Citation Nr: 21014833 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 17-14 125 DATE: March 15, 2021 ORDER An initial compensable evaluation for bilateral hearing loss is denied. Service connection for left knee patellofemoral cartilage degenerative changes status post meniscectomy (left knee disorder) is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to an evaluation in excess of 10 percent for right knee meniscal tear with osteoarthritis, is remanded. FINDINGS OF FACT 1. The Veteran has Level I hearing in his right ear and Level I hearing in his left ear. 2. The Veteran’s current left knee disorder is related to his service-connected right knee disorder. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.85, Diagnostic Code 6100. 2. The left knee disorder is proximately due to or the result of the Veteran’s service-connected right knee disorder. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1978 to February 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2015 and May 2017 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge in March 2020. A transcript of that hearing has been associated with the claims file. The Board remanded the claims for further development in June 2020. That development has been completed, and the case has since been returned to the Board for appellate review. Neither the Veteran nor his representative have 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). Law and Analysis I. Increased Disability Evaluation Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board notes that the Veteran in this case is appealing the initial assignment of a disability rating for his hearing loss, and as such, the severity of that disability is to be considered during the entire period from the initial assignment of the evaluation to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Hearing Loss The Veteran’s bilateral hearing loss is currently assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. 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). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies of 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 audiological evaluations are conducted using a controlled speech discrimination test together with the results of puretone audiometry tests. The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a 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 (in 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 for the numeric designation for the level for the ear having the poorer hearing acuity. For example, if the better ear had a numeric designation of Level “V” and the poorer ear had a numeric designation of Level “VII” the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.85(a), an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. See Savage v. Shinseki, 24 Vet. App. 259, 263-64 (2011). Regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that when the puretone threshold is 30 decibels or less at 1,000 Hertz and 70 decibels or more at 2,000, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. In considering the evidence of record under the laws and regulations as set forth below, the Board finds that the Veteran is not entitled to an increased evaluation for his service-connected bilateral hearing loss. During a VA examination in May 2015, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 25 30 55 LEFT 25 25 20 35 60 The puretone threshold average at 1000, 2000, 3000, and 4000 Hertz was 35 decibels in the right ear and 35 decibels in the left ear. The Maryland CNC controlled speech discrimination test revealed speech recognition of 96 percent bilaterally. Using Table VI, these audiometric findings equate to Level I hearing in the right ear and Level I hearing in the left ear. See 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, the evaluation for hearing loss is noncompensable under the provisions of 38 C.F.R. § 4.85. The Veteran then submitted a private audiogram dated March 2020. During that evaluation puretone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 20 35 70 LEFT 40 25 30 65 65 The puretone threshold average at 1000, 2000, 3000, and 4000 Hertz was 35 decibels in the right ear and 46 decibels in the left ear. Word recognition testing was performed, but during the Veteran’s March 2020 hearing, the Veteran’s representative clarified that such testing did not use the Maryland CNC test. As such, the Board is not able to consider this private audiological evaluation. See Savage v. Shinseki, 24 Vet. App. 259, 263-64 (2011). Nevertheless, the Veteran was afforded a more recent VA examination in September 2020 using the proper testing to ascertain the current severity of his service-connected hearing loss and testing results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 25 40 75 LEFT 40 25 30 70 65 The puretone threshold average at 1000, 2000, 3000, and 4000 Hertz was 40 decibels in the right ear and 48 decibels in the left ear. The Maryland CNC controlled speech discrimination test revealed speech recognition of 92 percent bilaterally. Using Table VI, these audiometric findings equate to Level I hearing in the right ear and Level I hearing in the left ear. See 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, the evaluation for hearing loss is noncompensable under the provisions of 38 C.F.R. § 4.85. The Board has also considered whether an initial compensable evaluation for bilateral hearing loss is warranted under 38 C.F.R. § 4.86. However, the Veteran’s disability does not meet the requirements of 38 C.F.R. § 4.86. In this regard, the available audiometric findings do not show that the Veteran has puretone thresholds of 55 decibels or more at each of the frequencies of 1,000, 2,000, 3,000 and 4,000 hertz or a puretone threshold of 30 decibels or less at 1,000 hertz and 70 decibels or more at 2,000 hertz. Based on the foregoing, the results of the relevant audiological examinations show that the Veteran is not entitled to an initial compensable evaluation. The Board has also considered the Veteran’s lay assertions regarding his diminished hearing. However, the assignment of disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations based on the audiology examination results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). It is clear from the Rating Schedule that a higher rating can be awarded only when loss of hearing has reached a specified measurable level. For these reasons, the Board finds that an initial compensable evaluation is not warranted. The Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Left Knee Disorder The Veteran’s service treatment records show that he injured his left knee during a tag football game in September 1982; he was diagnosed with left knee strain/sprain. Post-service records note difficulty walking due to a service-connected right knee disorder in January 2001 and after testing in March 2003. The Veteran was afforded a VA examination in connection with his left knee claim in April 2017. At that time, the VA examiner opined that the Veteran’s left knee disorder was less likely than not secondary to his right knee disorder. In support of that opinion, the