Citation Nr: 21071697 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-23 689 DATE: December 1, 2021 ORDER An initial compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to a rating in excess of 10 percent for left knee strain with patellofemoral pain syndrome is remanded. Entitlement to a rating in excess of 10 percent for right knee strain with patellofemoral pain syndrome is remanded. FINDING OF FACT The competent and probative evidence shows at worst Level I hearing in the right ear and at worst Level III hearing in the left without an exceptional pattern of hearing loss in either ear. CONCLUSION OF LAW The criteria for an initial rating compensable for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.85-4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1978 to September 1982, and from October 2001 to October 2002. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified, sitting in San Antonio, Texas, before the undersigned via a videoconference hearing. A transcript of the hearing has been associated with the virtual file and reviewed. This case was previously before the Board in March 2021, at which time the Board remanded the matter for further development, as discussed below. The Board finds that the remand directives were not substantially complied with regarding the claims for increased ratings for bilateral knee disabilities and thus another remand is warranted. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). With regard to the issues at hand, as an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The Veteran is competent to report symptoms observable by sense and contemporaneous medical diagnoses, but not competent to diagnose or assess the etiology of complex medical disorders. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to a compensable rating for bilateral hearing loss. Disability ratings for hearing loss are assigned based on the results of controlled speech discrimination tests combined with the results of pure tone audiometry tests. See 38 C.F.R. §§ 4.85-4.86. An examination for VA rating purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test, specifically, the Maryland CNC test, and a pure tone audiometry test. 38 C.F.R. § 4.85(a). Further, disability ratings for hearing impairment are assigned through a structured formula, i.e., a mechanical application of the rating schedule to numeric designations that are assigned after audiometric evaluations have been rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). First, a Roman numeral designation of I through XI is assigned for the level of hearing impairment in each ear. Table VI is used to determine a Roman numeral designation based on a combination of the speech discrimination percentage and the average pure tone threshold, or the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. After a Roman numeral designation has been assigned for each ear, Table VII is used to determine the compensation rate by combining such designations for hearing impairment in both ears. 38 C.F.R. § 4.85. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the 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. 38 C.F.R. § 4.86(b). After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that Veteran is not entitled to an initial compensable disability rating for bilateral hearing loss. First, the Veteran does not have an exceptional pattern of hearing impairment, as defined by 38 C.F.R. § 4.86. Additionally, all applicable tests include valid pure tone and speech discrimination scores. As such, Table VI applies. See 38 C.F.R. §§ 4.85-4.86. In an April 2017 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 15 20 25 40 25 LEFT 20 50 85 75 57.5 Speech audiometry revealed speech recognition ability of 96 percent in the right ear, and 90 percent in the left ear. 04/06/2017, C&P Exam. During the January 2021 Board hearing, the Veteran testified that that he has been issued hearing aids since the April 2017 VA examination. Additionally, the Veteran indicated that his hearing has noticeably worsened in the last two years, wherein the Veteran is often unable to understand conversation with people in the same room. 01/26/2021, Hearing Transcript. Subsequently, in March 2021, the Board noted the Veteran's assertions regarding the severity of his hearing loss disability and that the Veteran had last been examined in April 2017. The Board remanded the claim for another VA examination to ascertain the current severity and manifestations of his hearing loss. 03/18/2021, BVA Decision. In an April 2021 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 30 35 45 60 42.5 LEFT 45 70 100 100 78.75 Speech audiometry revealed speech recognition ability of 100 percent in the right ear, and 94 percent in the left ear. The Veteran also reported difficulty in understanding conversation and that he asks people to repeat themselves. 04/22/2021, C&P Exam. Throughout the period on appeal, using the above reported findings, the Veteran's right ear pure tone average combines with the right ear speech discrimination to yield a Roman numeral I in Table VI, and his left ear pure tone average also combines with the left ear speech discrimination for a Roman numeral II, per Table VI (in 2017) for a Roman numeral III (in 2021). See 38 C.F.R. § 4.85. Roman numerals I and II/III combine for a zero, or non-compensable, rating in Table VII. The Board has considered the Veteran's contentions of the effects hearing loss had in his daily life and that his hearing loss is worse than the rating reflects. The Veteran is competent and credible to report any symptoms of hearing loss. See Jandreau, 492 F.3d at 1377. Nevertheless, VA's rating of hearing impairment is based on specific measurements that must be gathered by a state-licensed audiologist using specific tests, as discussed above. The Board finds that the competent medical evidence, to include the VA examination testing results, are more probative and outweigh the lay subjective reports of a more severe degree of disability, because they were provided by personnel with specialized training in hearing loss and directly address the rating criteria for the Veteran's hearing loss. Additionally, VA's Schedule for Rating Disabilities has been found to contemplate the problems reported by the Veteran in terms of his difficulty hearing others. