Citation Nr: 21015104 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-27 472 DATE: March 16, 2021 ORDER Entitlement to an evaluation in excess of 30 percent disabling for right knee replacement with degenerative joint disease and instability from October 1, 2012, forward is denied. Entitlement to a compensable evaluation for bilateral hearing loss is denied. FINDINGS OF FACT 1. From October 1, 2012, forward, the Veteran’s right knee replacement with degenerative joint disease and instability has not been manifested by chronic residuals consisting of painful motion or weakness in the right knee described as severe. 2. Throughout the appeal period, the Veteran’s hearing was manifested by hearing acuity of no worse than Level I in the left and right ear, with speech discrimination scores of 100 percent in the right ear and 96 percent in the left ear. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to an evaluation in excess of 30 percent disabling for right knee replacement with degenerative joint disease and instability from October 1, 2012 forward have not been met. 38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5055 (2018). 2. The criteria for establishing entitlement to a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.385, 4.85, 4.86 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from December 1982 to December 1985. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from November 2011 and November 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The November 2011 rating decision awarded a temporary total rating from August 29, 2011, for right total knee replacement surgery, assigning a 30 percent rating for this disability as of October 1, 2012, and denied the Veteran’s increased ratings claims, to include bilateral hearing loss. In May 2012, the Veteran disputed the RO’s findings. In March 2019, the Veteran testified at a hearing before a Veterans Law Judge who is no longer employed by the Board. A transcript of that hearing has been associated with the claims file. In November 2020, the Board notified the Veteran that he had the right to another Board hearing, and that if he did not respond to the Board’s letter within 30 days, the Board would assume that he did not wish another hearing. It has now been more than 30 days and the Veteran has not requested another hearing. Thus, the Board will assume he does not want one, and will adjudicate his claims. Pursuant to a September 2019 Board decision, this matter was remanded for additional development to include scheduling the Veteran for new VA examinations. As the requested development is now complete, this matter has been returned to the Board for appellate consideration. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2018). Copies of compliant VCAA notices were located in the claim’s file. VA’s duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Veteran nor his representative has 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 duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Increased Ratings, Generally Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. The Court has held that staged ratings are appropriate for initial rating and increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness which causes additional disability beyond that reflected on range of motion measurements must be considered. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Consideration must also be given to weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45 (2018). Additionally, evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14. However, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. Id.; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment). When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an evaluation in excess of 30 percent disabling for right knee replacement from October 1, 2012 forward The Veteran asserts he is entitled to an evaluation in excess of 30 percent from October 1, 2012 forward. After a thorough review of the evidence, the Board finds that the preponderance of the evidence of record demonstrates that a rating in excess of 30 percent is not warranted at any time during the appeal period. As a preliminary matter, the Board notes that before October 1, 2012, the Veteran’s right knee disability was evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5010. That section provides that arthritis due to trauma is to be evaluated as degenerative arthritis pursuant to Diagnostic Code 5003. Diagnostic Code 5003 indicates that degenerative arthritis substantiated by x-ray findings is to be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. However, once the Veteran underwent a right total knee replacement and removal tibial interference screw on August 29, 2011, he received a new rating under 38 C.F.R. § 4.71a, Diagnostic Code 5055. At that time, he received a temporary total 100 percent disability rating. Thereafter, the Veteran was awarded an evaluation of 30 percent disabling, effective October 1, 2012. The minimum rating is 30 percent. 38 C.F.R. § 4.71a. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, Diagnostic Code 5055 provides that prosthetic replacement of a knee joint is evaluated as 100 percent for one year following implantation of the prosthesis. The one-year total rating commences after a one-month convalescent rating under 38 C.F.R. § 4.30. Thereafter, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262. The minimum rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a. As of February 7, 2021, under the amended criteria, the Diagnostic Code 5055 (for knee replacement, prosthesis), a 100 percent rating is assigned for 4 months following implantation of prosthesis or resurfacing. An evaluation for 60 percent disabling, is assigned for prosthetic replacement of knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion rate by analogy to diagnostic codes 5256, 5261, or 5262. A minimal evaluation for total knee replacement is 30 percent disabling. Note: At the conclusion of the 100 percent evaluation period, evaluate resurfacing under diagnostic codes 5256 through 5262; there is no minimum evaluation for resurfacing. On examination in February 2016, a current diagnosis of right knee prosthesis was identified. During the clinical interview, the Veteran reported constant knee pain post replacement of the right knee in 2011. Worsening pain occurred with physical activity. On a daily basis, pain averaged at a 4 or 5 on a 10-point scale. With physical activity, it increased to a 9 on a 10-point scale. After onset, pain persisted for several days then returned to baseline. No additional surgeries were reported. Other symptoms included occasional swelling with stiffness. The Veteran endorsed difficulty walking more than a 1/2 mile or standing “more than an hour.” Increased pain occurs with climbing stairs. Flareups of pain were acknowledged. The Veteran described functional impairment as increased pain with ambulation. Range of motion testing revealed flexion limited to 120 degrees and extension limited to 120 degrees. With active motion, the examiner noted right knee flexion was limited to 100 degrees. The Veteran was observed holding the right thigh and pulling it back in order to achieve maximum flexion of 120 degrees. He endorsed pain with this motion. Abnormal range of motion contributed to functional loss in terms an impaired ability to squat and kneel. Pain was observed with flexion and weight bearing. There was no evidence of localized tenderness or pain to palpation of the joint. No additional functional loss was noted with repetitive use testing. The examiner was unable to comment on whether pain, weakness, fatigability or incoordination significantly limit functional ability. Additional factors contributing to the Veteran’s right knee disability included disturbance of locomotion and interference with standing. A slight antalgic gait favoring the right leg was also observed. There was no evidence of muscle atrophy or ankylosis. Muscle strength testing yielded normal findings. Joint stability testing revealed favorable findings of recurrent effusion, described as mild swelling with overuse. Although findings regarding joint stability testing were identified, the examiner noted that artificial joints are not stress tested to prevent prosthesis damage. No meniscal conditions or shin splints were indicated. Prior surgical procedures included a total right knee replacement. Related symptoms were listed as intermediate degrees of residual weakness, pain, or limitation of motion. Other pertinent physical findings included tricompartmental osteoarthritis changes most severe medially and patellofemoral, with significant synovial scarring. A history of anterior cruciate ligament (ACL) reconstruction was also noted. A surgical scar located over the midline right knee running superior to inferior measured as 20 centimeters (cm) in length and 1 cm in width. It was described as well healed, stable and linear. The Veteran denied use of assistive devices. Diagnostic imaging confirmed total right knee replacement, with persistent small joint effusion and otherwise stable appearance. A functional impact was described as an impaired ability to perform job-related tasks that required prolonged walking, climbing stairs, or running. During a Board hearing in March 2019, the Veteran reported worsening pain and difficulty bending his right knee. In September 2019, the Veteran’s claim was remanded for a new VA examination. On examination in December 2019, flare-ups of pain were described as moderate to severe. They were described as constant and precipitated by prolonged standing and walking. Mild relief was endorsed with rest, use of oral prescription medications, and elevation. Functional loss was described as difficulty with prolonged standing and walking. Range of motion testing revealed flexion and extension limited to 70 degrees. Abnormal range of motion does not contribute to functional loss. Pain was observed with flexion and extension, and weight-bearing. There was no evidence of localized tenderness, pain to palpation, ankylosis or crepitus. Additional loss range of motion was described as a reduction of flexion and extension of 10 degrees. Additional factors contributing to the Veteran’s disability