Citation Nr: 21003473 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 13-19 886 DATE: January 21, 2021 ORDER Service connection for right hip disability is granted. Service connection for left hip disability is granted. Service connection for right knee disability is granted. Service connection for left knee disability is granted. Service connection for kidney disability is denied. Entitlement to a compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran’s right hip condition is proximately due to his service-connected ankle sprains and service-connected plantar fasciitis. 2. The Veteran’s left hip condition is proximately due to his service-connected ankle sprains and service-connected plantar fasciitis. 3. The Veteran’s right knee condition is proximately due to his service-connected ankle sprains and service-connected plantar fasciitis. 4. The Veteran’s left knee condition is proximately due to his service-connected ankle sprains and service-connected plantar fasciitis. 5. The preponderance of the evidence of record is against finding that the Veteran has had kidney failure or a kidney condition at any time during or approximate to the pendency of the claim. 6. Throughout the pendency of the appeal, the Veteran’s bilateral hearing loss has been productive of no more than Level II hearing impairment in his right ear and Level II hearing impairment in his left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for right hip condition, secondary to service-connected ankle sprains have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). 2. The criteria for service connection for left hip condition, secondary to service-connected ankle sprains have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). 3. The criteria for service connection for right knee condition, as secondary to service-connected ankle disabilities have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). 4. The criteria for service connection for left knee condition, as secondary to service-connected ankle disabilities have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). 5. The criteria for service connection for kidney condition, secondary to use of pain medication for service-connected ankle disabilities have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). 6. The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.85, Diagnostic Code 6100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1980 to July 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2012 and September 2016 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in January 2016. These matters were remanded by the Board in April 2016 and April 2019 for additional development. The Board notes that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, here the evidence reveals that the Veteran is employed and that he has not reported that his service-connected disability on appeal precludes substantially gainful employment. See Hearing Testimony, January 2016; see also Medical Treatment Record, August 2018 (noting the Veteran’s employment with the U.S. Postal Service). Therefore, the issue of entitlement to a TDIU is not before the Board. Service Connection To establish service connection for a claimed disorder, the following criteria must be met: (1) medical evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. 38 C.F.R. § 3.303; see also, Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active duty military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be found on a secondary basis where the following criteria is met: (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and, (3) evidence that the non-service-connected current disability is either proximately due to or as the result of a service-connected disability; or, aggravated beyond its natural progress by a service-connected disability. 38 C.F.R. § 3.310 (2018); see also, El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). 1. Service connection for right hip condition, secondary to service-connected ankle sprains. 2. Service connection for left hip condition, secondary to service-connected ankle sprains. 3. Service connection for right knee condition, as secondary to service-connected ankle disabilities. 4. Service connection for left knee condition, as secondary to service-connected ankle disabilities. The Veteran asserts that he developed right and left hip conditions and right and left knee conditions as a result of his service-connected ankle and foot conditions. The Veteran has testified and submitted statements that his gait has been altered due to the severity of his service-connected conditions and that he has been forced to work through the pain from his service-connected disabilities for so long that other parts of his body are now failing him. See Hearing Transcript, September 2017; see also VA Form 9, November 2017. In September 2017, the Veteran submitted an article on plantar fasciitis. The article explained that if plantar fasciitis is untreated, it may become a chronic condition. In that case, you may not be able to keep up your level of activity and may develop symptoms of foot, knee, hip and back problems because plantar fasciitis can change the way you walk. See Foot Care Article, September 2017. The Board notes that the Veteran has a diagnosis of right knee meniscal tear and left knee anterior cruciate ligament tear and bilateral osteoarthritis and bilateral trochanteric pain syndrome. See VA Knee Examination, July 2020; VA Examination, September 2016. In August 2019, a private physician reviewed the Veteran’s medical record and opined that the Veteran’s bilateral hip and knee conditions are at least as likely as not related to the Veteran’s service-connected bilateral plantar fasciitis and bilateral ankle disabilities. The private physician reasoned that the Veteran’s bilateral plantar fasciitis and bilateral ankle disabilities cause the Veteran to walk with an antalgic gait that presents itself as a limp that develops in response to pain often in the feet or ankles. The uneven gait causes uneven weight bearing in the larger joints such as the hips and knees and hastens the onset of osteoarthritis and generally damages the entire joint area of both the hips and knees. Further, three additional private physicians reviewed the August 2019 private opinion and submitted a statement agreeing with its conclusion that the Veteran’s bilateral hip and knee disabilities are related to his service-connected bilateral foot and ankle disabilities. See Medical Treatment Record, May 2020 and June 2020. The Board acknowledges the negative VA opinion evidence. However, based on all the medical and lay evidence, the Board finds that the evidence shows that the Veteran’s bilateral hip disabilities and bilateral knee disabilities are related to his service-connected bilateral foot and ankle disabilities. Accordingly, service connection is warranted. 