Citation Nr: 21062118 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 16-57 297 DATE: October 6, 2021 ORDER An initial compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to an initial compensable rating for left knee patellofemoral pain syndrome prior to October 12, 2020, and a rating in excess of 10 percent thereafter is remanded. Entitlement to an initial compensable rating for right knee patellofemoral pain syndrome prior to October 12, 2020, and a rating in excess of 10 percent thereafter is remanded. Entitlement to an initial compensable rating for right shoulder strain prior to October 12, 2020, and a rating in excess of 20 percent thereafter is remanded. Entitlement to an initial rating in excess of 10 percent for left shoulder acromioclavicular joint fracture with trapezoid muscle injury healed with degenerative acromioclavicular (AC) joint disease prior to May 23, 2016, and a rating in excess of 20 percent thereafter is remanded. Entitlement to an initial compensable rating for a right groin strain is remanded. Entitlement to an initial compensable rating for left great toe fracture with degenerative joint disease prior to October 12, 2020, and a rating in excess of 10 percent thereafter is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran's bilateral hearing loss has been productive of no more than level II hearing acuity in either ear. CONCLUSION OF LAW The criteria for an initial compensable rating for the Veteran's service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from February 1994 to February 1998 and from December 2005 to December 2013. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, granted service connection for left shoulder AC joint fracture with trapezoid muscle injury healed with degenerative AC joint disease (left shoulder disability) and assigned a 10 percent disability rating, granted service connection for a right shoulder strain (right shoulder disability) and assigned a noncompensable rating, granted service connection for left great toe fracture with degenerative joint disease (left great toe disability) and assigned a noncompensable rating, granted service connection for bilateral hearing loss and assigned a noncompensable rating, granted service connection for a right groin strain and assigned a noncompensable rating, granted service connection for right and left knee patellofemoral pain syndrome (right and left knee disabilities) and assigned noncompensable ratings, effective December 23, 2013, respectively. These matters were before the Board in June 2019, at which time they were remanded for additional evidentiary development. In an April 2021 rating decision, the RO increased the left shoulder disability to 20 percent, effective May 23, 2016, and increased the right shoulder disability to 20 percent, left great toe disability to 10 percent, left knee disability to 10 percent, and right knee disability to 10 percent, effective October 12, 2020, respectively. While in remand status, in the April 2021 rating decision, the RO granted service connection for posttraumatic headaches. Accordingly, this matter is no longer before the Board. Lastly, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to a service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. In the present case, September and October 2020 VA examinations indicated that the Veteran's service-connected bilateral hearing loss, right groin strain, bilateral shoulder, and bilateral knee disability impact his ability to work. Accordingly, the issue of entitlement to a TDIU is before the Board. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001) ("[O]nce a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the VA must consider... TDIU.") Entitlement to an initial compensable rating for bilateral hearing loss Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In the case of an initial increased rating claim, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different rating for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). If there is a question as to which two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Evaluations of bilateral defective hearing range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from bilateral service-connected defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.84, Tables VI and VII, Diagnostic Codes 6100. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenman v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, 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. 38 C.F.R. § 4.86 (a). Further, when the average 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 elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). Table VIA will be used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. 38 C.F.R. § 4.85(c). In the present case, the Veteran was assigned a noncompensable disability rating for his service-connected bilateral hearing loss, effective December 23, 2013, pursuant to Diagnostic Code 6100. The Veteran was afforded a VA examination in April 2015. Pure tone thresholds in the right and left ears were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 25 40 40 LEFT 15 30 30 35 The pure tone average was 30 decibels in the right ear and 28 (27.5) in the left ear. Speech recognition scores using the Maryland CNC test were 100 percent in the right ear and 100 percent in the left ear. Such examination findings translate to a level I hearing in the right ear and a level I hearing in the left ear. 38 C.F.R. § 4.85, Table VI, Applying Table VII, Diagnostic Code 6100, this equates to a 0 percent rating. Based on the above evidence, the exceptional patterns of hearing impairment under § 4.86 are not for application. The Veteran was afforded a VA examination in September 2020. Pure tone thresholds in the right and left ears were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 20 50 60 LEFT 30 20 30 50 The pure tone average was 39 (38.75) decibels in the right ear and 33 (32.5) in the left ear. Speech recognition scores using the Maryland CNC test were 90 percent in the right ear and 94 percent in the left ear. Such examination findings translate to a level II hearing in the right ear and a level I hearing in the left ear. 38 C.F.R. § 4.85, Table VI, Applying Table VII, Diagnostic Code 6100, this equates to a 0 percent rating. Based on the above evidence, the exceptional patterns of hearing impairment under § 4.86 are not for application. The Veteran's noncompensable rating for bilateral hearing loss is based on the results of the April 2015 and October 2020 VA examinations. Based on the audiological test results, a compensable rating is not warranted throughout the rating period on appeal. Furthermore, the Board acknowledges the impact of the Veteran's hearing loss on his daily activities and VA's obligation to resolve all reasonable doubt in the Veteran's favor. However, given that the assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered there is no doubt as to the proper evaluation to assign. Lendenmann v. Principi, 3 Vet. App. 345 (1992); 38 C.F.R. § 4.85, Tables VI, VIA, and VII, Diagnostic Code 6100. Applying the audiological test results most favorable to the Veteran to the regulatory criteria, the Board is compelled to conclude that the preponderance of the evidence is against entitlement to a compensable rating throughout the rating period on appeal. