Citation Nr: 21069443 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 16-44 943 DATE: November 18, 2021 ORDER Entitlement to a separate 10 percent rating, but no higher, for left knee patellofemoral syndrome based upon instability from September 9, 2015, is granted. Entitlement to a separate 10 percent rating, but no higher, for right knee patellofemoral syndrome based upon instability from May 21, 2020, is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for right ear hearing loss is denied. REMANDED Entitlement to a rating in excess of 10 percent prior to January 15, 2021, and in excess of 40 percent thereafter for right knee patellofemoral syndrome is remanded. Entitlement to a rating in excess of 10 percent prior to January 15, 2021, and in excess of 30 percent thereafter for left knee patellofemoral syndrome is remanded. FINDINGS OF FACT 1. From September 9, 2015, the Veteran's left knee patellofemoral syndrome is productive of no more than slight instability. 2. From May 21, 2020, the Veteran's right knee patellofemoral syndrome is productive of no more than slight instability. 3. The evidence is in equipoise as to whether the Veteran's tinnitus is related to service. 4. The most probative evidence of record weighs against a conclusion that right ear hearing loss was incurred in service; sensorineural hearing loss was not demonstrated within one year of service. CONCLUSIONS OF LAW 1. From September 9, 2015, the criteria for entitlement to a separate 10 percent rating for left knee injury residuals with chondromalacia patella based upon instability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.45, 4.49, 4.71a, DC 5257. 2. From May 21, 2020, the criteria for entitlement to a separate 10 percent rating for left knee injury residuals with chondromalacia patella based upon instability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.45, 4.49, 4.71a, DC 5257. 3. Resolving all reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. § 5107 ; 38 C.F.R. §§ 3.102, 3.159, 3.307, 3.309. 4. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 1986 to September 1995. This matter comes before the Board of Veterans' Appeals (Board) from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In July 2018 and April 2021, the Board remanded the claims for additional development, to include medical opinions. The Board has added the issue seeking entitlement to a separate rating for instability of the right knee, as such has been raised by the record and is part of the current appeal before the Board seeking an increased rating for the service-connected knee disability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Board finds the issue of entitlement to TDIU was not raised by the Veteran or the record. Therefore, the TDIU issue is not addressed in the current appeal. 1. Entitlement to a separate 10 percent rating, but no higher, for left knee patellofemoral syndrome based upon instability from September 9, 2015, 2. Entitlement to a separate 10 percent rating, but no higher, for right knee patellofemoral syndrome based upon instability from May 21, 2020, The Board finds that a separate 10 percent rating, under DC 5257, are warranted for the Veteran's right and left knee disabilities based on instability. Based on the evidence both the Veteran's left and right knee instability more nearly approximate a "slight" disability. In this regard, the Veteran has consistently reported intermittent instability and weakness and that both his right and left knee occasionally gave way. The VA treatment records also document that the Veteran wore braces for both his left and right knees and that he occasionally reported falling after his knee gave out. In light of the above, the Board finds the Veteran's reports of instability to be credible and finds that they are substantiated by the medical evidence of record. The Board notes that although joint stability testing has not explicitly established the presence of knee instability, the Court has held that a claim based on knee instability cannot be denied solely due to the lack of objective evidence of instability. English v. Wilkie, 30 Vet. App. 347 (2018). Therefore, the Veteran's competent and credible subjective statements, coupled with the objective evidence of his use of knee braces for stability, convince the Board that the Veteran's disability more nearly approximates slight instability. Thus, the Board finds that the assignment of a separate 10 percent rating for slight left knee instability is warranted from September 9, 2015, and from May 21, 2020, for the right knee the dates the Veteran's instability for each knee is factually ascertainable. In this regard, the evidence shows that the Veteran sought treatment on September 9, 2015, complaining of his left knee giving way, and has complained of instability of his left knee consistently from that time. See e.g. June 2018 and May 2020 VA Treatment Notes. With regard to the right knee, the evidence shows the Veteran sought treatment on May 21, 2020, complaining of both knees giving way and has complained of instability, bilaterally, consistently from that time. See e.g. May and October 2020 VA Treatment Notes. As such, and giving the Veteran the benefit of the doubt, the Board assigns a separate 10 percent rating for left knee patellofemoral syndrome based on instability from September 9, 2015 and for right knee patellofemoral syndrome base on instability from May 21, 2020. However, the Board finds that a higher rating for his right and left knee instability is not warranted during any point in the appeal period. In this regard, joint stability tests for the right and left knee have been normal while a history of knee instability/subluxation are not recorded in the VA examinations of record. Given that these tests performed are generally recognized in the medical community as diagnostic for instability and subluxation, the results are afforded high probative value. As such, for the purposes of determining the severity of his right and left knee instability, the Board finds that the normal joint stability tests and lack of objective evidence weighs in favor of a rating for "slight" rather than "moderate" or "severe" instability. Accordingly, the Veteran is entitled to a separate rating of 10 percent, but no higher, for left knee instability from September 9, 2015, and a separate 10 percent rating, but no higher, for right knee instability from May 21, 2020. Service Connection In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in-service disease or injury. Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. A disability which is proximately due to or the result of a service-connected disease shall be service connected. 38 C.F.R. § 3.310 (a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability has aggravated a nonservice-connected disability. 38 C.F.R. § 3.310 (b). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104 (a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. 3. Entitlement to service connection for tinnitus. The Veteran generally asserts that his tinnitus is a result of noise exposure during service. Medical evidence of record establishes that the Veteran has reported intermittent tinnitus. As tinnitus is "subjective" and cannot be tested, its existence is generally determined by whether the veteran claims to experience it. For VA purposes, tinnitus diagnosis is determined to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). As such, the Board concedes that the Veteran has a current diagnosis in order to satisfy the first element of service connection. As to an in-service event, the Veteran's service treatment records (STRs) are silent as to any complaints or treatment for tinnitus. However, the Veteran is competent to report the event that occurred during service, to include in-service noise exposure. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Moreover, the VA examiners conceded "the veteran's MOS as Wheeled Vehicle Repairer placed him at high risk for exposure to hazardous noise levels.". Based on this information, the Board acknowledges that the Veteran was exposed to loud noise in service. Private treatment records directly relate the Veteran's tinnitus to his service-connected sinusitis. See May 2016 Private Treatment records. Accordingly, the Board finds that the evidence is in equipoise as to whether the Veteran's tinnitus is related to service. Specifically, while the VA medical opinions of record found the Veteran's tinnitus to be related to his hearing loss, there were no opinions on whether the Veteran's tinnitus was related to service on a direct basis, nor were there opinions on secondary service connection for additional service-connected disabilities, such as the Veteran's sinusitis. Therefore, after resolving all reasonable doubt in favor of the Veteran, service connection for tinnitus is granted. See 38 C.F.R. § 5107. 4. Entitlement to service connection for right ear hearing loss. The Veteran asserts generally that his right ear hearing loss is due to service. The Veteran has current right ear hearing loss for VA disability purposes. See November 2020 VA Examination. The first element of service connection has been met. The Board concedes that the Veteran had in-service noise exposure as a Wheeled Vehicle Repairer which placed him at high risk for exposure to hazardous noise. See June 2021 VA examination; see also April 2021 Board Decision. Thus, the second element of service connection has been met. The remaining inquiry is whether the Veteran's hearing loss is due to service. Based on the evidence, the Board finds the criteria for service connection for right ear hearing loss have not been met. 38 C.F.R. §3.303. The Veteran underwent three VA examinations to determine whether his hearing loss was due to service. The September 2014 examination did not reveal hearing loss disability for VA purposes. Despite that finding, the examiner found that the Veteran's in-service evaluations were consistent with normal hearing in the right ear and found no complaints of hearing loss in service and also discussed normal aging as a factor related to hearing loss. He concluded hearing loss was less likely than not due to service. The October 2020 examiner opined that right ear hearing loss was less likely than not caused by service. The examiner noted that the Veteran had normal hearing on service audiograms, there were no complaints or treatment for hearing loss during service or shortly after, and the first complaint or evidence of hearing loss was found in the record in 2014, 19 years after separation. The examiner explained that medical and scientific data does not support late onset hearing loss, long after exposure to loud noise. He noted the Veteran's age at onset (48) and explained that age-related hearing loss has a gradual onset as a person grows older, is one of the most common conditions affecting older adults, and most often occurs equally in both ears. In April 2021, the Board remanded the claim for right ear hearing loss because it found the previous examinations inadequate as they failed to consider the Veteran's complaint of right ear hearing loss in August 1989. The June 2021 examiner discussed the Veteran's in-service complaint of right ear hearing loss but found that after examination, the Veteran was observed to have earwax blockage and was resolved with ear irrigation. The examiner found that the Veteran's right ear hearing loss was less likely than not due to service opining that "there is no medical or scientific data that can support late onset hearing loss, long after separation from loud noises". The Board finds the combined opinions of the examiners highly probative as it considered the relevant evidence of record, sourced medical literature, and provided rationale with an alternate cause for the Veteran's hearing loss. The Veteran has not reported having hearing loss continuously since service, and there is no medical opinion attributing the Veteran's hearing loss to his service. Therefore, the Board finds the weight of the evidence is against finding current right ear hearing loss is related to service. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent prior to January 15, 2021, and in excess of 40 percent thereafter for right knee patellofemoral syndrome is remanded. 2. Entitlement to a rating in excess of 10 percent prior to January 15, 2021, and in excess of 30 percent thereafter for left knee patellofemoral syndrome is remanded. The Veteran has asserted that he is entitled to higher ratings for his bilateral knee disabilities as his symptoms are worse than those contemplated by the currently assigned ratings. The Veteran was afforded a January 2021 VA examination to address flareups in accordance with Sharp v. Shulkin, 29Vet. App. 26, 34 (2017) and limitation of motion in "active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint" in accordance with 38 C.F.R. §4.59. See Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). The April 2021 Board remand found the January 2021 VA examination to be inadequate as it failed to consider statements by the Veteran, or to address functional loss in accordance with Sharp, or to adequately address how pain with weight bearing could affect the Veteran's knee motion in accordance with Correia. With respect to conducting a rating examination relative to joint dysfunction, the Court of Appeals for Veterans Claims (Court) held in 2016 after the most recent examination was conducted that a VA examination of the joints must, wherever possible, include the results of the ROM testing described in the final sentence of § 4.59 which are tests as to pain on active and passive motion, including weight-bearing and non-weight-bearing and, if possible, with range of the opposite undamaged joint. Correia 28 Vet. App. 158, 168-70. The August 2021 examination only addressed the right knee, and did not provide any measurements for the left knee. Although the left knee is technically "damaged", as it is also service-connected, range of motion measurements, and other findings for that knee are still relevant in this appeal and should have been obtained. The matter is REMANDED for the following actions: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. The most recent VA treatment records date to May 2021. 2. Schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the current level of severity of all impairment resulting from his service-connected bilateral knee disabilities. The claims file must be made available to, and reviewed by the examiner. All indicated tests and studies must be performed. The examiner must provide all information required for rating purposes. In so doing, the examiner should test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner should also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. 3. All opinions provided should be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate) MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, 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.