Citation Nr: 21074361 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-33 967 DATE: December 15, 2021 ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran's right knee disability did not manifest in-service and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 2. During the period on appeal, the Veteran's bilateral hearing loss disability manifested no worse than level I hearing loss in the right ear, and no worse than level I hearing loss in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.10, 4.85, 4.86 DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from October 1981 to September 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). On his June 2017 Form 9, the Veteran requested a Board hearing at a local VA office. That hearing was scheduled for September 14, 2021. However, the Veteran did not appear and has not expressed a desire to reschedule. Consequently, the Board will proceed to issue a decision on this appeal. 1. Entitlement to service connection for a right knee disability is denied. Generally, to establish service connection 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). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Certain diseases, to include arthritis may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309 (2018). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). A review of the service treatment records (STRs) reveals that the Veteran was examined during service in January 1990, January 1991, February 1992, January 1994, January 1995, January 1996, January 1997, and for separation in July 1998. In each of those examinations during service, the Veteran's lower extremities, to include his right knee, were noted as normal by the examining physician. See December 2014 STR Medical. Also, in each of those examinations, the Veteran was given an opportunity to document any medical complications he experienced, and he marked no for arthritis, muscle pain, and painful joints. See id. In a March 2012 statement, the Veteran asserted that he first noticed pain in his left knee when he tripped and fell in 1990 while deployed in Afghanistan. He stated that a few years after experiencing left knee pain, he began experiencing right knee pain as well. He also stated that right knee pain has continued since and has resulted in right knee fatigue, stiffness, and limited motion. See March 2012 Correspondence. In a March 2012 private examination report, the examiner concluded that the Veteran suffered from right knee pain caused by injury due to high impact incident and that his condition was moderate which was exacerbated by his employment. The private examiner opined that it was more likely than not that the right knee disability was related to his military service. The Veteran was afforded a VA examination in June 2013 in which the examiner did not provide a diagnosis for the Veteran's right knee. The examiner concluded that the Veteran did not have a current right knee disability. The Veteran was later afforded a VA examination in March 2017 in which the examiner again did not provide a diagnosis for the Veteran's right knee. The Board notes that it is unclear whether the Veteran has a current right knee disability. While the June 2013 and March 2017 VA examiners noted that the Veteran did not have a right knee disability, their examinations did document pain and limited motion. Additionally, the March 2012 private examiner noted that the Veteran's right knee pain resulted in a moderate disability that was exacerbated by his employment. The Board acknowledges the Court of Appeals for the Federal Circuit found that pain alone can constitute a "disability" under 38 U.S.C. § 1131, because pain can cause functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Board notes that none of the opinions of records discuss whether the Veteran's right knee pain results in pain that can cause functional impairment. However, the Board notes that this case does not turn on whether the Veteran has a current disability as the other two requirements of service connection are not met. Concerning the second element of service connection, the STRs are silent for any chronic right knee pain or injury. As noted above, the Veteran was examined annually until his separation in July 1998 and at no point did an examiner document a right knee problem or the Veteran complain of right knee pain. Regarding whether the Veteran's right knee disability is related to service, the Board affords no probative value to the March 2012 private examiner who opined that it was more likely than not that the Veteran's right knee disability was related to service. The private examiner did not provide any reasoning for reaching that opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (holding most of the probative value of a medical opinion comes from its reasoning). The Board finds that the Veteran's history of right knee pain since service is outweighed by the objective evidence of record considering the lack of any post service identification until 2012 as well as the available service treatment records which indicate normal findings. Therefore, to the extent that the Veteran contends that his right knee disability manifested during service, this lay evidence is at odds with the remainder of the record, which reflects normal findings during service. As such, the Veteran's statements are lacking probative value. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). To the extent that the Veteran asserts that his right knee disability is related to service, the Board finds that his statements regarding this disability being incurred in service is not credible given the objective evidence of record to include the service treatment records and the post-service medical records. For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for right knee pain. The claim is denied. 2. Entitlement to an initial compensable rating for bilateral hearing loss is denied. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran filed a service connection claim for bilateral hearing loss in March 2012. That claim was granted in an August 2013 rating decision and assigned a noncompensable evaluation. The Veteran has appealed the initial rating. The criteria for rating hearing impairment requires consideration of the results of examinations using controlled speech discrimination tests (Maryland CNC) with the results of pure tone audiometry tests. The results are charted on Table VI and Table VII, as set forth in the Rating Schedule. To establish entitlement to a higher rating for hearing loss it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. 38 C.F.R. § 4.85. Hearing tests will be conducted without hearing aids. The regulations set forth eleven auditory acuity levels, designated from Roman numerals I to XI, in escalating order of hearing impairment. 38 C.F.R. § 4.85. The appropriate auditory acuity level is determined based on a combination of the percentage of speech discrimination and the pure tone threshold average. Additional considerations apply when exceptional patterns of hearing loss are demonstrated, which are defined as either a) pure tone averages of 55 or greater at 1000, 2000, 3000, and 4000 Hertz, or; b) a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 (a). Once an acuity level is established for each ear, Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the appropriate disability evaluation. The appropriate rating is determined based on a combination of the levels of hearing impairment established for each ear. The evidence of record includes a February 2017 VA hearing loss examination. The examiner noted the following audiometric testing results: Hertz 1,000 2,000 3,000 4,000 Right ear 10 35 55 60 Left ear 15 30 55 70 Speech discrimination scores were 94 percent for the right ear and 96 percent for the left ear. These findings correlate to a designation of level I for the right ear, and level I for the left ear. Those results correspond to a non-compensable rating under DC 6100. Therefore, according to the valid audiometric examination conducted during the period on appeal, the Board finds that an initial compensable rating is not warranted. The Board emphasizes that disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Therefore, at any time during the period on appeal, the currently assigned non-compensable evaluation accurately reflects the Veteran's disability picture as contemplated under the VA rating criteria. To the extent he may argue or suggest that the clinical data supports an increased disability rating or that the rating criteria should not be employed, he is not competent to make that assertion. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As indicated, the rating of hearing loss disabilities requires the administration of audiometric testing that is administered and interpreted by a professional. Consequently, the preponderance of the evidence is against any increased rating during the period on appeal. The claim is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). G. Jackson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hammad Rasul, 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.