Citation Nr: 21003576 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 17-02 835 DATE: January 22, 2021 ORDER A rating in excess of 20 percent for residuals of anterior cruciate ligament (ACL) repair and patellofemoral pain syndrome, right knee, is denied. A compensable rating for patellofemoral pain syndrome, left knee, prior to June 27, 2016, is denied. A rating in excess of 10 percent for patellofemoral pain syndrome, left knee, since June 27, 2016, is denied. Service connection for bilateral hearing loss is denied. Service connection for a left shoulder disorder is denied. FINDINGS OF FACT 1. The Veteran had active service from July 1993 to January 2000. 2. A right knee disability has been manifested by subjective complaints of pain; objective findings include no ankylosis, no recurrent subluxation or lateral instability, no tibial or fibular impairment, flexion of the right leg to be, at worst, 125 degrees, and extension to be, at worst, 0 degrees. 3. Prior to June 27, 2016, a left knee disability was manifested by subjective complaints of pain; objective findings included no recurrent subluxation or lateral instability, no semilunar cartilage condition, no tibial or fibular impairment, flexion of the left leg to be, at worst, 140 degrees, and extension to be, at worst, 0 degrees. 4. Since June 27, 2016, a left knee disability has been manifested by subjective complaints of pain; objective findings included no recurrent subluxation or lateral instability, joint effusion with no semilunar cartilage condition, no tibial or fibular impairment, flexion of the left leg to be, at worst, 140 degrees, and extension of the left leg to be, at worst, 0 degrees. 5. Bilateral hearing loss is not shown. 6. The Veteran incurred in a left arm injury in service; however, symptoms were not shown to be chronic, not continuous since service, and not shown to a compensable degree within one year of service; a current left shoulder disorder, diagnosed as degenerative joint disease (DJD), is not causally or etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for residuals of ACL repair and patellofemoral pain syndrome, right knee, have not been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 5257 (2020). 2. The criteria for a compensable rating for patellofemoral pain syndrome, left knee, prior to June 27, 2016, have not been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, DC 5260 (2020). 3. The criteria for a rating in excess of 10 percent for patellofemoral pain syndrome, left knee, since June 27, 2016, have not been met. 38 U.S.C. §§ 1131, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, DC 5260 (2020). 4. Bilateral hearing loss was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2020). 5. A left shoulder disorder was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In November 2019, the Board remanded the appeals for higher ratings for right and left knee disabilities and service connection for bilateral hearing loss, as well as denied service connection for a left shoulder disorder. The Veteran appealed the left shoulder disorder to the Veterans’ Claims Court. In August 2020, the Court Clerk vacated and remanded the claim for a left shoulder disorder. These actions form the basis for the current appeals. Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. §§ 4.1. Separate diagnostic codes identify the various disabilities. Right Knee Disability The Veteran is in receipt of a 20 percent rating under DC 5257 for a right knee disability. The Board will consider all appropriate diagnostic codes. Under the relevant diagnostic codes, a 30 percent rating is warranted when the objective medical evidence shows: • ankylosis of the knee with favorable angle in full extension, or in slight flexion between 0 and 10 degrees; • severe recurrent subluxation or lateral instability; • flexion of the leg limited to 15 degrees; • extension of the leg limited to 20 degrees; or • malunion of the tibia or fibula with marked knee or ankle disability. Turning to the medical evidence, ankylosis has not been shown. Specifically, in a June 2013 VA examination, the Veteran complained of right knee pain; however, ankylosis was not noted. Further, in a January 2020 VA examination, he complained of right knee pain but ankylosis was not shown. Therefore, a higher rating is not warranted on this basis. Next, the medical evidence does not show recurrent subluxation or lateral instability. Specifically, in June 2013 and January 2020 VA examinations, there was no evidence of recurrent subluxation or lateral instability. This evidence does not support a higher rating. With respect to flexion, the medical evidence does not show it to be limited to 15 degrees. Specifically, in June 2013 and January 2020 VA examinations, flexion of the right leg was limited to 125 degrees. As to extension, it has not been shown to be limited to 20 degrees. Specifically, in June 2013 and January 2020 VA examinations, extension of the right leg was limited to 0 degrees. As such, a higher rating is not warranted on this basis. Further, there is no evidence of malunion of the tibia or fibula. Specifically, in June 2013 and January 2020 VA examinations, malunion of the tibia or fibula was not noted. This evidence does not support a higher rating. Based on the above, the medical evidence does not support a rating in excess of 20 percent for a right knee disability. In this regard, the medical evidence showed no ankylosis, no recurrent subluxation or lateral instability, no tibial or fibular impairment, flexion of the right leg to be, at worst, 125 degrees, and extension of the right leg to be, at