Citation Nr: 21002019 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 13-18 574A DATE: January 12, 2021 ORDER Entitlement to an increased disability evaluation for right total knee replacement, currently rated as 30 percent disabling, from April 1, 2016, is denied. Entitlement to an increased disability evaluation for left total knee replacement, currently rated as 30 percent disabling, from March 1, 2015, is denied. Entitlement to an increased disability evaluation for bilateral hearing loss, rated as noncompensable for the rating period prior to February 20, 2018, is denied. Entitlement to an increased disability evaluation for bilateral hearing loss, rated as 10 percent disabling for the rating period since February 20, 2018, is denied. FINDINGS OF FACT 1. Left total knee replacement is manifested by complaints of pain, limitation of flexion, and intermittent weakness. 2. Right total knee replacement is manifested by complaints of pain, limitation of flexion, and intermittent weakness. 3. For the rating period prior to February 20, 2018, the Veteran’s bilateral hearing loss disability was manifested by no more than Level I hearing in his right ear and Level VI hearing in his left ear. 4. For the rating period since February 20, 2018, the Veteran’s bilateral hearing loss disability is manifested by no more than Level II hearing in his right ear and Level VII hearing in his left ear. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 30 percent for left total knee replacement for the period beginning on March 1, 2015, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055 (2019). 2. The criteria for a disability evaluation in excess of 30 percent for right total knee replacement, for the period beginning on April 1, 2016, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055 (2019). 3. The criteria for a compensable disability rating for bilateral hearing loss disability are not met for the rating period prior to February 20, 2018. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.85-4.87, Diagnostic Code 6100 (2019). 4. The criteria for a disability rating in excess of 10 percent for bilateral hearing loss disability for the rating period since February 10, 2018 are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.85-4.87, Diagnostic Code 6100 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the U.S. Army from August 1963 to August 1966. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a November 2011 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Winston-Salem, North Carolina. In a June 2017 decision, the Board denied increased ratings for the right knee osteoarthritis and left knee arthritis prior to February 18, 2014 and March 24, 2015, respectively, and granted temporary total ratings for both knees for one year from those dates, in accordance with the provisions of 38 C.F.R. § 4.30, and remanded the issue of the appropriate rating after the one year convalescent period for further development. The RO implemented this decision awarding the total rating for the right knee until March 1, 2015 and the left knee until April 1, 2016. In January 2018, the Board remanded the case to the Agency of Original Jurisdiction (AOJ). During the pendency of the appeal, in a May 2019 rating decision, the Veteran was awarded an increased, 10 percent disability evaluation for his bilateral hearing loss, effective February 20, 2018. In addition, the Veteran was awarded 30 percent disability evaluation, per knee, for his right and left total knee replacement; an effective date of April 1, 2016 was assigned for the right knee and an effective date of March 1, 2015 was assigned for the left knee. The Veteran’s claims for increased disability evaluations for his right and left knees are characterized as listed above, based on the change in Diagnostic Codes necessitated by the right and left total knee replacements. As the Veteran has not been granted the maximum benefits allowed, the claims of entitlement to increased disability rating for his bilateral hearing loss, right total knee replacement, and left total knee replacement remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). A supplemental statement of the case was most recently issued in May 2019. The case has since been returned to the Board for appellate review. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. § § 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). 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. See Johnson v. Brown, 9 Vet. App. 7 (1996). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). 1. Entitlement to an increased disability evaluation for right total knee replacement, currently rated as 30 percent disabling. 2. Entitlement to an increased disability evaluation for left total knee replacement, currently rated as 30 percent disabling. The Veteran’s right total knee replacement and left total knee replacement are currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5055. The Veteran received 100 percent from February 18, 2014 and 30 percent from March 1, 2015 for his right knee; he received 100 percent from March 24, 2015 and 30 percent from April 1, 2016 for her left knee. Diagnostic Code 5055 assigns a 100 percent disability rating for one year following implantation of a prosthetic replacement of the knee joint. A 60 percent disability rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. For intermediate degrees of residual weakness, pain or limitation of motion, the knee should be rated by analogy to Diagnostic Codes 5256, 5261, or 5262. The minimum rating is 30 percent. Diagnostic Code 5256 applies to ankylosis (total loss of joint mobility) of the knee. Diagnostic Code 5261 provides for a 40 percent disability rating for extension limited to 30 degrees. A 50 percent disability evaluation is assigned for extension is limited to 45 degrees. Under Diagnostic Code 5262, a 40 percent disability evaluation is assigned for nonunion of the tibia and fibula with loose motion, requiring a brace. For the time period from March 1, 2015, a rating in excess of 30 percent is not warranted for the Veteran’s service-connected right total knee replacement under 38 C.F.R. § 4.71a, Diagnostic Codes 5055, 5256, 5261, and 5262. Likewise, for the time period from April 1, 2016, a rating in excess of 30 percent is not warranted for the Veteran’s service-connected left total knee replacement. The Board