Citation Nr: 21077312 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 13-34 311 DATE: December 29, 2021 ORDER Entitlement to service connection for bilateral hearing loss (BHL) is granted. Entitlement to a disability evaluation of 20 percent for a right knee disability prior to January 18, 2011 is granted. Entitlement to a disability evaluation of 60 percent for a right knee disability from March 1, 2012 is granted. REMANDED Entitlement to a total disability evaluation due to individual unemployability prior to March 1, 2012 is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as whether the Veteran's current bilateral hearing loss is etiologically related to in-service acoustic trauma. 2. Prior to January 18, 2011, the Veteran's right knee disability was manifested by limitation of flexion to 35 degrees, with pain on motion, and additional lost range of motion during flareups or with repetitive use over time. 3. From March 1, 2012, the Veteran's right knee disability status-post total kene replacement (TKR) has been manifested by chronic residuals consisting of severe painful motion or weakness. 4. From January 18, 2011 to March 1, 2012, the Veteran was awarded a total rating for his right knee disability based on his total knee replacement. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.385. 2. Prior to January 18, 2011, the criteria for entitlement to a 20 percent evaluation for a right knee disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, Diagnostic Code (DC) 5260. 3. From March 1, 2012, the criteria for entitlement to a 60 percent evaluation for a right knee disability have been met. 8 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, DC 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1972 to September 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The case was most recently before the Board in January 2021, at which time it was remanded for development. It returns now 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. Entitlement to service connection for BHL 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). For the purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. Thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran has current bilateral hearing loss, confirmed by testing at several VA audiological examinations during the appeal period. He contends that his hearing loss was caused by in-service acoustic trauma. The Veteran's MOS of Machinist Mate carries a high probability of hazardous noise exposure, and nothing in the record contradicts the Veteran's account of in-service hazardous noise. Accordingly, the Board concedes in-service acoustic trauma in the Veteran's case. Thus, it remains only to determine whether the Veteran's current hearing loss is etiologically related to the in-service hazardous noise. The evidence in this case is at least in equipoise on the question. Critically, the record is bare of evidence of a more convincing alternative provenance of bilateral hearing loss, such as post-service occupational or recreational noise exposure. Although VA examiners in this case, including those with whom the Veteran met in November 2009, April 2018, and April 2021, have concluded the Veteran's demonstrated current hearing loss was unrelated to service, reasoning that service records failed to show objective changes to the Veteran's hearing in service, the Board finds at least as probative the Veteran's credible and consistent description of his in-service experience and the pattern of hearing loss since separation. As noted, that account is supported by the nature of the Veteran's service, and the Board does not find in the record a more likely post-service cause for the Veteran's current hearing loss. Thus, based on the Veteran's credible lay statements and the conceded in-service noise exposure, the Board finds in favor of the claim for service connection for bilateral ear hearing loss, and the appeal is granted. 2. Entitlement to a disability evaluation in excess of 10 percent for a right knee disability prior to January 18, 2011, and in excess of 30 percent from March 1, 2012. 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. When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, with respect to musculoskeletal disabilities, the law recognizes that "[p]ainful motion is an important factor of disability, and it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint." See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). As noted above, the Veteran was in receipt of a total rating for his right knee for the period from January 18, 2011 to March 1, 2012, as this is the highest rating available, there is no case or controversy regarding the assigned rating for this period and the Board will not consider this period in evaluating the Veteran's right knee condition. Prior to January 18, 2011, the Veteran's right knee disability has been evaluated under DC 5260, which deals with limitation of knee flexion. Under DC 5260, flexion of the leg limited to 60 degrees warrants a 0 percent rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, extension limited to 5 degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. Separate ratings are available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. Other DCs dealing with the knee joint include DC 5256, 5257, 5258, 5259, 5262, and 5263. DC 5256 requires a showing of ankylosis of the knee joint, which showing is absent in this