worst, 0 degrees. Clinical records do not contradict these findings. Therefore, the medical evidence does not support a rating in excess of 20 percent for a right knee disability. Left Knee Disability Prior to June 27, 2016. Prior to June 27, 2016, the Veteran was in receipt of a noncompensable rating under DC 5260 for a left knee disability. The Board will consider all appropriate diagnostic codes. Under the relevant diagnostic codes, a 10 percent rating is warranted when the objective medical evidence shows: • slight recurrent subluxation or lateral instability; • symptomatic removal of semilunar cartilage; • flexion of the leg limited to 45 degrees; • extension of the leg limited to 10 degrees; or • malunion of the tibia or fibula with slight knee or ankle disability. Turning to the medical evidence for the first period on appeal, the medical evidence does not show recurrent subluxation or lateral instability. Specifically, in a June 2013 VA examination, the Veteran complained of left knee pain; however, recurrent subluxation or lateral instability was not shown. Therefore, the evidence does not support a higher rating on this basis. Next, the evidence does not show a semilunar cartilage condition. Specifically, in a June 2013 VA examination, a semilunar cartilage condition was not noted. No other medical evidence supports a finding of a semilunar cartilage disorder. As such, the evidence does not support a higher rating on this basis. With respect to flexion, the medical evidence does not show it to be limited to 45 degrees. Specifically, in a June 2013 VA examination, flexion of the left leg was limited to 140 degrees. As to extension, it has not been shown to be limited to 10 degrees. Specifically, in a June 2013 VA examination, extension of the left leg was limited to 0 degrees (anatomically normal). Thus, a higher rating is not warranted based on limitation of motion. Further, there is no evidence of malunion of the tibia or fibula. Specifically, in a June 2013 VA examination, malunion of the tibia or fibula was not noted. This evidence does not support a higher rating. Based on the above, the medical evidence does not support a compensable rating for a left knee disability prior to June 27, 2016. In this regard, the medical evidence showed no recurrent subluxation or lateral instability, no tibial or fibular impairment, flexion of the left leg to be, at worst, 140 degrees, and extension of the left leg to be, at worst, 0 degrees. Clinical records do not contradict these findings. Therefore, the medical evidence does not support a compensable rating in for a left knee disability prior to June 27, 2016. Since June 27. 2016. Since June 27, 2016, the Veteran has been rated at 10 percent under DC 5260 for a left knee disability. The Board will consider all appropriate diagnostic codes. Under the relevant diagnostic codes, a 20 percent rating is warranted when the objective medical evidence shows: • moderate recurrent subluxation or lateral instability; • dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint; • flexion of the leg limited to 30 degrees; • extension of the leg limited to 15 degrees; or • malunion of the tibia or fibula with moderate knee or ankle disability. Turning to the medical evidence for the second period on appeal, the medical evidence does not show recurrent subluxation or lateral instability. Specifically, in a January 2020 VA examination, the Veteran complained of left knee pain; however, recurrent subluxation or lateral instability was not shown. This evidence does not support a higher rating. Next, while there is evidence of left knee effusion, the Veteran does not have a semilunar cartilage condition. Specifically, in a September 2018 clinical record, left knee effusion was noted; however, in a January 2020 VA examination, a semilunar cartilage condition was not noted. No other medical records indicate a left knee effusion. Therefore, this evidence does not support a higher rating. With respect to flexion, the medical evidence does not show it to be limited to 45 degrees. Specifically, in a January 2020 VA examination, flexion of the left leg was limited to 140 degrees. As to extension, it has not been shown to be limited to 10 degrees. Specifically, in a January 2020 VA examination, extension of the left leg was limited to 0 degrees. Thus, a higher rating is not warranted based on limitation of motion. Further, the evidence does not show malunion of the tibia or fibula. Specifically, in a January 2020 VA examination, malunion of the tibia or fibula was not noted. This evidence does not support a higher rating. Based on the above, the medical evidence does not support a rating in excess of 10 percent for a left knee disability since June 27, 2016. In this regard, the medical evidence showed no recurrent subluxation or lateral instability, no tibial or fibular impairment, flexion of the left leg to be, at worst, 140 degrees, and extension of the left leg to be, at worst, 0 degrees. Further, although left knee effusion was shown, a semilunar cartilage condition was not noted. Clinical records do not contradict these findings. Therefore, the medical evidence does not support a rating in excess of 10 percent for a left knee disability since June 27, 2016. The Board has also considered the Veteran’s lay statements that his knee disabilities are worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s knee disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings directly address the criteria under which knee disabilities are evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by bilateral knee disabilities and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeals are denied. Service Connection Claims Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Bilateral Hearing Loss Hearing loss is recognized by VA as a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Hearing loss is considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores, using the Maryland CNC test, are less than 94 percent. 