has considered entitlement to higher ratings under Diagnostic Codes 5256, 5261, and 5262, as directed by Diagnostic Code 5055. The Veteran does not contend, and the medical evidence of record does not demonstrate, that the Veteran has ankylosis and nonunion of the tibia and fibula of either leg. Likewise, the Veteran’s limitation of motion of the left knee or right knee also does not equate to limitation of extension of the leg to 30 degrees. As such, a higher rating under Diagnostic Code 5261 is not warranted. The February 2018 VA examination report reflects that the Veteran had normal extension and flexion to 110 degrees on the right, and normal extension and flexion to 90 degrees on the left. The Board also finds that the assignment of a higher (60 percent) rating is not warranted under Diagnostic Code 5055 for severe, chronic residuals of knee replacement consisting of severe painful motion or weakness in the right or left knee. VA treatment records, as well as the February 2018 VA examination report, reflect that the Veteran did not experience pain, weakness, incoordination, or fatigability which results in limitation of functional ability. There was also no evidence of instability, deformity, atrophy, or swelling. Treatment records during the appeal period show that the Veteran experiences residual pain, but not that it was severe or that any weakness was consistent or of such severity that a 60 percent under Diagnostic Code 5055 was warranted. The Board further finds that there is no basis for the assignment of any higher rating based on consideration of functional loss of the right knee or left knee. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2018); Deluca, 8 Vet. App. at 204-06; Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). The Board has considered the Veteran’s reports of pain, reduced range of motion, and flare-ups. However, upon physical examination, the Veteran has not demonstrated limitation of extension or flexion of either knee to warrant the assignment of any higher evaluations. The evidence reflects that the currently assigned 30 percent disability rating properly compensates the Veteran for the extent of functional loss resulting from pain and reduced range of motion of the right knee and left knee. Here, the available medical findings do not show that painful motion, limitation of motion on repetitive use testing, or pain or limitation of motion on active motion/passive motion/in weight-bearing/nonweight-bearing resulted in functional loss warranting the assignment of any higher evaluation during the appeal period. See Correia v. McDonald, 28 Vet. App. 158 (2016). As a result, the evidence of record reveals manifestations consistent with the currently assigned 30 percent disability ratings, per knee, for right total knee replacement and left total knee replacement. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 3. Entitlement to an increased disability evaluation for bilateral hearing loss, rated as noncompensable for the rating period prior to February 20, 2018. 4. Entitlement to an increased disability evaluation for bilateral hearing loss, rated as 10 percent disabling for the rating period since February 20, 2018. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Diagnostic Code 6100, which is used to evaluate the Veteran’s bilateral hearing loss disability, provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state licensed audiologist including a controlled speech discrimination and the pure tone threshold average, which is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Under 38 C.F.R. § 4.86(a), it states that when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table IV or Table VIa, whichever results in the higher numeral. Each ear is to be evaluated separately. Id. The provisions of 38 C.F.R. § 4.86(b) provide that when the 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. That numeral will then be evaluated to the next higher Roman numeral. Id. Prior to February 20, 2018 At the VA audiological examination in October 2011, the pure tone thresholds, in decibels, for the right and left ears were as follows: 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Right Ear: 20 35 55 85 Left Ear: 35 55 75 100 The pure tone average was 48.75 on the right and 66.25 on the left. Maryland CNC speech recognition scores were 96 percent in the right ear and 72 percent in the left ear. As required by Martinak v. Nicholson, 21 Vet. App. 447 (2007), the October 2011 examiner elicited information from the Veteran about the functional effects of his hearing loss disability. The Veteran told the examiner that he did not experience any functional impairment as a result of his bilateral hearing loss. Based upon the results of the VA audiological examination, the Veteran is not entitled to a compensable disability rating for the rating period prior to February 20, 2018. The Veteran is assigned a Level I for the right ear and Level VI for the left ear in accordance with Table VI of 38 C.F.R. § 4.85, based on the audiological findings in the October 2011 VA examination. The intersection point for a Level I (right) and Level VI (left) under Table VII of 38 C.F.R. § 4.85 shows that the hearing loss does not exceed the levels contemplated for the currently assigned noncompensable (0 percent) disability rating. Thus, the audiometric evidence of record does not support a finding of entitlement to a compensable disability evaluation for the entire rating period on appeal. Additionally, the Board points out that the provisions of 38 C.F.R. § 4.86(a) (Exceptional patterns of hearing impairment) are inapplicable, as the Veteran did not have pure tone thresholds of 55 or more in the specified frequencies (1000, 2000, 3000, and 4000 Hertz) at the October 2011 VA examination. The Board also notes that the provisions of 38 C.F.R. § 4.86(b) are not applicable as both ears are not shown to manifest 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hz. Consequently, a compensable disability evaluation is not warranted for the rating period prior to February 20, 2018. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-55. For the rating period since February 20, 2018 At the VA audiological examination in February 2018, the pure tone thresholds, in decibels, for the right and left ears were as follows: 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Right Ear: 25 40 70 95 Left Ear: 40 65 80 100 The pure tone average was 57.5 on the right and 71.25 on the left. Maryland CNC speech recognition scores were 95 percent in the right ear and 60 percent in the left ear. As required by Martinak, supra, the VA examiner elicited information from the Veteran about the functional effects of his hearing loss disability. The Veteran told the examiner that he experiences difficulty hearing and understanding people without hearing aids. Based upon the results of the VA audiological examination, the Board finds that the Veteran is entitled to the currently assigned 10 percent disability rating for the rating period since February 20, 2018. The Board notes that, in accordance with Table VI of 38 C.F.R. § 4.85, based on the audiological findings in February 2018, the Veteran is assigned Level II for the right ear and Level VII for the left ear. The intersection point for a Level II (right) and Level VII (left) under Table VII of 38 C.F.R. § 4.85 shows that the hearing loss does not exceed the levels contemplated for the currently assigned 10 percent disability rating. The provisions of 38 C.F.R. § 4.86(a) (Exceptional patterns of hearing impairment) do not assist the Veteran. Although the Veteran has pure tone thresholds of loss of 55 decibels or greater in the four relevant frequencies in each ear, in accordance with Table VIa, the Veteran would be assigned Level VII in the right ear and Level V in the left ear, which would result in a 30 percent disability evaluation according to Table VII. The provisions of 38 C.F.R. § 4.86(b) are also not applicable as both ears are not shown to manifest 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hz. Under these circumstances, a disability evaluation in excess of 10 percent is not warranted for the rating period since February 20, 2018. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-55. Additional considerations In addition, the Board has considered whether an extraschedular rating is warranted for the Veteran’s bilateral hearing loss during either of the rating periods on appeal. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve, on the basis of the criteria set forth in this paragraph, an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The United States Court of Appeals for Veterans Claims (Court) has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) (“[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted”). Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran’s disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. at 116. In other words, the first element of Thun compares a veteran’s symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate. Yancy, 27 Vet. App. at 494-95. With respect to the first prong of Thun, the evidence in the instant appeal does not establish such an exceptional disability picture as to render the schedular criteria inadequate. The schedular rating criteria for rating hearing loss provide for disability ratings based on audiometric evaluations, to include speech discrimination and pure tone testing. Here, the Veteran’s hearing loss symptoms and described hearing impairments are contemplated by the schedular rating criteria. The Veteran has reported symptoms of difficulty hearing speech and consequent problems with understanding conversation. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss in various contexts, as measured by both audiometric testing and speech recognition testing. The ability of the Veteran to hear sounds and voices is measured and rated by an audiometric test, as this test measures different frequencies and captures high frequency hearing loss from sources including voices, music, sirens, and certain high-pitched sounds. The ability of the Veteran to understand people, as well as the need to ask others to repeat themselves on a regular basis, is rated by a speech recognition test, as this test measures conversation comprehension, words, and missed conversations. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns which were not demonstrated in this case, and as measured by both audiometric testing and speech recognition testing. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding “that the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech”). The Board notes that it logically follows that difficulty hearing and understanding speech would impact a veteran in a variety of ways, including potential embarrassment and frustration, but the rating schedule is not written to account for every possible consequence associated with each symptom. Significantly, the Court in Doucette reviewed a similar factual situation, inasmuch as the Board had considered that claimant’s report of being embarrassed from having to ask others to repeat themselves, among other reported difficulties, in finding that the resultant effect of the reported symptoms was difficulty hearing. The Court determined that the claimant had not alleged any symptoms in that case that could be considered exceptional or unusual for a claimant suffering from hearing loss. See Id., 28 Vet. App. at 372-73. The decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIa were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. The regulatory history of 38 C.F.R. §§ 4.85 and 4.86 includes revisions, effective June 10, 1999. See 64 Fed. Reg. 25,202 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran’s Health Administration (VHA) in developing criteria that contemplated situations in which a veteran’s hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that, when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIa were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real-life industrial setting. 59 Fed. Reg. 17,295 (Apr. 12, 1994). The inherent purpose of the schedular rating criteria is to determine, as far as practicable, the severity of functional impact resulting from a service-connected disability, including any resultant occupational and social impairment, and therefore contemplates the Veteran’s difficulties functioning in a social environment due to hearing loss. Accordingly, the Board finds that the Veteran’s reported hearing-related difficulties are factors contemplated in the regulations and schedular rating criteria. See also Doucette, 28 Vet. App. 366. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hallie E. Brokowsky, 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.