Citation Nr: 21062242 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-49 024 DATE: October 6, 2021 ORDER Entitlement to a rating in excess of 10 percent for bilateral hearing loss is denied. REMANDED Entitlement to a rating in excess of 10 percent for status post left knee lateral meniscectomy is remanded. Entitlement to a rating in excess of 20 percent for degenerative joint disease, lumbosacral spine is remanded. FINDING OF FACT The Veteran's bilateral hearing loss has been manifested by hearing acuity of no worse than Level XI in the right ear and no worse than Level I in the left ear. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1976 to July 1983 and from March 1984 to December 1998. This matter comes before the Board of Veterans' Appeals (Board) from an April 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran withdrew his hearing request in October 2017. 38 C.F.R. § 20.704. The Board previously remanded this matter in May 2019. There has been substantial compliance with the remand directives for the issue decided herein. Increased Rating Entitlement to a rating in excess of 10 percent for bilateral hearing loss is denied. In January 2017, the Veteran filed a claim for an increased rating for his bilateral hearing loss. Therefore, the period on appeal begins January 21, 2016, one year prior to receipt of the Veteran's claim for an increased rating. The Veteran's hearing loss is currently rated 10 percent disabling pursuant to38 C.F.R. § 4.85, DC 6100. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test 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). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, 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. § 4.85, Tables VI and VII. 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. 38 C.F.R. § 4.86(a). 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. 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). The Board remanded the appeal in 2019 to obtain a copy of the VA audiological evaluation conducted in August 2016, but only available for viewing in "CPRS Tools, Audiogram Display." The RO has added the report from this outpatient audiological evaluation to the claims file; however, it is not sufficient for rating purposes with regard to this appeal because only the pure tone thresholds were included. No speech recognition scores were provided. See 38 C.F.R. § 3.385. A March 2017 VA examination reveals that the Veteran reported trouble with comprehension, especially when there is background noise. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: March 2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 90 105 105 105 101.25 16 LEFT 15 45 70 70 50 96 An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in the right ear. Applying the results to Table VIA yields Level X in the right ear. Applying the results to Table VI, the findings yield a numeric designation of Level XI in the right ear. Table VI yields the highest numeral for the right ear. Entering the resulting bilateral numeric designation of Level XI for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. A December 2019 VA treatment record reflects the Veteran reported poor hearing aid function. Based on the evidence above, a rating in excess of 10 percent for the Veteran's bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's reports of difficultly with comprehension. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, a rating in excess of 10 percent for hearing loss is not warranted. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for degenerative joint disease, lumbosacral spine is remanded. The Veteran seeks a rating in excess of 20 percent for lumbosacral spine degenerative joint disease. Unfortunately, another remand is required. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The May 2019 remand directives instructed the examiner to estimate the loss of motion due to pain, weakness, lack of endurance, incoordination, and/or fatigue as reported in the March 2017 VA examination report - based upon the medical evidence of record and the Veteran's lay statements. The Veteran was afforded a VA examination in January 2020. During the clinical examination, the Veteran achieved a range of motion of 0 to 90 degrees. The examiner indicated that there would be no additional limitation of motion due to flare-ups or with repeated use over time. In direct response to the question posed in the remand directives, the examiner stated, "[the Veteran] has full range of motion of the lumbar spine with pain in bilateral flexion of the lumbar spine in the paraspinal muscles." See January 2020 VA examination report, page 11. During the March 2017 VA examination, however, the Veteran only achieved lumbar spine range of motion from 0 to 80 degrees, which is less than normal. The March 2017 examination report also reflects that the Veteran reported flare-ups noting bending over provokes severe flare ups involving limited repetitive bending and postural intolerance. It is unclear how the examiner's statement in the January 2020 examination report fully addresses the Sharp aspect and the Board's specific remand request that the examiner "comment on the Veteran's report of limited repetitive bending and postural intolerance regarding his back disability." Moreover, the examiner's statement suggests that the Sharp opinion was limited to the findings noted at the January 2020 examination, and not necessarily the one in 2017. For these reasons, a clarifying addendum opinion is needed. 2. Entitlement to a rating in excess of 10 percent for status post left knee lateral meniscectomy is denied. As discussed in the prior Board remand, the Veteran presented for a VA examination in March 2017; this examination was not fully compliant with the requirements set forth by Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). During the March 2017 VA examination, the Veteran reported pain with flare-ups. He reported his flare-ups occur two to three times a week during normal activities. The examiner indicated the Veteran described his functional loss or impairment as limited ability to run and perform extended weight bearing activities. The examiner indicated pain, fatigue, weakness, and lack of endurance significantly limit functional ability with repeated use over a period of time and during a flare-up; but did not describe the limitation in terms of range of motion. In compliance with the Board's prior remand directives, the Veteran underwent a VA examination in January 2020. During this examination, the Veteran reported he has flare-ups that occur every two weeks that last a couple of hours and are precipitated by jumping and prolonged walking. The examiner indicated the Veteran did not report having any functional loss or impairment of the joint. The examiner also checked the necessary boxes to indicate pain, weakness, fatigability, or incoordination do not significantly limit functional ability with repeated use over a period of time or during a flare-up. Regarding the directive to provide an estimation of loss of motion due to pain, weakness, lack of endurance, incoordination, and/or fatigue as reported in the 2017 examination, the examiner stated "[the Veteran] has equal range of motion of the left knee (0-130 degrees) but now without pain to the left knee." See January 2020 VA examination report, page 13. It is unclear how this statement fully addresses the Sharp aspect and the Board's specific remand request that the examiner "comment on the Veteran's report of limited ability to run and perform extended weight bearing activities during occasional flare-ups of acute exacerbations of pain involving his left knee" as reported at the March 2017 examination. For these reasons, a clarifying addendum opinion is needed. The matters are REMANDED for the following action: Return the file to the January 2020 VA examiner, or another suitable VA examiner. An additional VA examination should be conducted if it is deemed necessary to provide the requested opinions. The examiner should review this remand in its entirety. The examiner should provide an addendum (retrospective) opinion clearly identifying whether there is additional loss of motion in the lumbar spine and the left knee during flare-ups or with repetitive use (due to pain, weakness, lack of endurance, incoordination, and/or fatigue) - based upon the medical evidence of record and the Veteran's lay statements as reported in the March 2017 and January 2020 VA examination reports. In addressing additional loss of range of motion due to functional loss during flare-ups and repetitive use, the examiner is asked to comment on the Veteran's report of limited repetitive bending and postural intolerance regarding his back disability and limited ability to run and perform extended weight bearing activities during occasional flare-ups of acute exacerbations of pain involving his left knee. (Continued on the next page) If it is not possible to provide a specific range of motion measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.Aoughsten, Associate 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.