examiner noted that the Veteran’s left knee x-rays showed minimal degenerative joint disease consistent with the Veteran’s age. The examiner also noted that while the Veteran had restricted range of motion in the right knee, it was not enough to alter the Veteran’s gait. The examiner instead found that the Veteran’s weight and active occupation as an electrician were likely influencing his knee mechanics. An addendum opinion was obtained in November 2018 in which the VA examiner opined that while the Veteran’s service treatment records indicated strain and contusions during service, there were no notes to indicate any permanent sequelae resulting from the self-limiting episodes. Medical records then show that the Veteran was injured during the course of his civilian employment in December 2018. MRI imaging performed at that time showed a meniscal tear and degenerative changes. Medical records indicate that the Veteran had had arthritis in the knee, but prior to his civilian work injury, had no issues with his left knee. An antalgic gait was noted during an April 2019 physical therapy assessment. The Veteran was then afforded a VA examination in September 2020. The examiner diagnosed the Veteran with left knee strain and patellofemoral cartilage degenerative changes status post meniscectomy. The examiner also indicated that there was pain causing functional loss and lack of endurance bilaterally, and difficulty with prolonged standing, walking and climbing stairs. The examiner then opined that the Veteran’s current left knee disorder was less likely than not incurred in or caused by his service. However, the examiner opined that after reviewing all medical records and evaluating the Veteran, the left patellofemoral cartilage degenerative changes status post meniscectomy was at least as likely as not aggravated beyond its natural progression by the right knee disability due to the increased pressure and weight being placed on the left knee. The examiner went on to note that the right knee pain commonly affected the alignment of the Veteran’s posture causing improper alignment. Therefore, the examiner opined that the left knee disorder was at least as likely as not aggravated by the right knee disorder, which caused pain and resulted in increased pressure on the left knee over time, as a result of natural compensation, which induced stress. Upon review of the evidence, the Board finds that the April 2017 VA examination has limited probative value as that examination occurred prior to the Veteran’s meniscal injury and notations regarding gait difficulty/abnormality. While the Board notes the medical evidence clearly shows the initial meniscal injury was related to the Veteran’s civilian position, the September 2020 VA examiner reviewed such evidence, evaluated the Veteran and determined that the service-connected right knee disorder was aggravating the left knee disorder. Therefore, the opinion of the September 2020 VA examiner is more probative evidence in this matter. Accordingly, the Board concludes that service connection for patellofemoral cartilage degenerative changes status post meniscectomy is warranted. REASONS FOR REMAND The Veteran was afforded a VA examination for his sleep apnea in September 2020. In the examination report, the examiner indicated that the Veteran’s sleep apnea had been diagnosed in May 2014. She later opined that the condition was less likely related to service. In support of that opinion she cited to medical records related to the Veteran’s knee disorder, as well as medical records diagnosing the Veteran with sleep apnea in 2007. She also indicated that sleep apnea can only be diagnosed via sleep study, which she stated had been done many years after active duty. However, the Board did not find a sleep study of record. Based on the above, it is unclear whether the September 2020 VA examiner based her opinion on accurate facts in evidence. Therefore, the Board finds that the AOJ should obtain a VA medical opinion, after all outstanding medical records and polysomnography reports/records are associated with the claims file, which considers all of the evidence of record. Additionally, the Board notes that a sleep study is referenced in the Veteran’s records, but the actual report appears to be missing. See VA Medical Center Atlanta record dated July 25, 2007 (indicating the date of the note/study is December 17, 2002, but date of entry was July 25, 2007). The 2020 VA examiner also cited to a May 2014 sleep study performed at the VA Medical Center in Tacoma, Washington, which does not appear to be of record. As such, the AOJ should ensure that all sleep studies and/or polysomnography records and reports are associated with the claims file. The Board also finds that the Veteran should be afforded a VA medical opinion for his right knee disorder. The Veteran’s service treatment records indicate that the Veteran had an in-service knee repair or reconstruction to address a right knee meniscus and LCL injury. The September 2020 VA examiner, however, noted a history of an in-service knee replacement surgery. While no other VA examiners reported a knee replacement surgery, the Board notes that VA medical records also mention a history of a total knee replacement. As such, the Board finds that a VA medical opinion is necessary in order to provide clarity as to whether the Veteran has previously had a total knee replacement of the right knee. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain any outstanding VA medical records and associate them with the claims file, to specifically include all sleep studies and/or polysomnography records and reports, to include, but not limited to records/reports dated December 17, 2002, July 25, 2007, and May 2014. 2. After the above development has been completed, the Veteran should be afforded a VA medical opinion to determine the nature and etiology of any sleep apnea disorder that may be present. Only if deemed necessary by the VA examiner is an actual examination necessary. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current sleep apnea disorder that is causally or etiologically related to his military service, to include any injury or symptomatology therein. The examiner should specifically address medical records which reference sleep apnea and/or a sleep study dated as far back as 2002 and the Veteran’s testimony that he was diagnosed with sleep apnea in the 1990s. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After the above development has been completed, the Veteran should be afforded a VA medical opinion to clarify the nature of his right knee disorder. Only if deemed necessary by the VA examiner is an actual examination necessary. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should opine as to whether the Veteran has had a total right knee replacement procedure. In providing such an opinion, the examiner should specifically address the September 2020 VA examination and VA medical records, which note a history of a total knee replacement. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Rideout-Davidson, 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.