include pain and lack of endurance. Pain significantly contributed to functional loss over time with repetitive use. It resulted in an additional loss of range of motion of 20 degrees of flexion and extension. During flare-ups, pain resulted in an additional reduction in range of motion of 30 degrees of flexion and extension. Additional factors contributing to the Veteran’s right knee disability includes less movement than normal. Pain and stiffness contributed to impaired range of motion. Muscle strength testing revealed normal findings. There was no evidence of muscle atrophy or ankylosis. There was no evidence of recurrent effusion, recurrent subluxation, or lateral instability. Joint stability testing yielded normal findings. There was no evidence of recurrent patellar dislocation, shin splints, or a meniscal abnormality. A surgical scar was observed as right knee measuring at 18 cm in length and 1 in width. The Veteran endorsed regular use of a right knee brace and walker. A functional impairment was described as pain, stiffness, limited range of motion, difficulty with bending, prolonged standing, walking, or climbing stairs. Considering the Correia factors, objective evidence of pain with non-weight bearing and passive motion was indicated. On review of the record the Board finds that a higher evaluation is not warranted under either the old or the new rating criteria. In both instances, an evaluation of 60 percent disabling is assigned for prosthetic replacement of knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity. The medical evidence has not documented the required showing. Of note, both criteria direct the rater to evaluate intermediate degrees of residual weakness, pain, and limitation of motion are rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262. However, review of the record fails to show any evidence of ankylosis, recurrent subluxation or lateral instability, flexion limited to 15 degrees, extension limited to 20 degrees, or nonunion of the tibia and fibula with loose motion, requiring brace. In this case, the Veteran’s lay assertions are outweighed by competent and credible medical evidence which evaluated the true extent of his right knee impairment to include consideration of his contentions regarding worsening symptoms. However, in multiple VA examinations the Veteran’s residual symptoms have been described as no worse than intermediate degrees of residual weakness, pain, or limitation of motion improvement. For these reasons, greater evidentiary weight is placed on the examination findings regarding the type and degree of impairment. While the Board is sympathetic to the Veteran’s report of increasing severity of symptoms, the medical evidence does not support a higher evaluation for any point during the appeal period. In addition, the Board notes that his February 2016 statement as to daily pain averaging a 4 or 5, the ability to walk approximately .5 miles and the ability to stand for an hour until an increase in pain causes him to stop, are against severe painful motion or weakness. Moreover, the 2019 examination report reflects that flare-ups cause moderate to severe pain, which is indicative that the baseline is less than severe. 2. Entitlement to a compensable evaluation for bilateral hearing loss The Veteran contends that his service-connected bilateral hearing loss warrants a compensable evaluation. The applicable rating period is from August 31, 2011, one year prior to receipt of the claim, through the present. See 38 C.F.R. § 3.400 (o)(2). The Veteran’s bilateral hearing loss has been rated as noncompensable pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Ratings for hearing loss range from noncompensable to 100 percent based on impairment of hearing acuity as measured by speech discrimination tests (Maryland CNC) and pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Diagnostic Code 6100. The results are charted on Table VI or Table VIA. The rating schedule establishes 11 auditory acuity levels designated from Level I (normal hearing) through Level XI (profound deafness). 38 C.F.R. § 4.85 (h). Table VII prescribes the disability rating based on the relationship between the values for each ear derived from Table VI or VIA. 38 C.F.R. § 4.85. On review of the record, the Board finds that the evidence does not support a higher rating for the service-connected bilateral hearing loss at any time during the appeal period. In this case, the Veteran has been afforded multiple VA examinations. On the authorized audiological evaluation in February 2010 pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 25 20 LEFT 45 50 40 50 55 Pure tone threshold averages were 21.25 dB for the right ear and 48.5 dB for the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 84 percent in the left ear. Mild to moderately severe hearing loss was observed in the left ear only. Functional loss was described as difficulty hearing in the left ear without use of a hearing aid. On subsequent audiological evaluation in September 2011 pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 20 15 15 LEFT 45 50 45 55 50 Pure tone threshold averages