Citation Nr: 21077505 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 19-27 219 DATE: December 30, 2021 ORDER The claim for a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) has been withdrawn. The claim for service connection for an eye disability has been withdrawn. Service connection for a traumatic brain injury (TBI) is denied. Service connection for bilateral hearing loss is denied. A rating in excess of 10 percent for degenerative joint disease, left hip, status post unipolar arthroplasty is denied. A compensable rating for degenerative joint disease, left hip, with limitation external rotation is denied. A compensable rating for degenerative joint disease, left hip, with limitation of flexion is denied. REMANDED Entitlement to service connection for breast cancer is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for bilateral plantar fasciitis is remanded. Entitlement to service connection for right trapazoidectomy is remanded. Entitlement to service connection for left trapazoidectomy is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. A rating in excess of 10 percent for degenerative joint disease, cervical spine, prior to March 26, 2019 is remanded. Entitlement to a rating in excess of 20 percent for degenerative joint disease, cervical spine, from March 26, 2019 is remanded. FINDINGS OF FACT 1. On May 7, 2021, prior to the promulgation of a decision in the appeal, the Veteran advised the Board of her desire to withdraw the appeal concerning entitlement to a rating in excess of 50 percent for PTSD. 2. On May 7, 2021, prior to the promulgation of a decision in the appeal, the Veteran advised the Board of her desire to withdraw the appeal concerning entitlement to service connection for an eye disability. 3. The preponderance of the evidence of record is against finding that the Veteran has had symptoms of TBI residuals at any time during or approximate to the pendency of the claim. 4. The preponderance of the evidence of record is against finding that the Veteran has had a bilateral hearing loss disability for VA purposes at any time during or approximate to the pendency of the claim. 5. The Veteran's left hip degenerative joint disease, left hip, status post unipolar arthroplasty, with limitation of extension of the thigh is rated as 10 percent disabling, which is the maximum schedular rating permitted for limitation of extension of the thigh. 6. The Veteran's degenerative joint disease, left hip, with limitation of flexion is manifested by flexion to no worse than 90 degrees. 7. The Veteran's degenerative joint disease, left hip, with limitation of external rotation is manifested by limitation of external rotation to 10 degrees. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for a rating in excess of 50 percent for PTSD by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the claim for service connection for an eye disability by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for service connection for a TBI are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for a rating in excess of 10 percent for left hip degenerative joint disease, left hip, status post unipolar arthroplasty, with limitation of extension of the thigh have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5251. 6. The criteria for a compensable rating for degenerative joint disease, left hip, status post unipolar arthroplasty, with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5252. 7. The criteria for a compensable rating for degenerative joint disease, left hip, status post unipolar arthroplasty, with limitation of abduction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5253. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1984 to March 1994 and February 2003 to May 2004 as well as additional periods of reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran appeared and testified at a Virtual Board hearing before the undersigned Veterans Law Judge. The claim for a rating in excess of 50 percent for PTSD is dismissed. The claim for service connection for an eye disability is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the appellant has withdrawn the claims of entitlement to service connection for an eye disability and to a rating in excess of 50 percent for PTSD and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they are dismissed. Service Connection Service connection for a TBI is denied. The Veteran contends that she has a TBI that was suffered in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Board concludes that the Veteran does not have a current diagnosis of TBI and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). An August 2017 VA examiner evaluated the Veteran and determined that, while she experienced symptoms of headaches and dizziness, she was not considered to have symptoms attributable to a TBI. The Veteran had a CT scan in September 2017 which showed no intracranial pathology indicative of a TBI. The examiner noted that the Veteran suffered multiple minor concussions during service, but was released to duty after an initial evaluation each time. Further, in a 2015 evaluation, the Veteran denied any TBI events or symptoms. Despite treatment from 2008 to the presents, the records do not contain a diagnosis of TBI. While the Veteran may consider herself to have TBA residuals, she is not shown to have the expertise to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Service connection for bilateral hearing loss is denied. The Veteran contends that she has bilateral hearing loss that warrants service connection. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Impaired hearing will be considered to be a disability when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, 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 the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of bilateral hearing loss and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The August 2017 VA examiner evaluated the Veteran and determined that she did not have hearing loss disability for VA purposes. While she had diminished hearing bilaterally, neither ear met the qualifications listed in 38 C.F.R. § 3.385. The examiner noted the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 15 20 LEFT 10 10 25 25 25 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. The Board notes the Veteran's statements that her hearing began to worsen after leaving Iraq and worsened in the three years prior to her 2017 examination. However, the objective evidence of record, the VA audiometric examination, does not show that the Veteran has a hearing loss disability for VA purposes. At her May 2021 hearing, the Veteran contended that examiners have diagnosed her with bilateral hearing loss that is worse in the left ear. However, a review of the Veteran's treatment records shows that her hearing loss does not meet the criteria of a hearing loss disability for VA purposes. While the Veteran understands she has bilateral hearing loss, she does not possess the expertise to establish she meets the criteria of a hearing loss disability for VA purposes. The issue is medically complex, as it requires specific medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Increased Rating A rating in excess of 10 percent for degenerative joint disease, left hip, status post unipolar arthroplasty, with limitation of extension, is denied. A compensable rating for degenerative joint disease, left hip, limitation of abduction, is denied A compensable rating for degenerative joint disease, left hip, limitation of flexion, is denied. The Veteran contends that she is entitled to a higher rating for her left hip disabilities. The Veteran contends that a minimum 30 percent rating should be applied as she underwent a hip arthroplasty in 2007. Here, the evidence shows that the Veteran a hip resurfacing in January 2007. The March 2019 VA examiner noted it as Birmingham hip arthroplasty, a procedure which covers the femoral head. Thus, it cannot be said that the Veteran had a total hip arthroplasty and the minimum 30 percent rating following total arthroplasty is not warranted. A note following Diagnostic Code 5054 instructs to "evaluate resurfacing under diagnostic codes 5250 through 5255; there is no minimum evaluation for resurfacing." Thus, the Board will continue to evaluate the Veteran's left hip under Diagnostic Codes 5250 through 5255. The Veteran's left hip disability is rated is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5251, 5252, and 5253, for limitation of extension of the thigh limitation of flexion, and limitation of abduction. Under Diagnostic Code 5251, a maximum 10 percent rating is warranted for extension of the thigh limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. Under Diagnostic Code 5252, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 20 degrees. A maximum 40 percent rating is warranted for flexion limited to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252. Under Diagnostic Code 5253, a 10 percent rating is warranted for limitation of rotation of affected leg, cannot toe out more than 15 degrees. A 10 percent rating is also warranted for limitation of adduction, cannot cross legs. A maximum 20 percent rating is warranted for limitation of abduction, motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). At her March 2019 VA examination the Veteran was found to have flexion to 90 degrees, extension to 20 degrees, abduction to 45 degrees, and adduction to 25 degrees. External rotation was limited to 40 degrees and internal rotation was limited to 20 degrees. Pain was noted on the examination that caused functional loss. Due to pain, weakness, and lack of endurance, the Veteran was noted as having flexion to 90 degrees, extension to 10 degrees, abduction to 45 degrees and adduction to 25 degrees. External rotation would be limited to 30 degrees and internal rotation to 20 degrees. Further, the Veteran was noted as having reduced strength in her left hip in flexion, extension, and abduction and localized tenderness to the greater trochanter. However, there was no evidence of crepitus, muscle atrophy, or ankylosis and no evidence of additional functional loss due to repetitive use. The examiner noted that the Veteran would have difficulty sitting on the floor, running, or performing yoga. The Veteran testified that her hip disability has greatly diminished her quality of life as she is unable to run anymore and has limited ability to hike. The Veteran is entitled to separate ratings for her hip disabilities under Diagnostic Codes 5251, 5252, and 5253. However, her hip disabilities are not manifested by a compensable disability in extension, flexion, or rotation. Further, providing separate ratings under those diagnostic codes based on painful motion pursuant to 38 C.F.R. § 4.59 and Burton would constitute impermissible pyramiding because doing so would be compensating the same symptomatology under different diagnostic codes. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Rather, a single 10 percent rating due to pain on motion of the hip, which is currently assigned, is appropriate. As noted, no ankylosis was found, thus a rating under Diagnostic Code 5250 is not warranted. Further, no impairment of the femur was found such that a rating under Diagnostic Code 5254 or 5255 is warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating in excess of 10 percent for a hip disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to service connection for breast cancer is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for bilateral plantar fasciitis is remanded. Entitlement to service connection for right trapazoidectomy is remanded. Entitlement to service connection for left trapazoidectomy is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to a rating in excess of 10 percent for degenerative joint disease, cervical spine, prior to March 26, 2019 is remanded. Entitlement to a rating in excess of 20 percent for degenerative joint disease, cervical spine, from March 26, 2019 is remanded. Regarding the claims for service connection for breast cancer, a right ankle disability, a left ankle disability, bilateral plantar fasciitis, right trapazoidectomy, left trapazoidectomy, obstructive sleep apnea, and a rating in excess of 10 percent prior to March 26, 2019 and in excess of 20 percent thereafter for service-connected degenerative joint disease of the cervical spine, the Board finds that remand is necessary. In her May 2021 Board hearing, the Veteran identified records that have not been obtained that may directly impact a decision on these matters. Specifically, the Veteran identified National Guard records that may contain information regarding the injuries sustained during periods of ACDUTRA or INACDUTRA that directly bear on the claims for service connection. Further, she has also identified private treatment records regarding her cervical spine condition. Entitlement to service connection for tinnitus is remanded. Regarding the claim for service connection for tinnitus, at her May 2021 Board hearing the Veteran described having ringing in her ears several times per month. However, at her August 2017 VA examination, the examiner recorded that the Veteran did not report current symptoms. It is unclear if the examiner inquired about any tinnitus symptoms or when any reported tinnitus symptoms started. As such, remand for a new examination is warranted. The matters are REMANDED for the following action: 1. Ask the Veteran to complete authorization for the release of records from the Kansas National Guard concerning any injuries she sustained serving on ACDUTRA or INACDUTRA, and from Mount Holly Virtual Ambulatory Care. Make two requests for the authorized records from Kansas National Guard and the Mount Holly Virtual Ambulatory Care, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for a VA examination for her tinnitus. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran's tinnitus at least as likely as not related to service? In addressing the above, the examiner must discuss the Veteran's contentions that she experiences tinnitus symptoms several times per month. Provide a rationale to support the opinion(s). 3. Readjudicate the claims on appeal. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Uller, Associate 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.