Citation Nr: 21009738 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-56 236A DATE: February 23, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss disability is denied. Entitlement to a 60 percent rating for left total knee arthroplasty with osteoarthritis from October 1, 2018 to August 12, 2020, is granted. FINDINGS OF FACT 1. The most probative evidence shows the Veteran has no more than Level VI hearing in the right ear and Level I hearing in the left ear. 2. From October 1, 2018 to August 12, 2020, the disability picture pertaining to the left total knee arthroplasty with osteoarthritis more nearly approximated chronic residuals consisting of severe painful motion or weakness in the left leg. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss disability are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85, Part 4, Diagnostic Code 6100. 2. The criteria for a 60 percent rating from October 1, 2018 to August 12, 2020 for left total knee arthroplasty with osteoarthritis are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to October 1970. In April 2020 the Board remanded these claims to obtain new VA examinations to determine the severity of the Veteran’s bilateral hearing loss and left knee disability. The examinations were obtained in August 2020. The prior remand instructions have been substantially complied with. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Increased rating for bilateral hearing loss disability. The Veteran seeks a higher rating for his bilateral hearing loss disability, which is currently rated noncompensable under 38 C.F.R. § 4.85. 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. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold and as measured by Puretone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test (Maryland CNC) together with the results of a Puretone audiometry test. The vertical lines in Table VI (38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the Puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the Puretone decibel loss. The percentage evaluation is found from Table VII (38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level of “V” and the poorer ear has a numeric designation Level of “VII,” the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85. The provisions of 38 C.F.R. § 4.86 (a) provide that when the Puretone thresholds at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) 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 will be evaluated separately. The provisions of 38 C.F.R. § 4.86 (b) provide that when the Puretone threshold is 30 dB or less at 1000 hertz, and 70 dB 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 elevated to the next higher Roman numeral. Each ear will be evaluated separately. As will be explained below, neither section 4.86 (a) nor 4.86 (b) are applicable. A September 2014 private audiogram shows Puretone thresholds in decibels as follows: HERTZ 1000 2000 3000 4000 RIGHT 35 45 60 50 LEFT 35 40 60 55 The Puretone threshold average was 47.5 decibels in the right and left ears. Speech discrimination scores were 88 percent for the right ear and 95 percent for the left, although whether the Maryland CNC word test was used is not indicated on the examination report or the accompanying letter from the audiologist. At a May 2015 VA audiological examination, Puretone thresholds in decibels were as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 55 70 65 LEFT 35 50 65 60 The Puretone threshold average was 57.5 decibels for the right ear and 52.5 decibels for the left ear. Speech discrimination scores using the Maryland CNC word test were 82 percent for the right ear and 94 percent for the left ear. These results equate to a noncompensable rating after applying the criteria and appropriate tables in 38 C.F.R. § 4.85. The Veteran was provided another VA audiological examination in November 2017, where Puretone thresholds in decibels were as follows: HERTZ 1000 2000 3000 4000 RIGHT 45 55 70 65 LEFT 45 50 60 70 The Puretone threshold average was 58.75 decibels for the right ear and 56.25 decibels for the left ear. Speech discrimination scores using the Maryland CNC word test were 88 percent for the right ear and 94 percent for the left ear. These results equate to a noncompensable rating after applying the criteria and appropriate tables in 38 C.F.R. § 4.85. A May 2019 VA audiology evaluation reports mild sensorineural hearing loss from 250 to 1000 hertz sloping to moderate to moderately severe from 2000 to 8000 hertz for the right ear, and normal hearing at 250 hertz sloping to mild to moderately severe sensorineural hearing loss from 500 to 8000 hertz. No Puretone thresholds were recorded. The audiologist noted that the Veteran initially exaggerated threshold responses in both ears. Valid speech recognition thresholds could not be obtained. Word recognition ability was recorded as “AD: 72% at 80 dbhl” and “AS: 64% at 80 dbhl” with no indication whether the Maryland CNC word test was performed. Given the lack of any recorded Puretone thresholds this audiology evaluation is not valid for rating purposes. The Veteran testified at a Board travel hearing in January 2020. He reported that he had received new hearing aids in January 2019 and that his hearing had worsened since the last time he was tested. He was provided another VA audiological examination in August 2020. The examiner determined that she could not test the Veteran’s Puretone thresholds accurately. The examiner explained that the test results were not valid for rating purposes because the Veteran provided inconsistent and unreliable responses to Puretone stimuli and speech recognition threshold spondees, and that speech testing could not be completed due to poor intertest consistency. Using the criteria contained in 38 C.F.R. § 4.85, the usable examinations of record show that during the period on appeal the Veteran has had, at worst, a numeric designation of Level VI for his