Citation Nr: 21073040 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 12-28 742 DATE: December 7, 2021 ORDER An initial 10 percent rating for left knee tendonitis prior to March 21, 2018, is granted. An initial rating higher than 10 percent for left knee tendonitis from March 21, 2018, is denied. A separate 10 percent initial rating for left knee instability is granted. A compensable rating for bilateral hearing loss is denied. REMANDED Service connection for a left hand disability is remanded. FINDINGS OF FACT 1. Prior to March 21, 2018, the Veteran's left knee tendonitis was manifested by pain. 2. From March 21, 2018, the Veteran's left knee tendonitis was manifested by full extension and at least 120 degrees of flexion. 3. From August 11, 2015, the Veteran had mild left knee instability. 4. The Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level II in the right ear and no worse than Level II in the left ear. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating for left knee tendonitis prior to March 21, 2018, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for an initial rating higher than 10 percent from March 21, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5260. 3. From August 11, 2105, the criteria for a separate 10 percent rating for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257. 4. The criteria for an initial compensable rating 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, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from March 1987 to September 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in January 2021. The matter was then remanded for additional development in May 2021. Increased Ratings Left knee tendonitis The Veteran's left knee tendonitis is rated under 38 C.F.R. § 4.71a, DC 5260. Prior to March 21, 2018, he is assigned a 0 percent rating. From that date, he is assigned a 10 percent rating. Under DC 5260, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. DC 5261 addresses limitation of extension. A 10 percent rating is assigned when extension is limited to 10 degrees. A 20 percent rating is assigned for extension limited to 15 degrees. Prior to March 21, 2018, the Board finds that a 10 percent rating is warranted. During an April 2008 VA examination, the Veteran reported having sharp pain in his knee, and the examiner noted the presence of tenderness. VA treatment records from 2012 onward show ongoing complaints of knee pain, including treatment with injections. The painful motion of the Veteran's service-connected left knee has been clearly documented prior to March 21, 2018 and warrants a 10 percent rating. See 38 C.F.R. § 4.59 (noting the intent of the schedule is to recognize painful motion with joint pathology as productive of disability and entitled to at least the minimum compensable rating for the joint). A higher 20 percent rating is not warranted at any time during the period on appeal. The Veteran underwent numerous VA examinations which all documented full left knee extension and at least 120 degrees of left knee flexion, even when accounting for repetitive testing repetitive use over time. VA treatment records, including records from September 2021, documented similar findings. Therefore, there is no basis upon which a higher 20 percent rating can be granted based on limitation of motion. The Board has also considered whether separate ratings are warranted for other symptoms associated with the left knee disability. As discussed below, the Board has concluded that a separate rating is warranted for instability. Otherwise, the record does not show any ankylosis (DC 5256), meniscus condition (DCs 5258, 5259), tibia or fibula impairment (DC 5262), or genu recurvatum (DC 5263). Left knee instability DC 5257 addresses recurrent subluxation or lateral instability. Previously, a 10 percent rating is assigned for "slight" impairment, a 20 percent rating for "moderate" impairment, and a 30 percent rating for "severe" impairment. Descriptive terms such as "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Under those criteria, the Board finds that a 10 separate 10 percent rating is warranted from August 11, 2015. During a VA examination conducted on that date, the Veteran reported experiencing instability of the knee. Although the examiner stated that the Veteran was reporting instability secondary to pain, as opposed to "true instability," the Veteran again reported a "buckling" sensation in March 2018. During his January 2021 hearing, he reported that his knee gives out and that he was issue a knee brace. VA treatment records from August 2021 noted that the Veteran should continue to use a knee brace for instability. Therefore, mild instability has been established. However, "moderate" instability has not been shown as the Veteran did not report any falls or other manifestations which might indicate a more severe form of instability. In addition, multiple VA examinations showed normal knee stability on objective testing. Notably, objective medical evidence is not required to establish lateral knee instability under DC 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this DC. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Nevertheless, when viewing the objective and subjective evidence collectively, the Board finds that moderate instability has not been established. Effective February 7, 2021, the rating criteria for DC 5257 were amended. The new criteria provide for a higher 20 percent rating when there is a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription for a brace, cane, or walker. A 20 percent rating can also be assigned based on a ligament tear. In this case, the Veteran has not had surgical repair for his knee and has not been diagnosed with a torn ligament. Therefore, these new criteria are not applicable to his case. Bilateral hearing loss The Veteran is currently assigned a 0 percent rating for bilateral hearing loss under 38 C.F.R. § 4.85, DC 6100. Evaluations of defective hearing range from 0 percent (noncompensable) to 100 percent based on impairment of hearing acuity as measured by 1) a Maryland CNC speech discrimination test, and 2) the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from bilateral service-connected hearing loss, the rating schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. These levels are in 38 C.F.R. § 4.85, Tables VI and VII. The Veteran underwent a VA examination in April 2008. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 10 35 50 45 35 LEFT 10 20 50 45 31 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear. Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Under Table VII, this results in a 0 percent rating. An additional VA examination was conducted in August 2015. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 65 55 60 53 LEFT 25 40 55 55 44 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear. Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Under Table VII, this results in a 0 percent rating. The Veteran underwent another VA examination in April 2018. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 65 65 55 54 LEFT 20 30 55 60 41 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 88 percent in the left ear. Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear. Under Table VII, this results in a 0 percent rating. Finally, the most recent VA examination was in September 2021. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 60 60 60 53 LEFT 25 45 55 50 44 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 100 percent in the left ear. Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear. Under Table VII, this results in a 0 percent rating. Based on the above objective testing, the criteria for a compensable rating for bilateral hearing loss have not been met. In making this determination, the Board has considered the Veteran's statements regarding his hearing loss, including how he struggled with telephone conversations, had difficulty hearing the television, and had to ask others to repeat themselves and look him in the face when speaking. However, the rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. Therefore, the functional impact that the Veteran describes is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). REASONS FOR REMAND Service connection for a left hand disability The Board previously remanded this issue for an opinion as to whether the Veteran had a current left hand disability related to either a left middle finger cold injury in service, or a left hamate chip fracture in service. In a September 2021 opinion, a VA examiner diagnosed left ulnar nerve neuropathy which was less likely than not related to the cold injury in service. The examiner explained that the in-service cold injury was for the middle finger, but there were no symptoms or abnormal findings for the middle finger at present. The examiner also stated that the current condition was not related to the chip fracture in service. However, no rationale or explanation was provided for that conclusion. Therefore, corrective action is required. The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's left ulnar nerve neuropathy and/or left carpal tunnel syndrome is at least as likely as not related to a left hamate chip fracture during service in August 1988. A complete explanation for the opinion must be provided. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shamil Patel, 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.