexion or extension. However, as the Veteran has painful limited motion that does not meet the compensable criteria under the applicable diagnostic code, a minimum compensable rating is warranted under 38 C.F.R. § 4.59 in conjunction with an applicable diagnostic code, or DC 5261. Sowers v. McDonald, 27 Vet. App. 472 (2016); Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). Thus, a 10 percent rating is warranted for the Veteran’s left knee throughout the appeal period. As noted above, the Veteran has described an occasional sensation of giving way or instability of the left knee after certain activities, as well as wearing a brace at times. Ratings of 10 to 30 percent are available for recurrent subluxation or lateral instability under DC 5257. 38 C.F.R. § 4.71a. However, the evidence does not show recurrent subluxation or lateral instability due to service-connected disability. Consideration of pain under 38 C.F.R. §§ 4.40 and 4.45 is not appropriate under DC 5257 because this code is not based on loss of range of motion. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). The Veteran is competent to describe his noticeable symptoms, such as a sensation of instability, giving way, or weakness at times, and his reports in this regard are generally consistent and credible. However, he is not competent to provide a diagnosis for the underlying condition causing those symptoms, as this requires interpretation of medical tests and imaging and his medical history, particularly in light of his separate left knee diagnoses. As noted above under the analysis for left knee chondromalacia, residuals of patellar dislocation, VA examiners have explained that the Veteran’s symptoms other than actual patellar dislocation or subluxation itself cannot be distinguished from his residuals of ACL tear. See, e.g., September 2016 VA addendum opinion. Thus, the notations of a history of moderate recurrent patellar subluxation in the VA examinations are not service-connected and are not subject to compensation. As summarized above, testing for left knee instability for private treatment in 2013 and during the 2014 VA examination was consistently negative or stable. Although the 2016 VA examiner did not conduct stability tests, there is no argument or indication that the Veteran’s symptoms or impairment were different at that time than when prior tests showed no lateral instability. To the extent the Veteran’s sensations of giving way or instability during certain activities are due to increased pain or swelling, this additional impairment during flare-ups or after repeated use over time is contemplated by the 10 percent rating assigned herein under § 4.59 in conjunction with DC 5261. To assign a separate rating under DC 5257 for the same symptoms would constitute impermissible pyramiding. Moreover, as noted above, a higher rating based on flare-ups or repeated use is not available under DC 5257 because that code is not based on limitation of motion. Therefore, a separate rating under DC 5257 is not warranted for the Veteran’s left knee disability. There is no argument or suggestion of ankylosis, meniscal impairment, tibia or fibula impairment, or genu recurvatum to warrant a separate or higher rating on that basis. See 38 C.F.R. § 4.71a, DCs 5256, 5258, 5259, 5262, 5263. CONTINUED ON NEXT PAGE   In summary, the Veteran’s left knee disability has remained relatively stable. Reasonable doubt is resolved in his favor to award a 10 percent initial rating, and the appeal is granted to that extent. However, a separate, higher, or staged rating is not warranted because the manifestations were not otherwise sufficient to meet the criteria for a separate or higher rating at any point. There is no reasonable doubt to resolve in his favor, and the appeal is otherwise denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wheatley 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.