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that "the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech"). Accordingly, the appeal for an initial higher rating for bilateral hearing loss is denied. The Board has considered the applicability of the benefit of the doubt doctrine, but the preponderance of the evidence is against an initial compensable disability. Under these circumstances, the doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 2. Entitlement to a rating in excess of 10 percent for left knee strain with patellofemoral pain syndrome is remanded. 3. Entitlement to a rating in excess of 10 percent for right knee strain with patellofemoral pain syndrome is remanded. A March 2021 Board decision remanded the claims for increased ratings for bilateral knee disabilities and directed the Agency of Original Jurisdiction (AOJ) to schedule the Veteran for an appropriate VA examination to assess the current severity of the Veteran's left and right knee disabilities. Specifically, the Board noted that the April 2017 VA examination indicated that pain could significantly limit functional ability during flare-ups or when the either knee is used repeatedly over a period of time, but the examiner could not state exactly what degree of additional range of motion loss would be due to pain without resort to speculation. The Board directed the VA examiner to describe the Veteran's flare-ups, to include the frequency, duration, precipitating factors, and alleviating factors. The examiner was further directed to describe functional impairment during flareups or after prolonged use in terms of degrees of additional loss of motion. 03/18/2021, BVA Decision. Additionally, during the January 2021 Board hearing, the Veteran testified that that he experiences frequent flare-ups at least 2-3 times per week and sometimes every day. The flare-ups manifest in severe pain, precluding the Veteran from squatting or bending his knees, and requiring the assistance of his spouse to put on his clothes. And, since the April 2017 VA examination, the Veteran has been issued knee braces and a walking cane. The Veteran also reported at 2021 hearing that he may be considered for a knee replacement. 01/26/2021, Hearing Transcript. Subsequently, an April 2021 VA examination described flare-ups of the Veteran's bilateral knee disabilities, wherein the Veteran is unable to stand or walk for long periods of time. The examiner then indicated that, based on the Veteran's lay statements, the Veteran does not experience flare-ups, but did not provide an explanation why the Veteran's episodes of immobility do not constitute flare-ups of his bilateral knee disabilities. Moreover, the examiner did not explicitly consider the Veteran's statements from the January 2021 Board hearing, wherein the Veteran stated that he experiences frequent flare-ups at least 2-3 times per week and sometimes every day. 05/04/2021, C&P Exam. The United States Court of Appeals for Veterans Claims (Court) specifically determined in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), that if a VA examination is not being conducted during a flare-up, the examiner should nevertheless provide an opinion derived from the information obtained during the evaluation as to the additional loss of range of motion that may be present during a flare-up. Additionally, if the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), and whether any member of the medical community at large could not provide such an opinion without resorting to speculation. Id. Here, the examiner appears to have stopped short from attempting to illicit the needed information, and remand is necessary to gather more relevant evidence to assist with rating the Veteran's knee disabilities. Specifically, the April 2021 examiner did not provide a clear explanation as to whether the Veteran experiences flare-ups, despite describing episodes of increased severity. As such, the Board finds that the remand directives were not substantially complied with and, therefore, another remand is warranted. Stegall, 11 Vet. App. at 271. Accordingly, the Board finds that an additional VA examination is warranted to assess the current severity of the Veteran's left and right knee disabilities. This matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. Additionally, request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. After completing directive # 1, schedule the Veteran for an appropriate VA examination to determine the severity of his left and right knee strain with patellofemoral pain syndrome. The examiner should review the virtual file, including a copy of this Remand. The examiner is to complete the examination report form and is requested to specifically address: (a.) Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare-ups of his service-connected knee disability, and how he or she characterizes the additional functional loss during a flare-up. **For example, please consider the Veteran's statements from the January 2021 Board hearing, wherein the Veteran stated that he experiences frequent flare-ups at least 2-3 times per week and sometimes every day. 05/04/2021, C&P Exam.** (b.) If the Veteran describes experiencing flare-ups, identify the: --frequency; --duration; --precipitating factors; and --alleviating factors. (c.) Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (approximately a 50 percent probability) that during a flare up range of motion is additionally limited to 30 degrees. Please explain why or why not. The extent, if any, of functional loss of use of the left and right knee due to pain, painful motion, weakness or premature fatigability, incoordination, limited or excess movement, etc., including at times when the Veteran's symptoms are most prevalent-such as during flare-ups or prolonged use. If possible, these findings should be portrayed in terms of degrees of additional loss of motion. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David Han 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.