5. Service connection for kidney condition, secondary to use of pain medication for service-connected ankle disabilities. The Veteran seeks service connection for functional impairment of his kidney that he asserts developed as a result of his service-connected conditions. Specifically, he contends that because of the high levels of medication he is required to take due to his service-connected conditions in order to function on a daily basis, his kidneys are failing him. See VA Form 9, November 2017. At the September 2017 hearing before a DRO, the Veteran testified that he has been told by his physicians that he developed a kidney condition, secondary to his service-connected foot and ankle conditions. See hearing Transcript, September 2017. The Board finds that service connection for a kidney condition is not warranted because the most probative evidence of record shows that the Veteran has not suffered a kidney condition for which compensation benefits can be granted. In order to be considered for service connection, a claimant must first have functional impairment. See 38 U.S.C. § 1110, 1131; Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). The term “disability” refers to a functional impairment that reduces earning capacity. See Saunders, 886 F.3d at 1363. To establish a disability, the claimant’s symptoms must result in “the level of a functional impairment of earning capacity.” Id. at 1367-68 (noting that the policy underlying veterans’ compensation is to compensate veterans whose ability to earn a living is impaired as a result of their military service). Service connection cannot be granted for injuries or diseases that are acute and transitory in nature, and do not result in residual functional impairment, because such injuries or diseases by definition would not reduce earning capacity. Here, the evidence does not show that the Veteran has suffered from a kidney condition resulting in functional impairment that reduces earning capacity. Medical treatment records show that the Veteran’s kidneys were a normal size and shape and have normal renal function. See Medical Treatment Records, April 2015 and October 2018. In July 2020, a VA examination was conducted where the Veteran reported that he was diagnosed with kidney failure years ago, had a scope done in 2014 by a non-VA provider, and reported being tested for a kidney condition due to blood in his urine. After a review of the record and an in-person examination, the examiner concluded that the Veteran does not have and has never been diagnosed with a kidney condition. The examiner reasoned that medical records since the Veteran’s military service are silent for a diagnosis of chronic kidney disease or any kidney disability. The examiner also noted that laboratory studies and diagnostic tests conducted in June 2020 were all normal. The Board finds the examiner’s opinion probative as it contains clear conclusions with supporting data and a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Thus, entitlement to service connection for a kidney condition is not warranted because the Veteran does not have any functional impairment to support a finding that he has suffered from a kidney condition during the appeal period. 6. Entitlement to a compensable rating for bilateral hearing loss. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may also be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran asserts that his bilateral hearing loss is more disabling than the noncompensable rating assigned. At the June 2016 VA audiological examination for compensation purposes, the Veteran complained of impaired hearing. On the authorized audiological evaluation, the Veteran exhibited pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 25 25 35 75 LEFT 15 25 30 40 60 The average pure tone threshold from 1000 to 4000 Hertz was 40 decibels in the right ear and 39 decibels in the left ear. Speech audiometry revealed speech recognition ability of 86 percent in the right ear and of 88 percent in the left ear. The Veteran was diagnosed with bilateral sensorineural hearing loss. These results show Level II hearing impairment in the right ear and Level II hearing impairment in the left ear. With these levels, a noncompensable rating is assigned under Table VII in 38 C.F.R. § 4.85. At the July 2020 VA audiological examination for compensation purposes, the Veteran complained of impaired hearing. On the authorized audiological evaluation, the Veteran exhibited pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 30 30 70 LEFT 15 20 30 30 60 The average pure tone threshold from 1000 to 4000 Hertz was 36 decibels in the right ear and 35 decibels in the left ear. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 88 percent in the left ear. The Veteran was diagnosed with bilateral sensorineural hearing loss. These results show Level I hearing impairment in the right ear and Level II hearing impairment in the left ear. With these levels, a noncompensable rating is assigned under Table VII in 38 C.F.R. § 4.85. While the Veteran has reported increased hearing loss, the Board finds that such functional effects are contemplated by the rating criteria. See VA examination, July 2020. Moreover, the Veteran’s bilateral hearing loss does not result in exceptional hearing loss for rating purposes. See 38 C.F.R. § 4.86. For these reasons, a compensable rating for the Veteran’s bilateral hearing loss is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran has also raised the issue of entitlement to a higher rating on an extraschedular basis. Specifically, he testified that his ability to work and communicate with his co-workers is impacted as a result of his service-connected hearing loss disability. He also reported that his hearing loss has significantly affected his daily activities and functioning because he is unable to hear female voices in normal conversations with his family. See Hearing Testimony, January 2016. Based on the Veteran’s testimony, the Board referred the issue of entitlement to an extraschedular rating for his bilateral hearing loss to the Director, Compensation Service, for extraschedular consideration in its April 2016 remand. In July 2017, the Director denied entitlement to a higher level of compensation for bilateral hearing loss on an extraschedular basis pursuant to the provisions of 38 C.F.R. § 3.321(b). After a thorough review of the lay and medical evidence, the Board agrees with the Director and finds that entitlement to an extraschedular rating is not warranted. Importantly, in Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017), it was noted that the Veteran’s complaints in the present case of difficulty hearing are precisely the effects that VA’s audiometric tests are designed to measure. Thus, those effects are contemplated by the schedular rating criteria. Additionally, even if the Veteran were experiencing hearing loss symptoms that were not contemplated by the rating schedule, there is no indication of any exceptional or unusual factors such as marked interference with employment or frequent periods of hospitalization. Instead, the record indicates that the Veteran has continued to work as a roofer and with the U.S. Postal Office throughout the appeal, albeit with some hearing difficulty, which, again, is contemplated by the schedule for reduced hearing acuity. Further, the Veteran has not claimed, and the record does not reflect that he has been hospitalized due to his hearing loss. In short, the Veteran’s credible statements regarding his hearing loss symptoms reinforce the conclusion that the Veteran’s disability pattern was not exceptional or unusual. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Certainly, the Veteran’s main complaint was reduced hearing acuity and clarity, which is contemplated by the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). As such, the preponderance of the evidence is also against a higher rating on an extraschedular basis. See 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111, 115 (2008). Therefore, the benefit-of-the-doubt doctrine is not applicable and an extraschedular rating for bilateral hearing loss is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.