38 C.F.R. § 3.385. However, hearing loss for VA purposes has not been shown. Specifically, in a June 2013 VA examination, the examiner diagnosed the Veteran with left ear hearing loss in the frequency range of 6000 Hz or higher. However, the pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 10 5 LEFT 10 10 10 10 15 Speech discrimination scores were 100 percent. Further, 6000 Hz is not considered in evaluation hearing loss for VA purposes. Further, in a February 2020 VA examination, the examiner diagnosed the Veteran with bilateral hearing loss in the frequency range of 6000 Hz or higher. However, the pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 15 15 20 LEFT 10 20 25 20 25 Speech discrimination scores were 94 percent in the right ear and 96 percent in the left ear. Although the Veteran has been diagnosed with hearing loss in the 6000 Hz range, he does not have hearing loss for VA purposes. Specifically, the medical evidence showed that the pure tone thresholds did not reach 40 dB or higher or were not 26 dB or higher in at least three frequencies. Further, speech discrimination scores were not less than 94 percent. Therefore, the first element of service connection, a current disability, is not shown, and the medical evidence does not support the claim of service connection. Left Shoulder Disorder As an initial matter, DJD is a chronic disorder under 38 C.F.R. § 3.309. Therefore, both direct and presumptive service connection will be addressed. Turning first to direct service connection, left shoulder bursitis was diagnosed in 2009 and a left shoulder strain and left shoulder DJD were diagnosed in 2013. Therefore, a current disorder is shown and the first element of direct service connection is met. As to an in-service incurrence, service treatment records (STRs) reflect that in 1998, the Veteran fell on his arm and was diagnosed with a left bicep tendon sprain; however, in a 1999 Medical Board Evaluation examination, the left shoulder was marked as normal. Nevertheless, as he incurred a left shoulder injury in service, the second element of direct service connection is met. As to nexus, in a June 2013 VA examination, the Veteran reported injuring the left shoulder in service while doing pushups. Upon examination, the examiner opined that a left shoulder disorder was less likely than not incurred in service. The examiner reasoned that while the Veteran had a left shoulder injury in service, it had resolved at separation. Further, the examiner noted that the Veteran did not complain of left shoulder pain post service until 2009. This evidence weighs against the claim. Further, in a November 2013 private examination, the clinician noted that the Veteran had been seen for left shoulder pain in service. The clinician then concluded that diagnosis of and treatment for this condition which persisted to the present during active duty should qualify this condition for service connection. This evidence weighs in support of the claim. The Board has the responsibility of weighing conflicting medical opinions and may place greater weight on one physician’s opinion over another depending upon factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. In this case, the Board affords the VA examiner’s opinion more probative weight than the private opinion. Specifically, the private clinician did not take into account that the Veteran did not report shoulder pain at the Medical Board examination in 1999 and did not seek treatment for left shoulder pain until nearly 10 years after separation. Moreover, the VA examiner noted the absence of complaints of left shoulder pain between 2000 and 2009 despite the Veteran seeking treatment for a bilateral knee disorder in 2003. Therefore, the medical evidence does not support the claim of direct service connection. Turning to presumptive service connection, the Veteran was discharged from service in 2000 but was not diagnosed with DJD until 2013. As he was discharged in 2000 and symptoms of DJD were not identified until 2013, over 10 years later, the medical evidence does not support service connection on a chronic in service or continuity of symptomatology basis. Further, the disorder did not manifest itself to a degree of 10 percent or more within one year from the date of separation of service. Specifically, the Veteran separated from service in 2000 and did not seek treatment for DJD of the left shoulder until 2009. Therefore, this evidence does not support presumptive service connection on a “manifest within one-year from separation” basis, and the medical evidence does not support presumptive service connection is not supported by the medical evidence. The Board has considered the Veteran’s lay statements that these disorders began in service. While he is competent to report symptoms because this requires only personal knowledge as it came to him through his senses, he is not competent to offer etiologies of these disorders. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims and there is no doubt to be otherwise resolved. As such, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28. Vet. App. 366, 369-370 (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ragofsky, 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.