Citation Nr: 21015599 Decision Date: 03/18/21 Archive Date: 03/17/21 DOCKET NO. 16-48 911 DATE: March 18, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for a left knee disability is remanded. Entitlement to an initial rating in excess of 10 percent for a right knee disability is remanded. FINDING OF FACT Audiometric testing conducted during the period on appeal reflects that the Veteran had no worse than Level I hearing loss in the right and left ears. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1998 to November 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, granted service connection for left and right knee disabilities and assigned noncompensable ratings, effective March 21, 2011, and continued the noncompensable rating for bilateral hearing loss. In April 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was previously before the Board in October 2020. At that time, the Board denied service connection for acquired hemophilia, lymph node cancer, and a thyroid disability. In addition, the Board remanded the claims of entitlement to initial compensable ratings for left and right knee disabilities and a compensable rating for bilateral hearing loss for further evidentiary development, to include VA examinations. The Board notes that the Veteran’s Notice of Disagreement also included the issues of entitlement to service connection for psychosis for the purpose of establishing eligibility for treatment under 38 U.S.C. § 1702 and entitlement to service connection for a left ankle disability. These issues were included in the September 2016 Statement of the Case (SOC). As the Veteran’s VA Form 9 indicated that he wished to limit his appeal to the issues discussed immediately above, the issues of entitlement to service connection for psychosis for the purpose of establishing eligibility for treatment under 38 U.S.C. § 1702 and entitlement to service connection for a left ankle disability are not before the Board on appeal. The Board also notes that in a November 2020 rating decision, the RO increased the ratings for the Veteran’s left and right knee disabilities to 10 percent, effective March 21, 2011, and stated that such was a full grant of the benefits sought on appeal. Thus, the issues were not addressed in a Supplemental Statement of the Case. However, this was in error. The Board observes that, although higher ratings were granted, the issues remain in appellate status, as the maximum schedular ratings were not assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Entitlement to a compensable rating for bilateral hearing loss is denied. The Veteran contends that his hearing loss is more severe than currently rated. See April 17, 2020 Transcript of Hearing, pages 12, 13. Impairment of auditory acuity (hearing loss) is evaluated pursuant to the provisions set forth at 38 C.F.R. § 4.85. Under that regulation, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are to be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). To evaluate the degree of disability from defective hearing, the Rating Schedule establishes 11 auditory acuity levels from Level I, for essentially normal acuity, through Level XI, for profound deafness. These are assigned based on a combination of the percent of speech discrimination and the pure tone threshold average, as contained in a series of tables within the regulations. 38 C.F.R. § 4.85(b). The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIA. 38 C.F.R. § 4.85(d). Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). 38 C.F.R. § 4.85(f). The regulatory provisions also provide two additional circumstances under which alternative tables can be employed. One is where the pure tone thresholds of the frequencies of 1000, 2000, 3000, and 4000 Hz are 55 decibels or greater. The second is where pure tone thresholds are 30 decibels or less at frequencies of 1000 Hz, and are 70 decibels or more at 2000 Hz. 38 C.F.R. § 4.86. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Upon weighing the evidence of record, the Board finds that the preponderance of the evidence is against the award of a compensable rating for bilateral hearing loss. The Veteran was seen for a VA audiological evaluation in June 2011. The pure tone thresholds were reported in graph form. The U.S. Court of Appeals for Veterans Claims (Court) has held that interpretation of a graphical audiogram is a finding of fact, to be made by the Board in the first instance. Kelly v. Brown, 7 Vet. App. 471 (1995). Here, the graph reflects that the Veteran’s pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 45 35 35 30 LEFT 30 25 20 35 30 The 1000-4000 Hertz average was 36.25 decibels in the right ear and 27.50 in the left. Speech discrimination testing showed 92 percent correct in the right ear and 88 percent in the left ear. There is no indication that the speech discrimination test was performed using the Maryland CNC word list. At the time of the evaluation, the Veteran reported having a loss of hearing and tinnitus bilaterally, as well as fullness and episodes of dizziness which caused him to feel nauseous and could last for several minutes. An August 2011 VA treatment record noted that the Veteran had been referred for bilateral hearing loss associated with dizziness. The Veteran reported momentary dizziness, which lasted a few seconds. He reported 4 to 5 such episodes during the last 5 years. The Veteran reported that sometimes the episodes were associated with sneezing, however, he reported sneezing often without dizziness. No history of ear disorder, including ear trauma, surgery, or head injury was noted. It was noted that the clinical picture was not suggestive of Meniere’s disease and there was “no reason to treat at this point.” The Veteran was medically cleared for hearing aids. See August 2011 Otolaryngology Consult. The Veteran was afforded a VA examination for hearing loss in April 2016. Pure tone thresholds, in dB, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 55 55 50 55 LEFT 55 45 55 55 55 The 1000-4000 Hertz average was 53.75 decibels in the right ear and 52.50 in the left. Speech recognition using the Maryland CNC word list was 94 percent in the right ear and 94 percent in the left. These findings are equivalent to Level I hearing loss in the right ear and Level I in the left. See 38 C.F.R. § 4.85, Table VI. When applied to Table VII, this warrants a noncompensable rating. Id., Table VII. At