Citation Nr: 21010393 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-37 135 DATE: February 24, 2021 ORDER Entitlement to a compensable evaluation for bilateral hearing loss for the period prior to September 14, 2020 is denied. Entitlement to an evaluation in excess of 10 percent for bilateral hearing loss for the period beginning September 14, 2020 is denied. REMANDED Entitlement to service connection for a right hip disability, to include as secondary to service-connected low back disability is remanded. Entitlement to service connection for a left hip disability, to include as secondary to service-connected low back disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for restless leg syndrome is remanded. FINDINGS OF FACT 1. For the period prior to September 14, 2020, the Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level I in the right ear and no worse than Level I in the left ear. 2. For the period beginning September 14, 2020, the Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level IV in the right ear and no worse than Level III in the left ear. CONCLUSIONS OF LAW 1. For the period prior to September 14, 2020, the criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100 (2019). 2. For the period beginning September 14, 2020, the criteria for an evaluation in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1977 to February 1980 and from March 1982 to September 2010. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. In February 2020, the Board remanded the matters for further development. Now the matters are returned to the Board. The Veteran is seeking higher evaluation for his service-connected bilateral hearing loss. The Board notes that the RO has increased the Veteran’s evaluation for bilateral hearing loss during the pendency of this appeal from 0 percent to 10 percent, effective September 14, 2020. See September 2020 Rating Decision. However, as the highest possible rating for the disability has not been assigned, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27 (2018). Staged ratings are appropriate for any rating claim 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). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100 (2019). To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a) (2019). In that situation, 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. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b) (2019). An April 2014 VA examination reveals that the Veteran reported that he uses visual cues and relies on lip reading in order to follow conversations because he notes that many words are garbled. He also indicated that he increases the volume of his television. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: April 28, 2014 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 10 50 60 55 44 94 LEFT 10 35 60 55 40 96 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Board notes that the Veteran underwent a private audiological evaluation on January 29, 2016. However, this private evaluation is not adequate for rating purposes under § 4.85(a), because the speech recognition scores are not Maryland CNC. A February 2016 VA examination reveals that the Veteran reported that conversations are not clear, and he relies on visual cues to help him understand what was said. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: February 10, 2016 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 10 55 60 55 45 94 LEFT 10 40 55 55 40 94 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A September 2020 VA examination reveals that the Veteran reported that conversations are not clear, and he relies on visual cues to help him understand what was said. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: September 14, 2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 50 60 60 46 72 LEFT 20 50 60 55 46 76 Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on above, the Board finds that the Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level I in the right ear and no worse than Level I in the left ear for the period prior to September 14, 2020, and no worse than Level IV in the right ear and no worse than Level III in the left ear for the period beginning September 14, 2020. Consequently, the Board finds that the Veteran’s entitlements to a compensable evaluation for bilateral hearing loss for the period prior to September 14, 2020, and an evaluation in excess of 10 percent for the period beginning September 14, 2020 are not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100 (2019). REASONS FOR REMAND The Veteran is also seeking entitlement to service connections for disabilities of right hip, left hip, right knee, and restless leg syndrome. However, the Board finds that more development is necessary prior to final adjudication. Initially, the Board notes that the Veteran contends that his right and left hip disabilities are secondary to his service-connected back condition as he had injured them in the same incident during which he injured his low back. As such, the Board has recharacterized the issues to reflect the Veteran’s secondary service connection claims for his bilateral hip disability as well. 1. Right hip disability Since the February 2020 Board remand order, the Veteran underwent a VA examination for hip conditions in September 2020. The examiner reported that the Veteran does not have a right hip diagnosis and the right hip X-ray is negative for pathology. The examiner also stated that there is “no objective findings to support subjective report of right hip pain.” In this regard, the Board finds that an addendum opinion is required to clarify the Veteran’s current right hip disability. In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), United States Court of Appeals for the Federal Circuit held that a disability for VA compensation purposes exists when pain causes functional impairment even if there is no underlying diagnosis. Thus, pain alone resulting in functional impairment is in fact a disability, and should not be summarily discounted as a bar to benefits based on a