were 15 dB for the right ear and 50 dB for the left ear. The examiner entered could not test (or CNT) regarding the Veteran’s speech recognition ability as the results were deemed inappropriate. In the right ear, the Veteran’s hearing was normal. Moderate to moderately severe mixed hearing loss was observed in the left ear only. During the clinical interview, the Veteran reported progressive hearing loss. Other symptoms included frequent ear infections, ear surgeries, and an inability to hear speakers. Considering the above, the Veteran’s hearing impairment was based on pure tone thresholds alone, under Table VI(a) and corresponds with a noncompensable evaluation. During a Board hearing in March 2019, the Veteran endorsed a change in hearing ability since his last examination. Use of broken and outdated hearing aids were acknowledged. In order to hear the television, the Veteran suggested a need to increase the volume higher than normal. Other listeners complained about the loud volume. In September 2019, the Veteran’s claim was remanded for a new VA examination. The Board decision noted that the Veteran was last afforded a VA examination in September 2011. In his notice of disagreement, he reported an inability to hear in his left ear without use of a hearing aid. Specifically, the Veteran reported difficulty hearing in conversations endorsed use higher sound volumes to hear the television. On the authorized audiological evaluation in December 2019, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 20 20 15 LEFT 45 40 35 55 55 Pure tone threshold averages were 17.5 dB for the right ear and 46.25 dB for the left ear. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 96 percent in the left ear. Use of speech discrimination is appropriate for this Veteran. The Veteran’s hearing was normal in the right ear. In the left ear, mixed hearing loss was observed. During the clinical interview, the Veteran described functional loss as an inability to hear in his left ear without use of a hearing aid. Due to the current severity of his symptoms, he was required to turn his head in the direction of a speaker in order to hear and understand speech. The Veteran acknowledged use of significantly increased volume to in order to hear the television. Others are often disturbed by the loud sound. The Veteran described other impairments including difficulty hearing in the presence of background noise. Considering the above, the Veteran’s hearing impairment levels corresponded to Level I in the left and right ear. Intersecting Levels I and I under Table VII results in a noncompensable disability rating. In making all determinations, the Board has fully considered all medical evidence and lay assertions of record. The Board notes that multiple audiological examinations were conducted to access possible changes in the current severity of the Veteran’s hearing loss. The Board further notes that the assignment of disability ratings for hearing impairment is derived from a mechanical formula. See Lendenmann, 3 Vet. App. at 349. While the Board recognizes the Veteran’s competence to report on his current symptoms and their worsening, the evidence of record does not support a compensable rating for any point during the appeal period. Furthermore, under the rating criteria, a noncompensable rating contemplates some degree of impaired hearing, to include difficulty communicating and hearing in the presence of background noise. Although the Board is sympathetic to the Veteran’s complaints of worsening symptoms throughout the appeal period, the medical evidence does not support a compensable evaluation for any point during the appeal period. Conclusion & TDIU For the reasons and bases noted above, increased ratings are not warranted. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for total disability based on individual unemployability due to service-connected disabilities (TDIU) is derivative of an increased-rating claim when the issue of unemployability is raised expressly or implicitly by the record in the course of requesting a higher rating for the service-connected disability. Although the Veteran filed a claim for a TDIU in 2013 and 2014, and indicated that he stopped working in April 2014, his claim was denied by the RO in November 2014, and the Veteran did not file a timely notice of disagreement. More importantly, a January 2018 VA clinical record reflects that he is still employed as an electrician, and an August 2019 record notes that he was having difficulty with his job as an electrician, but that he is still employed. The evidence of record does not reflect that his employment is less than substantial gainful employment, or that at any time during the rating period on appeal, his service-connected disabilities (singly or in combination) precluded substantial gainful employment consistent with his work experience as an electrician and his ability to be a supervisor, as he has been noted to have been. Thus, the Board finds that a TDIU is not warranted. T. WISHARD Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Whitaker, 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.