Citation Nr: 21069688 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 15-04 203 DATE: November 19, 2021 ORDER Service connection for bilateral hearing loss is granted. REMANDED A rating for postoperative (PO) residuals of right anterior cruciate ligament (ACL) repair with arthritis greater than 10 percent from February 25, 2010, to August 9, 2012, and since November 1, 2012, is remanded. A rating in excess of 10 percent for right knee instability is remanded. A rating for arthritis of the left knee from February 25, 2010, to April 27, 2011, and a rating in excess of 10 percent thereafter is remanded. A rating in excess of 10 percent for left knee instability is remanded. FINDING OF FACT The Veteran has a current bilateral hearing loss disability for VA compensation purposes that is consistent with his in-service noise exposure. CONCLUSION OF LAW Resolving doubt in the Veteran's favor, the criteria for service connection for a bilateral hearing loss disability are met. 38 U.S.C. § § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION Insert dates of service and jurisdictional information only where relevant to the adjudication of the issues on appeal. 1. Service connection for bilateral hearing loss Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: "(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 or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. The Veteran contends he was exposed to high levels of noise during active-duty service. The Veteran maintains that he has difficulty hearing and often needs others to repeat themselves while talking to him. In December 2013, the Veteran underwent a VA examination in connection with his claim for service connection for bilateral hearing loss. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 20 30 35 LEFT 20 20 15 30 25 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 in the left ear. The hearing thresholds did not meet the VA criteria for disability in either ear. However, the VA examiner noted the Veteran's audiogram in February 1994 showed normal hearing in both ears from 500-6000 Hz. Hearing conservation testing done in August 1995 showed a shift in hearing in both ears with mild loss in the right ear at 6000 Hz and a moderate loss at 6000 Hz in the left ear. The examiner noted that this was the frequency often associated with military noise exposure. Therefore, she opined it was at least as likely as not that the claimed hearing loss was related to military service, to include military noise exposure. The Veteran was most recently afforded a VA examination for his hearing loss in December 2019. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 35 40 LEFT 25 25 25 45 50 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 84 in the left ear. Pursuant to 38 C.F.R. § 3.385, the Veteran's bilateral hearing loss meets the criteria to qualify as a disability for VA purposes. The Veteran had in-service noise exposure and a threshold shift in service at the frequency often associated with military noise exposure. He has hearing loss that meets the criteria to qualify as a disability for VA purposes. Finally, the December 2013 VA examiner opined that the Veteran's hearing loss is at least as likely as not the result of service due to the threshold shift at the frequency often associated with military noise exposure. The Board will therefore resolve reasonable doubt in favor of the Veteran and grant the claim of entitlement to service connection for bilateral hearing loss. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence'..., the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding... benefits.") REASONS FOR REMAND 1. A rating for postoperative (PO) residuals of right anterior cruciate ligament (ACL) repair with arthritis greater than 10 percent from February 25, 2010, to August 9, 2012, and since November 1, 2012, is remanded. 2. A rating in excess of 10 percent for right knee instability is remanded. 3. A rating for arthritis of the left knee from February 25, 2010, to April 27, 2011, and a rating in excess of 10 percent thereafter is remanded. 4. A rating in excess of 10 percent for left knee instability is remanded. In October 2021, the Veteran's representative argued that the Veteran filed a claim in October 2020, following the most recent supplemental statement of the case (SSOC) in August 2020, and that the knee examination that resulted from the new claim was inextricably intertwined with the instant appeal and was not afforded to the previous examiners whose examinations were the basis of the unfavorable August 2020 SSOC. Therefore, the Veteran's representative argues that the prior examinations cannot be considered based on the evidence of record as it changed after the examinations were conducted. Further, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the Evaluation of musculoskeletal disabilities." Id. Importantly, diagnostic code 5257, pertaining to instability, was amended. In relevant part, Diagnostic Code 5257 now requires a Veteran be prescribed the use of assistive devices in order to receive a rating in excess of 10 percent. In the instant case, the VA examinations of record show use of assistive devices, but there is no indication whether they were prescribed by a medical provider. This must be clarified by an appropriate clinician. As the record does not contain sufficient evidence to rate the Veteran's bilateral knee disabilities under the new rating criteria, a new examination is warranted. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Schedule the Veteran for a VA examination, to ascertain and evaluate the current level of severity of her service-connected bilateral knee disabilities. All indicated studies and tests should be performed. The claims folder should be made available to the examiner for review of pertinent documents. The examination reports should reflect that such a review was conducted. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the new rating criteria. Specifically, the examiner must test the Veteran's active motion, passive motion, ranges of motion of the opposing joint, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should provide all information required for rating purposes, under both the former and revised rating criteria under Diagnostic Code 5257 for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). In so doing, the examiner must also note whether the Veteran has been prescribed an assistive device by a medical provider. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gastoukian, Kelly 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.