finding of no current diagnosis. Here, the Veteran reported during the February 2020 examination that he gets pain in his hips when he is sitting, standing, or walking for any length of time. The examiner also indicated that the range of motion testing for right hip could not be done, because the Veteran reported extreme stiffness, mild weakness, and severe pain in hips. See also February 2011 Visit Note (the Veteran’s back and buttocks pain into bilateral hips were noted). As such, the Board finds that a remand is required to clarify the Veteran’s current right hip diagnosis, to include functional impairment due to right hip pain. 2. Left hip disability On September 2020 VA examination, the examiner noted the Veteran’s left hip diagnoses of degenerative arthritis and enostosis. However, the examiner opined that the Veteran’s current left hip condition was less likely than not incurred or caused by the claimed in-service injury, event, or illness. As to the rationale for this opinion, the examiner only provided that the Veteran’s service treatment record (STR) is silent for a left hip condition during his service. However, the Board finds this opinion is inadequate as the Veteran’s STR and other records show reports regarding bilateral hip pain associated with back pain after stepping on a pothole while running. See e.g., April 3, 2006 STR (the Veteran’s low back pain has been radiating to hip for 2 years); February 23, 2011 Visit Note (the Veteran’s low back and buttocks pain with pain into the bilateral hips noted; he ran into a pothole unknowingly during a 2 mile run in the military and felt hips “jar” and low back “click”); September 2019 Hearing Transcript, at 17 (the Veteran’s hips were injured with his back when he stepped in a hole during physical training). Thus, the Board finds that an addendum opinion must be obtained to determine the etiology of the Veteran’s left hip disability with a consideration of all pertinent evidence. Also, the Board notes that the September 2020 VA examiner stated that an aggravation opinion could not be rendered at the time without providing further explanation. On remand, the examiner should provide a reason for such conclusion as well. 3. Right knee disability The Veteran’s diagnosis of right knee accessory ossicles was noted during the September 2020 VA examination. The examiner opined that the Veteran’s current right knee condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. However, the only rationale the examiner provided was that the STR is negative for a right knee condition during service. The Board finds that this opinion is incomplete as the examiner failed to consider the Veteran’s testimony as to the in-service injury to his right knee in service. During the September 2019 hearing, the Veteran testified that he had fallen a few times while running on cobblestones and ice in 1977 when he was in Germany, and once he had a fracture by his kneecap. See September 2019 Hearing Transcript, at 6. He also testified that he had a second fall in 1984 during a physical training in Germany, but no fracture was found after the second fall. Id., at 10. Further, the Veteran stated that he was given crutches and Motrin for both falls. Id., at 8-10. In light of the Veteran’s competent and credible testimony regarding the in-service right knee injuries, the Board finds that an addendum opinion addressing his testimony must be obtained prior to final adjudication of the matter. 4. Restless leg syndrome On September 2020 VA examination for peripheral nerves conditions, the examiner noted the Veteran’s diagnosis of restless leg syndrome. The Board notes that the examiner provided rationale for secondary service connection opinion for restless leg syndrome, but the examiner failed to make any selections for answers to the questions for direct and secondary service connection opinions. As such, the examiner’s opinions regarding the etiology of the Veteran’s restless leg syndrome is not clear to the Board. Thus, the Board finds that obtaining a clarifying opinion is necessary in order to make a fully informed decision. Accordingly, the matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) must obtain an addendum opinion from the September 2020 VA examiner regarding the Veteran’s service connection claim for a right hip disability. If the September 2020 VA examiner is not available, the requested opinion with rationale should be rendered by another appropriate medical professional. If the examiner determines that a new examination is necessary, the AOJ should schedule one for the Veteran. The examiner should review the Veteran’s claims file and a copy of this REMAND order before rendering the requested addendum opinion. (a.) The examiner is asked to clarify the Veteran’s current right hip diagnosis. If no diagnosis is found, the examiner is asked to address the Veteran’s functional impairment due to his right hip pain. (b.) The examiner must opine whether the Veteran’s current right hip disability is at least as likely as not (50 percent or greater probability) related to his service or had its onset in service. (c.) The examiner specifically is asked to address the following notations in the Veteran’s STR related to his right hip injury/pain: 1) the Veteran stepped on uneven terrain while running in early October 2004 and his low back pain radiates to right hip (December 17, 2004 STR); 2) the Veteran’s low back pain has been radiating to hips for 2 years (April 3, 2006 STR); 3) the Veteran reported that he feels like right hip “gets stuck” (April 6, 2006 STR); and 4) had a follow up on exacerbation of chronic right lower back and hip pain, and right hip pain and mild degenerative joint disease within bilateral sacroiliac joints and symphysis pubis were noted (May 4, 2006 STR). (d.) The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, the examiner must provide an explanation for such rejection. (e.) The examiner must opine whether the Veteran’s current right hip disability is at least as likely as not (50 percent or greater probability) caused by or proximately due to his service-connected low back strain with degenerative arthritis and degenerative disorder disease. (f.) The examiner must opine whether the Veteran’s current right hip disability is at least as likely as not (50 percent or greater probability) aggravated beyond its natural progression by his service-connected low back strain with degenerative arthritis and degenerative disorder disease. (g.) The examiner must provide a complete written rationale for any opinion offered. If it is not possible to provide an opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. 