Citation Nr: 21077219 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 16-31 536 DATE: December 29, 2021 ORDER Entitlement to service connection for a left knee condition is denied. Entitlement to a compensable evaluation for bilateral hearing loss is denied. FINDINGS OF FACT 1. The most probative evidence of record indicates the Veteran's current left knee condition is unrelated to any in-service injury or event. 2. Audiological testing shows no worse than Level III hearing loss in either ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee condition have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July to September 1987, and from October 1988 to October 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in July 2019. The transcript is of record. These matters were previously before the Board in November 2019, at which time they were remanded for development. They return to the Board for appellate review. The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Service connection for a left knee condition Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 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 (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 247, 431 (2006). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system (which includes sensorineural hearing loss and tinnitus), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has a current diagnosis of left knee arthritis, and has credibly reported left knee symptoms including pain during the current appeal period. Accordingly, the current diagnosis requirement is met. Service records reflect complaints of left knee pain for which the Veteran sought treatment and received a diagnosis of retropatella pain syndrome. The Veteran's symptoms appear to have resolved, and the record does not reflect objective evidence of ongoing symptoms related to the in-service pain complaints. A VA examiner with whom the Veteran met in June 2013 indicated that the Veteran did not have a current left knee diagnosis, and that the Veteran's knee complaints in service resolved without apparent sequalae. A February 2020 VA examiner explained that the Veteran's symptoms "are primarily subjective," and that "the only objective finding was mild tenderness to palpation, [with] no evidence of a chronic condition," Nevertheless, that examiner conceded the likelihood of arthritic pain in the left knee, explaining that the in-service patellofemoral pain "has not caused any sequelae, and her current reported pain is due to the arthritic change, not to the [in-service] issue." The Board notes that no treating or examining provider has opined that any current knee condition, including arthritis, bears any etiological relationship to any aspect of service, including the Veteran's in-service knee complaints. Moreover, the February 2020 VA examiner's assessment is based on an in-person examination and thorough review of the record, is fully explained, is in general accord with the objective evidence of record, and is uncontroverted in the record. Accordingly, the Board affords it great probative weight with respect to etiology in this matter. While the Board has considered with sympathy the Veteran's lay statements, it cannot afford probative weight to her assertions with respect to the etiology of her knee condition in this case. While she is competent to report her experiences and symptoms since service, the Veteran is not competent to provide a nexus opinion regarding the nature and etiology of her condition. Jandreau v. Nicholson, 492 F. 3d 1372 (2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Veteran's reports of her symptoms are relevant, competent, and credible; however, the question of the etiology of the Veteran's left knee condition is limited to the purview of someone with medical knowledge and training, such as the VA medical examiner in this case. In sum, the evidence does not show that it is at least as likely as not that the Veteran's left knee arthritis is related to active service. The probative value of the Veteran's assertions is outweighed by the probative value of the thorough and reasoned opinion of the VA medical expert. As the preponderance of the evidence is against the claim, service connection for a left knee disorder must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Compensable evaluation for bilateral hearing loss Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Ratings for service-connected hearing loss range from noncompensable (0 percent) to 100 percent. These ratings are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Diagnostic Code 6100 provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. The hearing impairment is established by a state licensed audiologist including a controlled speech discrimination and the pure tone threshold average, which is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Under 38 C.F.R. § 4.86 (a) (exceptional patterns of hearing impairment), when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) 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 is to be evaluated separately. The provisions of 38 C.F.R. § 4.86 (b) provide that when the pure tone threshold is 30 decibels or less at 1000 Hz, 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 evaluated to the next higher Roman numeral. The Veteran seeks an initial compensable evaluation for bilateral hearing loss. She underwent a VA audiological examination in August 2012, where pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 15 45 70 65 49 LEFT 15 20 60 65 39 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 92 percent in the left ear. During the examination, the Veteran reported difficulties following a conversation and understanding the TV. Based on the results of these tests, a Roman numeral II is designated for the right ear and a Roman numeral IV for the left ear from Table I of 38 C.F.R. § 4.85. Intersecting the numeric designations to the applicable row and column for the right and left ear, a noncompensable rating is derived from Table VII of 38 C.F.R. § 4.85. The Board notes that the Puretone thresholds from this examination did not fall within the exceptional patterns of hearing loss contemplated by 38 C.F.R. § 4.86. In addition, the examiner reported that the use of a speech discrimination score was appropriate for the Veteran. See 38 C.F.R. § 4.85(c). A second VA examination conducted in February 2020 showed pure tone thresholds, in decibels, of: ne thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 20 65 80 70 59 LEFT 25 65 75 75 60 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 84 percent in the left ear. Based on the results of these tests, a Roman numeral III is designated for the right ear and a Roman numeral III for the left ear from Table VI of 38 C.F.R. § 4.85. Intersecting the numeric designations to the applicable row and column for the right and left ear, a noncompensable rating is derived from Table VII of 38 C.F.R. § 4.85. Again, the Board notes that the puretone thresholds from this examination did not fall within the exceptional patterns of hearing loss contemplated by 38 C.F.R. § 4.86. In addition, the provider reported that the use of a speech discrimination score was appropriate for the Veteran. See 38 C.F.R. § 4.85(c). A review of this evidence shows a compensable evaluation is unwarranted for any portion of the appeal period based on the above-summarized results of audiological testing. Based on the foregoing, the claim for increase must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The regulations also provide that consideration of whether special monthly compensation (SMC) is warranted is required when evaluating any claim for impaired hearing. See 38 C.F.R. § § 4.85(g). Certain levels of SMC may be awarded for deafness. However, the SMC criteria require bilateral deafness or some other service-connected disability, such as blindness, which do not apply to the Veteran's case. 38 U.S.C. § 1114; 38 C.F.R. § § 3.350. Therefore, SMC is not warranted for the Veteran's bilateral hearing loss. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sahraie, 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.