Citation Nr: 21006888 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 12-14 326A DATE: February 5, 2021 ORDER Service connection for right ear hearing loss is denied. An initial rating higher than 10 percent for the left knee disability is denied. REMANDED Service connection for a cervical spine disorder is remanded. Service connection for a right shoulder disorder is remanded. An initial compensable rating for functional dyspepsia is remanded. An initial rating higher than 10 percent for the right knee disability is remanded. FINDINGS OF FACT 1. A current right ear hearing loss disability is not shown by the evidence of record. 2. The Veteran’s left knee disability has not been manifested by flexion limited to 30 degrees or worse; or compensable limitation of extension. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.385. 2. The criteria for an initial rating higher than 10 percent for the left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 2004 to June 2008 and is in receipt of a Combat Action Ribbon, which denotes participation in combat. These matters come before the Board of Veterans Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in April 2011. A transcript of the Veteran’s October 2015 testimony at a videoconference hearing before the undersigned Veterans Law Judge is of record. The claims were remanded by the Board in March 2016, May 2017 and July 2019. Service connection was established for left ear hearing loss in an October 2020 rating decision leaving only the issue of service connection for right ear hearing loss on appeal. The October 2020 rating decision also assigned a 10 percent rating for residuals of nose fracture with breathing problems effective September 10, 2010, which was noted to represent a total grant of the benefit sought on appeal because the Veteran had been awarded the maximum benefit provided by the rating schedule. Neither the Veteran nor his representative has disagreed with the characterization of that issue as being a total grant of benefits. Thus, that issue is no longer before the Board. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 1. Service connection for right ear hearing loss The Veteran originally sought service connection for bilateral hearing loss. Service connection was recently established for left ear hearing loss in an October 2020 rating decision; therefore, only the issue of service connection for right ear hearing loss remains on appeal. For the purposes of applying the law administered by VA, 38 C.F.R. § 3.385 provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or more; when the auditory thresholds for at least three of the frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The preponderance of the evidence is against the claim for service connection for right ear hearing loss. A current disability is the cornerstone of a claim for VA disability compensation and in the absence of proof of a present disability, there can be no valid claim. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The Veteran has not exhibited hearing loss in his right ear that meets the criteria for disability under 38 C.F.R. § 3.385 during any audiometric testing conducted in conjunction with his claim. Without evidence of a current right ear hearing loss disability, service connection is not warranted, and the claim must be denied. The Board acknowledges the Veteran’s representative’s assertion that the Court’s decision in Saunders v. Wilkie applies in this case since the Veteran has asserted that his hearing loss impacts his ability to work because he cannot understand what people are saying to him. In Saunders, the United States Court of Appeals for the Federal Circuit held that even in the absence of a diagnosis, there is a current disability where a veteran experiences functional impairment from symptoms of a disorder. However, since VA has specifically defined what constitutes a hearing loss disability in 38 C.F.R. § 3.385, the Federal Circuit’s holding in Saunders is not applicable to a claim for service connection for hearing loss. See McKinney v. McDonald, 28 Vet.App. 15, 25 (2016) (concluding that § 3.385 "reasonably interpreted what constitutes a hearing disability"). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 2. An initial rating higher than 10 percent for the left knee disability Service connection for a left knee disability was granted in the April 2011 rating decision that is the subject of this appeal. A noncompensable rating was assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5260, effective September 10, 2010. The rating was increased to 10 percent, also effective September 10, 2010, in a May 2018 rating decision. The RO specifically indicated that the provisions of 38 C.F.R. § 4.40 and § 4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups, as cited in DeLuca and Mitchell had been considered and applied under 38 C.F.R. § 4.59 in assigning the 10 percent. Diagnostic Code 5260 provides the rating criteria for limitation of flexion of the knee and leg. Ratings higher than 10 percent are provided for flexion limited to 30 degrees (20 percent) and flexion limited to 15 degrees (30 percent). Separate evaluations may be assigned for compensable limitation of flexion and extension of the same joint. See VAOPGCPREC 09-2004 (September 17, 2004). Diagnostic Code 5261 provides ratings for limitation of extension with the following ratings assigned: 0 percent for extension limited to 5 degrees, 10 percent for extension limited to 10 degrees, 20 percent for extension limited to 15 degrees, 30 percent for extension limited to 20 degrees, 40 percent for extension limited to 30 degrees, and 50 percent for extension limited to 45 degrees. The Veteran seeks a higher initial rating. He testified that he limits any sort of use, no longer works out or does anything too physical, and was taking painkillers. The preponderance of the evidence, however, is against the assignment of an initial rating higher than 10 percent for the left knee disability. In this regard, at no time during the appeal has the Veteran’s left knee reflected motion limited to 45 degrees of flexion to support even a 10 percent rating under Diagnostic Code 5260. Rather, at worst, the Veteran exhibited flexion in the left knee limited to 125 degrees. See VA examination reports dated January 2011, August 2017 and February 2020; November 2015 Disability Benefits Questionnaire (DBQ) submitted by Veteran. A higher or separate rating for limitation of extension is also not warranted as the Veteran’s left knee never reflected motion limited to 10 degrees of extension to support a 10 percent rating under Diagnostic Code 5261 at any time during the appeal. Rather, at worst, left knee extension was limited to five degrees during the November 2015 DBQ and the February 2020 VA examination. Consideration has been given to left knee functional impairment and the effect of pain on functional abilities during the