2. The AOJ must obtain an addendum opinion from the September 2020 VA examiner regarding the Veteran’s service connection claim for a left hip disability. If the September 2020 VA examiner is not available, the requested opinion with rationale should be rendered by another appropriate medical professional. If the examiner determines that a new examination is necessary, the AOJ should schedule one for the Veteran. The examiner should review the Veteran’s claims file and a copy of this REMAND order before rendering the requested addendum opinion. (a.) The examiner must opine whether the Veteran’s current left hip disability is at least as likely as not (50 percent or greater probability) related to his service or had its onset in service. (b.) The examiner specifically is asked to address the Veteran’s reports of the left hip pain associated with the in-service back injury. See e.g., April 3, 2006 STR (the Veteran’s low back pain has been radiating to hips for 2 years); February 23, 2011 Visit Note (the Veteran’s low back and buttocks pain with pain into the bilateral hips noted; he ran into a pothole unknowingly during a 2 mile run in the military and felt hips “jar” and low back “click”); September 2019 Hearing Transcript, at 17 (the Veteran’s hips were injured with his back when he stepped in a hole during physical training) (c.) The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, the examiner must provide an explanation for such rejection. (d.) The examiner must opine whether the Veteran’s current left hip disability is at least as likely as not (50 percent or greater probability) caused by or proximately due to his service-connected low back strain with degenerative arthritis and degenerative disorder disease. (e.) The examiner must opine whether the Veteran’s current left hip disability is at least as likely as not (50 percent or greater probability) aggravated beyond its natural progression by his service-connected low back strain with degenerative arthritis and degenerative disorder disease. (f.) The examiner must provide a complete written rationale for any opinion offered. If it is not possible to provide an opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. 3. The AOJ must obtain an addendum opinion from the September 2020 VA examiner regarding the Veteran’s service connection claim for a right knee disability. If the September 2020 VA examiner is not available, the requested opinion with rationale should be rendered by another appropriate medical professional. If the examiner determines that a new examination is necessary, the AOJ should schedule one for the Veteran. The examiner should review the Veteran’s claims file and a copy of this REMAND order before rendering the requested addendum opinion. (a.) The examiner must opine whether the Veteran’s current right knee disability is at least as likely as not (50 percent or greater probability) related to his service or had its onset in service. (b.) The examiner specifically is asked to address the Veteran’s testimony regarding the in-service injury of his right knee that: 1) the Veteran had fallen a few times while running on cobblestones and ice in 1977 when he was in Germany, and once he had a fracture by his kneecap; 2) he had a second fall in 1984 during a physical training in Germany, but no fracture was found after the second fall; and 3) he was given crutches and Motrin for both falls. See September 2020 Hearing Transcript, at 6-10. (c.) The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, the examiner must provide an explanation for such rejection. (d.) The examiner must provide a complete written rationale for any opinion offered. If it is not possible to provide an opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. 4. The AOJ must obtain a clarifying opinion from the September 2020 VA examiner regarding the Veteran’s service connection claim for restless leg syndrome. If the September 2020 VA examiner is not available, the requested opinion with rationale should be rendered by another appropriate medical professional. If the examiner determines that a new examination is necessary, the AOJ should schedule one for the Veteran. The examiner should review the Veteran’s claims file and a copy of this REMAND order before rendering the requested addendum opinion. (a.) The examiner must opine whether the Veteran’s current restless leg syndrome is at least as likely as not (50 percent or greater probability) related to his service or had its onset in service. (b.) The examiner must opine whether the Veteran’s current restless leg syndrome is at least as likely as not (50 percent or greater probability) caused by or proximately due to his service-connected low back strain with degenerative arthritis and degenerative disorder disease. (c.) The examiner must opine whether the Veteran’s current restless leg syndrome is at least as likely as not (50 percent or greater probability) aggravated beyond its natural progression by his service-connected low back strain with degenerative arthritis and degenerative disorder disease. (d.) The examiner must provide a complete written rationale for any opinion offered. If it is not possible to provide an opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. 5. After completing the above actions and any other necessary development, the issues on appeal must be readjudicated. If the claims remain denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, 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.