the April 2020 Board hearing, referenced above, the Veteran testified that “speech [wa]s really muttered for conversation, loud noises” and that he wore hearing aids “semi-regularly.” He also testified that he had to turn the volume all the way up on the telephone in order to hear. See April 17, 2020 Transcript of Hearing, pages 12, 13. Pursuant to the Board’s October 2020 remand instructions, the Veteran was afforded a VA examination in November 2020. Pure tone thresholds, in dB, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 40 40 40 LEFT 25 30 35 35 35 The 1000-4000 Hertz average was 37.50 decibels in the right ear and 33.75 in the left. Speech recognition using the Maryland CNC word list was 98 percent in the right ear and 94 percent in the left. These findings are equivalent to Level I hearing loss in the right ear and Level I in the left. See 38 C.F.R. § 4.85, Table VI. When applied to Table VII, this warrants a noncompensable rating. Id., Table VII. The Board has carefully reviewed the remaining record in its entirety, but finds no other probative evidence of record showing that the Veteran’s hearing loss disability is more severe for compensation purposes during the period on appeal than demonstrated on the audiological evaluations discussed above. The Board has considered the Veteran’s description of his hearing loss disability, to include his competent report that he has difficulty hearing people speak, especially on the phone, and that he wears hearing aids. Although the Board finds his reports to be credible, disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In this case, as explained above, the numeric designations correlate to the current disability ratings. Moreover, the rating criteria contemplate the Veteran’s reported decreased hearing acuity and difficulty in understanding conversational speech. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) ([W]hen a claimant’s hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria). The Board further finds that other than difficulty hearing or understanding speech, the record on appeal contains no evidence of other symptoms attributable to the service-connected hearing loss, such as vertigo or ear pain, not contemplated by the rating criteria. While the Board notes the Veteran’s reports of dizziness in 2011, the Veteran was examined at that time and a VA physician determined that the clinical picture was not suggestive of Meniere’s disease. Additionally, there have not been any objective findings during the appeal period, and the Veteran has not contended otherwise. Notably, the Veteran has not reported such symptoms since 2011. To the extent that the Veteran experienced dizziness in 2011 which was attributable to his hearing loss, compensation would not be warranted because there have been no objective findings since that time and the Veteran has pointed to no functional impairment of earning capacity, nor is there any indication of the severity, frequency, or type of impairment, if any, caused by the reported dizziness. The Board has also considered the Veteran’s reports of tinnitus, but notes that service connection is already in effect for that disability and the rating assigned is not at issue in this appeal. The Board may not consider symptoms associated with other service-connected disabilities in rating the Veteran’s hearing loss as that would result in impermissible pyramiding. 38 C.F.R. § 4.14. For these reasons, the Board finds that the preponderance of the evidence is against the award of a compensable rating for bilateral hearing loss. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for a left knee disability is remanded. 2. Entitlement to an initial rating in excess of 10 percent for a right knee disability is remanded. Regarding the increased rating claims for the Veteran’s bilateral knee disabilities, 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. Relevant to the matter are the changes to DC 5257, other impairment of the knee, which address recurrent subluxation and instability. The Veteran has reported subjective instability of the knees on multiple occasions during the period on appeal. As such, the Board finds that the Veteran should be afforded a new knee examination to both determine the current severity and manifestations of his service-connected knee disabilities and provide the necessary information to determine whether the old or new regulations will be more favorable to the Veteran for the period February 7, 2021, to the present. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257); see also Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003). Accordingly, the matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician regarding the severity and manifestations of his service-connected bilateral knee disabilities. Access to the claims file must be made available to the examiner for review in connection with the examination. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria in effect prior to February 7, 2021, and the rating criteria in effect thereafter, to include the severity of any instability. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and following repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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). Clearly elicit from the Veteran the extent of his reported knee instability and the functional impairment associated with said instability. Clearly identify any and all assistive devices used by the Veteran throughout the appeal and ascertain from the Veteran whether any such devices were prescribed by a treating clinician. Comment upon whether the Veteran has suffered from the below, or symptomatology/disability equivalent to the below: Recurrent subluxation or instability: Unrepaired or failed repair of complete ligament tear causing persistent instability (*) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. (*) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation (*) Sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation Patellar instability: (*) A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker (*) A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker (*) A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker (*) Note, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. (*) Note, A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ruddy, 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.