right ear and Level I for his left ear. These numeric designations coincide with a 0 percent, noncompensable rating for his bilateral hearing loss. See 38 C.F.R. § 4.85, Table VII. There is no objective audiologic evidence inconsistent with the findings of the examinations reported above. None of the audiograms of record reveal an exceptional pattern of hearing loss. The documented Puretone thresholds at 1000, 2000, 3000, and 4000 Hertz have not each been shown to be above 55 decibels. Furthermore, the Puretone thresholds at 1000 Hertz have consistently been higher than 30 decibels, while the threshold at 2000 Hertz has not been shown to be 70 decibels or higher. As such, 38 C.F.R. § 4.86 is inapplicable. A compensable rating for the Veteran’s service-connected bilateral hearing loss disability is not warranted. The criteria set out by VA for a 10 percent or greater rating have not been met or approximated at any time. The Veteran has submitted statements relating to the functional impact of his hearing loss and did report that his hearing had worsened at the January 2020 Travel Board hearing. However, the subsequent VA examination did not yield usable Puretone or speech recognition results due to the Veteran’s inconsistent and unreliable responses to the testing. The documented examinations show no objective support for a compensable rating. Audiologic evaluations reflect that the Veteran’s hearing loss does not reach the level of disability contemplated by a 10 percent rating or greater. Assignment of a schedular disability rating for hearing impairment is derived by mechanical application of the rating schedule to the numeric designation assigned after valid audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination based on the results of the valid audiology studies of record. Lendenmann, 3 Vet. App. at 349. For the reasons outlined above, the preponderance of the evidence is against the claim for an increased rating for bilateral hearing loss. The claim is denied.   2. Increased rating for total left knee arthroplasty with osteoarthritis from October 1, 2018 to August 12, 2020. Initially, we note that there is a date discrepancy regarding the period on appeal. A September 2020 Supplemental Statement of the Case (SSOC) denied a rating in excess of 30 percent from August 17, 2018 to August 12, 2020. However, review of the records shows a temporary 100 percent rating following the Veteran’s second knee replacement surgery remains in effect until October 1, 2018. As such, the Board will recharacterize the issue as whether a rating in excess of 30 percent is warranted for the period from October 1, 2018 through August 12, 2020. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). As explained below, the Board has determined that a uniform rating for total left knee arthroplasty with osteoarthritis is appropriate for the period on appeal. When assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). Residuals of a total knee replacement are evaluated under Diagnostic Code 5055. A 100 percent evaluation is assigned for one year following implantation of prosthesis. A minimum 30 percent evaluation is assigned thereafter. A maximum 60 percent evaluation is warranted when there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain or limitation of motion are evaluated by analogy to diagnostic codes 5256, 5261, or 5262. See 38 C.F.R. § 4.71a, Diagnostic Code 5055. Under Diagnostic Code 5055, if more than one year has passed since the replacement, a 60 percent rating is the maximum schedular rating available. 38 C.F.R. § 4.71a, Diagnostic Code 5055; Copeland v. McDonald, 27 Vet. App. 333 (2015) (when a condition is specifically listed in the rating schedule, it may not be rated by analogy under a different diagnostic code) For the sake of clarity, we will review the procedural and ratings history for the Veteran’s left knee. He was in receipt of a post-surgical total evaluation for a left knee replacement from September 11, 2012 to October 31, 2013. A 30 percent evaluation was initially assigned under Diagnostic Code 5055 from November 1, 2013 forward. He filed the current increased rating claim on January 6, 2015 and underwent a second total left knee replacement on August 17, 2017. In an April 2020 decision, the Board granted a 60 percent evaluation under Diagnostic Code 5055 for the entire period on appeal prior to August 17, 2017, then granted a 100 percent evaluation for the one year following the Veteran’s second total left knee replacement on August 17, 2017. The Board also remanded the issue of an evaluation in excess of 30 percent from August 17, 2018 forward in order to provide a new VA examination and to give the Veteran an opportunity to submit additional evidence. In an April 2020 rating decision, the Agency of Original Jurisdiction (AOJ) assigned a 60 percent evaluation from January 6, 2015, the date the Veteran’s increased rating claim was received, to August 17, 2017, the date of the second total knee replacement. The AOJ mistakenly assigned a 100 percent evaluation following the surgery from August 17, 2017 to October 1, 2017. In May 2020, the AOJ corrected the date error and assigned a temporary total evaluation from August 17, 2017 through October 1, 2018, with a 30 percent evaluation effective October 1, 2018. Following re-examination, the AOJ increased the left knee rating to 60 percent effective August 12, 2020, the date of the examination. An SSOC was issued in September 2020 denying a rating in excess of 30 percent “from August 17, 2018 thru August 12, 2020” and the claim was recertified to the Board. To summarize, a schedular maximum 60 percent rating is in effect from January 6, 2015 (the date the instant claim was received) through August 17, 2017. Another temporary 100 percent evaluation is assigned for the period from August 17, 2017 to October 1, 2018 following his second knee replacement surgery. A 30 percent evaluation is in effect from October 