appeal period. The Board acknowledges the Veteran’s statements made in writing and during VA examinations and when seeking treatment regarding functional impairment caused by his left knee. During the January 2011 VA examination, the Veteran was able to do three deep knee bends showing no overt pain elicited at 140 degrees; there was no change in active or passive range of motion during repeat testing against resistance; no loss of range of motion due to overt painful motion, weakness, impaired endurance, incoordination, or instability; and in an addendum, the examiner concluded that outside of running over a mile, the Veteran had no symptoms referable to his knee. During the August 2017 VA examination, although there was objective evidence of tenderness to palpation along the superolateral aspect of the left knee, just above distal insertion point, and pain was noted with flexion, the pain with flexion did not result in/cause functional loss; there was also no pain with weight bearing or crepitus, the Veteran was able to perform repetitive use testing with his left knee without additional loss of function or range of motion, and the examiner determined that pain, weakness, fatigability and/or incoordination would not significantly limit functional ability with repeated use or with flare-up. Finally, during the February 2020 VA examination, there was no objective evidence of pain during range of motion testing, no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, no evidence of pain with weight bearing, and no objective evidence of crepitus. The Veteran was also able to perform repetitive use testing without additional loss of function or range of motion. Given the foregoing, the Board concludes that the functional impairment and effect of pain exhibited by the service-connected left knee disability have already been considered by the RO in the assignment of the 10 percent rating. The Veteran’s limitation of left knee motion has not risen to a compensable level under Diagnostic Codes 5260 and 5261. Thus, the 10 percent rating presently assigned contemplates the functional impact arising from the objective findings and the Veteran’s subjective complaints of painful motion. Accordingly, a higher or separate rating based on limitation of flexion and extension is not warranted. The Board has also considered whether a separate rating is warranted under Diagnostic Code 5257 at any time during the appeal period. See VAOPGCPREC 23-97; 62 Fed. Reg. 63, 604 (1997). Diagnostic Code 5257 provides ratings of 10, 20, and 30 percent for slight, moderate, and severe recurrent subluxation or lateral instability of the knees, respectively. Since stability testing was normal during the January 2011, August 2017 and February 2020 VA examinations, and there is no subjective or objective evidence of left knee instability in any treatment records, a separate rating is not warranted in this case. In sum, the preponderance of the evidence supports the currently assigned 10 percent rating for the left knee disability under Diagnostic Code 5260. The evidence in this case is not so evenly balanced to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Service connection for a cervical spine disorder 2. Service connection for a right shoulder disorder The Veteran seeks service connection for a right shoulder disorder and asserts that his right shoulder problems onset during service at the same time that his service-connected left shoulder problems arose. He contends that he has the same problem, labral tears with bicep fraying, in both shoulders and while acknowledging that he only reported problems with his left shoulder at the time of his discharge from service, asserts the right shoulder injury is identical to the left. The Veteran also seeks service connection for a cervical spine/neck disorder. He testified that the condition onset during service as a result of constant training for deployments that included carrying heavy loads with weight pressed up against his neck, which continued during actual combat. The Veteran’s representative has requested an opinion that considers whether the rigors of combat service may have caused the Veteran’s right shoulder and neck conditions. An addendum opinion will be requested. 3. An initial compensable rating for functional dyspepsia is remanded. The Veteran is rated analogously for functional dyspepsia under 38 C.F.R. § 4.114, Diagnostic Code 7346, which provides the criteria for hiatal hernia. A 10 percent rating requires two or more of the symptoms for the 30 percent evaluation of less severity. The 30 percent rating is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The VA examination conducted in February 2020 does not address whether the Veteran has any such manifestations. Another VA examination that does is required on remand. 4. An initial rating higher than 10 percent for the right knee disability is remanded. During the February 2020 VA examination, it was noted the Veteran had undergone a right knee operation in December 2019. Records related to that procedure should be requested. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the relevant information needed to obtain records from the medical care provider who performed surgery on his right knee in December 2019. After securing any necessary releases, the relevant records identified should be requested. Additionally, updated VA treatment records should be obtained. If any requested records cannot be obtained, the Veteran should be notified of such. 2. Return the claims file to the VA examiner who provided the February 2020 medical opinion on the Veteran’s claims for disorders of the cervical spine/neck and right shoulder. If that examiner is not available, the opinion should be provided by another qualified VA examiner. Following review of the claims file, the examiner is asked to specifically address the rigors of the Veteran’s combat service in providing an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current cervical spine/neck and right shoulder conditions manifested in service or are otherwise related to service. The examiner should explain why or why not, without reliance on the absence of complaints involving the cervical spine/neck and/or right shoulder in service treatment records. 3. Schedule the Veteran for a VA esophageal conditions examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the current severity of the service-connected functional dyspepsia. The claims file should be reviewed by the examiner. All necessary tests should be performed, and the results reported. All symptomatology associated with the functional dyspepsia should be reported, with specific reference as to whether it is manifested by epigastric distress, dysphagia, pyrosis, regurgitation, and/or substernal or arm or shoulder pain. 4. If the claims remain denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Van Wambeke, 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.