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for left knee patellofemoral pain syndrome prior to October 12, 2020, and a rating in excess of 10 percent thereafter is remanded; 2. Entitlement to an initial compensable rating for right knee patellofemoral pain syndrome prior to October 12, 2020, and a rating in excess of 10 percent thereafter is remanded; 3. Entitlement to an initial compensable rating for right shoulder strain prior to October 12, 2020, and a rating in excess of 20 percent thereafter is remanded; 4. Entitlement to an initial rating in excess of 10 percent for left shoulder acromioclavicular joint fracture with trapezoid muscle injury healed with degenerative AC joint disease prior to May 23, 2016, and a rating in excess of 20 percent thereafter is remanded; 5. Entitlement to an initial compensable rating for a right groin strain is remanded. Pursuant to the Board's remand instructions, VA examinations were performed in October 2020 to assess the severity of the Veteran's bilateral knee, bilateral shoulder, and right groin strain. However, after a review of the evidence, the Board finds that these examinations are insufficient to determine the present claims. In this regard, while pain was noted when the right knee, right shoulder, left shoulder, and right hip were used in non-weight bearing positions, the examiner failed to provide correlating range of motion findings pursuant to the Board's June 2019 remand instructions and in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016). Furthermore, the Board notes that x-rays of the right and left knees were performed in May 2017 and x-rays of the left shoulder and an MRI [Magnetic Resonance Image] of the left shoulder were performed in November 2019 and January 2020, respectively. However, these diagnostic reports and images are not associated with the claims file. Accordingly, the Board finds that addendum medical opinions and all outstanding diagnostic reports and images should be obtained and associated with the claims file on remand. 2. Entitlement to an initial compensable rating for left great toe fracture with degenerative joint disease prior to October 12, 2020, and a rating in excess of 10 percent thereafter is remanded. Pursuant to the Board's remand instructions, a VA examination was performed in October 2020 to assess the severity of the Veteran's left great toe disability. During this examination the Veteran did not report flare-ups of pain and the examiner did not render an opinion regarding the severity of the Veteran's left great toe disability during a flare-up. However, the Board notes that during the April 2015 VA examination, the Veteran reported aching of his old fracture site with increased activities. Accordingly, the Board finds that an addendum opinion is warranted on remand. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to a TDIU is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F. 3d 1378 (Fed. Cir. 2001). As discussed, VA examinations reveal that the Veteran's service-connected bilateral hearing loss, right groin strain, bilateral shoulder, and bilateral knee disability impact his ability to work. The Veteran's treatment records indicate that he remained unemployed through most of the rating period on appeal except for a part-time job over the holidays. A review of the record shows that the Veteran has not been provided the specific notice required in response to a claim for a TDIU, to include a request to submit a VA Form 21-8940, and the originating agency has not adjudicated the TDIU issue. Therefore, the Board finds that further action is required of the originating agency before the Board decides the TDIU issue. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records from March 2021 to the present. 2. Obtain and associate with the claims file the Veteran's diagnostic reports and images associated with his treatment records, including May 2017 bilateral knee x-rays, November 2019 left shoulder x-rays, and January 2020 MRI scan of the left shoulder. 3. After completion of #1 and #2, forward the claims file, including a copy of this remand, to the October 2020 examiner for an addendum medical opinion. If the October 2020 examiner is unavailable, forward to an appropriate clinician. A VA examination is only necessary if deemed so by the examiner. The examiner should conduct a review of the record and respond to the following questions: A. With regard to the October 2020 VA examination, provide an estimate of the Veteran's right knee range of motion in the weight bearing and non-weight bearing position and note at which point there is pain, if any. B. With regard to the October 2020 VA examination, provide an estimate of the Veteran's right shoulder range of motion in the weight bearing and non-weight bearing position and note at which point there is pain, if any. C. With regard to the October 2020 VA examination, provide an estimate of the Veteran's left shoulder range of motion in the weight bearing and non-weight bearing position and note at which point there is pain, if any. D. With regard to the October 2020 VA examination, provide an estimate of the Veteran's right hip range of motion in the weight bearing and non-weight bearing position and note at which point there is pain, if any. E. With regard to the October 2020 VA examination, provide an estimate of the Veteran's left great toe disability during a flare-up as reported during the April 2015 VA examination, i.e., moderate, moderately severe, or severe. F. With regard to the October 2020 VA examinations for the right knee, left knee, right shoulder, left shoulder, right groin strain, and left great toe disability, indicate how far back these results would apply (i.e., one year, two years, etc.). The examiner is to attempt to elicit information from the record to reply to A, B, and C. Should the examiner maintain that they cannot do so without resorting to speculation, they must explain why this is so. Note: Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner. The examiner may indicate the degree of confidence that they place on their estimate, on a scale of 1 to 5, with 1 being least confident and 5 being most confident. The examiner should provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. 4. Provide the Veteran with notice of how to substantiate a claim for entitlement to TDIU. Additionally, provide him with a VA Form 21-8940 in connection with the inferred claim for entitlement to a TDIU, and request that he supply the requisite information Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Merrick 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.