1, 2018 to August 12, 2020, after which time a 60 percent evaluation has been assigned by the AOJ. We have recharacterized the period on appeal to accurately reflect that a temporary total evaluation is in effect until October 1, 2018, and that the Veteran seeks a rating in excess of 30 percent from October 1, 2018 to August 12, 2020. Regarding the periods for which a 60 percent evaluation has already been assigned, we note that this is the schedular maximum rating available under Diagnostic Code 5055 once the one-year period following a total knee replacement has expired. Diagnostic Code 5055 specifically considers the Veteran’s left knee replacement, and there is no evidence of another knee replacement. No higher rating is possible for the periods for which a 60 percent evaluation is already assigned, and these ratings will not be addressed. See amputation rule. Thus, only remaining question for the Board is whether the Veteran is entitled to a rating in excess of 30 percent for his left knee from October 1, 2018 to August 12, 2020. After reviewing the evidence, we conclude that the manifestations of his left knee disability most closely approximated chronic residuals consisting of severe painful motion or weakness in the left leg. As such, a 60 percent (schedular maximum) evaluation is warranted. At a November 2017 VA examination for the left knee, the examiner determined the Veteran had intermediate degrees of residual weakness, pain, or limitation of motion. We note that this examination dates from the one-year period following the Veteran’s second left knee replacement, when he was in receipt of a temporary 100 percent evaluation. VA treatment records from the relevant period show ongoing complaints of left knee pain and swelling. June 2019 VA primary care notes show the Veteran’s patella was not tracking or lateralizing and that the Veteran was having increased pain. His physician recommended physical therapy to strengthen the knee. The Veteran testified at a Travel Board hearing in January 2020. Regarding his symptoms following the second knee surgery, he reported that he still had pain in his knee, that he had to attend physical therapy twice per week to strengthen his knee, and that he had been prescribed medication for inflammation and topical medications for pain. Private treatment records show that in April 2020 the Veteran reported that he had been having more left knee pain since he stopped going to the gym due to COVID-19. He also reported that his knee was more painful at the end of the day and at night, rated the pain at a 7/10, and that he used a brace and patches for pain relief. May 2020 followup notes reflect that the Veteran had been walking three times per week and could walk for 1.5 to 2 miles, and that his knee pain was better after walking. However, the pain worsened throughout the day and could be at a 9/10 at the end of the day. He still used a knee brace and patches and had been prescribed Voltaren gel for the knee pain. he was assessed with IT band syndrome. In a communication received in May 2020, the Veteran reported using a knee brace and tape toto support his knee. He was provided a VA examination for his left knee on August 12, 2020. He reported chronic pain and decreased function in the left knee since surgery, that he could not walk very far, and although physical therapy helped to improve stiffness, the knee improved only when he was doing the exercises. Stability tests were negative, although the Veteran reported that he used a brace and a cane constantly for his left knee. The examiner determined the Veteran had chronic residuals consisting of severe painful motion or weakness due to the total knee replacements. We find that the Veteran’s symptoms more nearly approximated most closely approximated chronic residuals consisting of severe painful motion or weakness in the left leg. The Veteran regularly reported that his left knee pain was severe, and the frequency of his complaints suggests the pain in his left knee was chronic and did not resolve during the relevant period, even if the pain lessened when he was able to exercise. He wore a knee brace and tape on his knee throughout the relevant period and used a cane, and his VA physician recommended physical therapy to strengthen the knee. This suggests that he continued to have weakness and instability of the left knee and leg following the second surgery. Notably, the August 2020 VA examination is the examination provided closest to the period on appeal. Indeed, the AOJ increased the rating for the left knee to 60 percent solely because of the examiner’s conclusion that he had chronic residuals consisting of severe painful motion or weakness. Compared to the previous November 2017 VA examination report, it is clear the Veteran’s knee worsened during the relevant period on appeal between the two examinations. Finally, the Veteran’s symptoms during the period at issue are remarkably similar to the symptoms he reported during prior periods for which a 60 percent evaluation is already assigned. For example, at a September 2016 appointment the Veteran reported left knee pain at 7/10 and that he wears a brace and athletic tape over the knee for pain and stability. Here, we are unconvinced that the knee became worse on the day of an examination. We find nothing in the examination report that establishes facts different than that reported during the hearing. Furthermore, the testimony   reflected on-going problems since the surgery. We conclude that competent lay evidence is, in fact, evidence. At best, the 2020 examination merely confirmed the testimony rather than establishing a change in disability. Given the above, the Board concludes a schedular maximum 60 percent evaluation is warranted for left total knee arthroplasty with osteoarthritis from October 1, 2018 to August 12, 2020. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morse 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.