Citation Nr: 21015145 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 19-22 679 DATE: March 16, 2021 ORDER Service connection for right knee trauma residuals is granted. Service connection for left knee trauma residuals is granted. An initial compensable rating for bilateral hearing loss since June 28, 2016, is denied. FINDINGS OF FACT 1. Right knee pain and crepitus, which cause functional impairment, were caused by in-service parachute jumps. 2. Left knee pain and crepitus, which cause functional impairment, were caused by in-service parachute jumps. 3. Since June 28, 2016, the Veteran’s hearing impairment was no worse than Level II in the right ear and Level II in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee trauma residuals have been met. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for service connection for left knee trauma residuals have been met. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for an initial compensable rating for bilateral hearing loss since June 28, 2016, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army from April 1954 to April 1957. His military decorations include the Parachutist Badge. On his July 2019 VA Form 9, the Veteran requested a videoconference hearing. In May 2020, the Veteran withdrew his hearing request. Therefore, the Board will proceed to adjudicate the case based on the evidence of record. The Board acknowledges that the National Personnel Records Center (NPRC) reported that the Veteran’s records may have been destroyed in a fire at the Records Center in 1973. The Veteran was notified and submitted medical and lay evidence. Entitlement to service connection for right and left knee disorders. Although the RO framed these issues on appeal as those requiring new and material evidence, the December 2017 notice of disagreement (NOD) was submitted within one year of the original denial of service connection in February 2017. Therefore, that NOD serves as an appeal of the February 2017 denial and no new and material evidence is required. Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection may 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 generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In February 2019, the Veteran was afforded a VA knees examination. The examiner stated that the Veteran had knee pain which began in 1957 as a result of in-service parachute jumps. The examiner noted that there was evidence of crepitus in both knees and indicated that pain caused functional loss with repeated use over time and during flare-ups. The VA examiner opined that right and left knee pain were caused by parachute jumps in service. As the Veteran has right and left knee pain and crepitus which causes functional impairment and was caused by service, service connection is warranted and the appeals are granted. Entitlement to an initial compensable rating for bilateral hearing loss since June 28, 2016. Hearing loss is rated under 38 C.F.R. §§ 4.85, 4.86, diagnostic code 6100. Under diagnostic code 6100, hearing impairment evaluations are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmen v. Principi, 3 Vet. App. 345, 349 (1992). The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears. See 38 C.F.R. § 4.85. The rating schedule allows for each ear to be evaluated separately where there is an exceptional pattern of hearing impairment. 38 C.F.R. § 4.86. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). In June 2017, the Veteran was afforded a VA audiology examination. The Veteran exhibited, pure tone thresholds, in decibels, as follows: 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Average Right Ear 35 35 50 50 42.50 Left Ear 30 35 50 45 40.00 Speech audiometry revealed speech recognition ability of 86 percent in the right ear and 86 percent in the left ear. Applying those values to the rating criteria results in a numeric designation of Level II in both ears. 38 C.F.R. § 4.85, Table VI. Application of the levels of hearing impairment in each ear to Table VII produces a noncompensable rating. 38 C.F.R. § 4.85. In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report. Martinak v. Nicholson, 21 Vet. App. 447 (2007). The examiner noted in the report the Veteran’s statements that his wife had to speak loudly to him and that he often had to ask people to repeat themselves. The VA examiner clearly identified the effects that the Veteran’s bilateral hearing loss disability had on his daily activities in his own words. Therefore, the Board finds that the VA audiology examination complied with the requirements of Martinak. Additionally, there is no evidence that the Veteran’s hearing loss meets the requirements of an exceptional disability such that it should be analyzed under 38 C.F.R. § 4.86. The Board is cognizant of the Veteran’s assertion of his difficulty hearing and has considered the statements he made at the June 2017 VA examination about the impact his hearing loss has on his daily life. However, disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the Veteran’s audiometric test results. See Lendenmann, 3 Vet. App. at 349. The Veteran’s audiometric testing results indicated a noncompensable rating. The Veteran has not asserted that his hearing worsened since that examination. Therefore, an initial noncompensable rating is warranted during the entire period on appeal. The appeal is denied. Jacqueline E. Miller Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ivan Franklin 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.