case, and thus this DC need not be addressed further. DC 5257 deals with recurrent subluxation which is not shown in this case. DCs 5258 and 5259 concern disability of the meniscus, which is likewise absent in this case. DC 5262 requires a showing of nonunion or malunion of the tibia and fibula, evidence of which is absent in this case. Finally, DC 5263 concerns Genu Recurvatum, which is also absent. The only VA examination of record from the earlier portion of the appeal period, conducted in September 2010, shows right knee flexion limited to 35 degrees, with full extension, and pain on motion. The Veteran also demonstrated fatigue, weakness, and lack of endurance on testing, and complained of daily flareups of his knee symptoms. Nevertheless, the examiner did not opine on additional limitation during these flareups, or with repetitive use of the joint over time. Based on the Veteran's credible assertions, and the lack of controverting evidence in the record, the Board finds that the Veteran's right knee range of motion during flareups or with repetitive use over time would be manifested by at least an additional 5 degrees of lost range of motion, and accordingly, finds warranted entitlement to a 20 percent evaluation based on flexion limited to 30 degrees. There is no basis for a higher evaluation, however, as the record is altogether bare of evidence of loss of range of motion approaching the 15 degrees required for a 30 percent evaluation, and the Veteran did not demonstrate any loss of right knee extension. Following the Veteran's TKR, he is in receipt of a total evaluation for a period not herein on appeal, and of a 30 percent evaluation from March 1, 2012. He appeals for a higher rating. The Veteran's right knee disability status post TKR is evaluated under DC 5055. DC 5055 allows for a minimum 30 percent evaluation following total knee replacement; and a 60 percent evaluation for chronic residuals consisting of severe painful motion or weakness in the affected extremity. For intermediate degrees of residual weakness, pain, or limitation of motion, DC 5055 directs the adjudicator to rate the disability by analogy to DCs 5256, 5261, or 5262. The Veteran underwent a VA knee examination in July 2013, where he demonstrated knee flexion to 95 degrees along with full extension, but showed disturbed locomotion and interference with sitting, standing, and weight bearing, the examiner commenting, "[t]he pain from this condition makes it difficult for the Veteran to perform physical activity when the joint is used repetitively over time." At an April 2018 VA examination, the Veteran showed substantially reduced right knee range of motion, with flexion to 35 degrees and extension limited to 20 degrees, with pain on testing. The examiner indicated the Veteran stated he was "in pain [and] unable to move max flexion and extension...I am unable to assess based on his volitional effort and his limits of pain." The examiner also noted the Veteran required constant use of a cane and brace. March 2018 VA treatment records reveal moderate right knee swelling. An April 2021 VA examiner noted range of motion testing showing flexion to 100 degrees and full extension, with pain on testing, and concluded the Veteran was beset by chronic residuals of TKR consisting of severe painful motion or weakness. The examiner confirmed the Veteran's constant use of a cane for ambulation. Finally, an October 2021 VA examiner offered only that the Veteran's condition was manifested by moderate-to-severe daily pain and "popping" in the right knee, causing the Veteran to be unable to walk, sit, or stand for prolonged periods. A review of the totality of the evidence from March 1, 2012 reflects significant and constant right knee symptoms impacting the Veteran's functional capabilities, including his ability to remain in a given position for a prolonged period, and limiting substantially his mobility. Thus, the Board finds that severe chronic residuals of total knee replacement have been present from March 1, 2012, and thus entitlement to a 60 percent evaluation under DC 5055 is warranted from that date. There is no basis in the record for a higher evaluation under DC 5055. As explained above, excepting a one-year period of a total disability rating following prosthetic replacement of the knee joint (which period of temporary total disability has already been awarded in this case,) a 60 percent evaluation is the highest available for chronic residuals of total knee replacement. That evaluation having been assigned from the earliest available date (the date following expiry of the temporary total evaluation,) the Board finds no basis for assigning a rating in excess of 60 percent for any portion of the period on appeal. REASONS FOR REMAND 1. Entitlement to a TDIU prior to March 1, 2012 is remanded. The instant decision grants service connection for bilateral hearing loss, the appeal period for which overlaps that associated with the Veteran's TDIU claim. The TDIU claim must be remanded in order to permit the RO to assign a disability rating in the first instance for BHL, the assignment of which has direct bearing on the TDIU claim. The matters are REMANDED for the following action: 1. Following assignment of a disability evaluation for bilateral hearing loss, readjudicate the Veteran's claim for entitlement to at TDIU prior to March 1, 2012. 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.