Citation Nr: 21021505 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-03 182 DATE: April 13, 2021 ORDER Entitlement to a rating in excess of 20 percent for bilateral hearing loss prior to April 6, 2016, is denied. Entitlement to a rating in excess of 40 percent for bilateral hearing loss as of April 6, 2016, and prior to December 13, 2019, is denied. Entitlement to an initial rating in excess of 60 percent for bilateral hearing loss as of December 13, 2019 is denied. Entitlement to an initial rating in excess of 10 percent for a right ankle disability is denied. FINDINGS OF FACT 1. The Veteran's bilateral ear hearing loss has been shown to be manifested by no worse than right ear Level VI hearing impairment, left ear Level IV hearing impairment, and difficulty understanding conversations prior to April 6, 2016. 2. The Veteran's bilateral ear hearing loss has been shown to be manifested by right ear Level VIII hearing impairment, left ear Level VII hearing impairment, and difficulty hearing as of April 6, 2016. 3. The Veteran's bilateral ear hearing loss has been shown to be manifested by Level IX hearing impairment in both ears and difficulty with speech clarity, strained communication, and auditory fatigue, as of December 13, 2019. 4. The Veteran's right ankle disability has been shown to be manifested by no worse than moderate limitation of movement with pain on movement throughout the appeal period. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a bilateral hearing loss disability prior to April 6, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for a rating in excess of 40 percent for a bilateral hearing loss disability, as of April 6, 2016, and prior to December 13, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 3. The criteria for a rating in excess of 60 percent for a bilateral hearing loss disability, as of December 13, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 4. The criteria for a rating in excess of 10 percent for a right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5003-5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the original Agency of Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The Veteran appeared at an April 2019 hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. In August 2019, the Board remanded the issues of entitlement to an initial rating in excess of 20 percent for bilateral hearing loss, entitlement to an initial rating in excess of 10 percent for a right ankle disability, and entitlement to service connection for a right eye disability for further development. A January 2021 rating decision established entitlement to service connection for a right eye disability. As that grant of service connection constitutes a full grant of the benefit sought, that issue is no longer on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating Entitlement to increased ratings for bilateral hearing loss The Veteran claims that bilateral hearing loss disability is worse than the current ratings indicate. Service connection for bilateral hearing loss was established in an October 2013 rating decision. On appeal, a January 2021 rating decision assigned increased ratings of 40 percent from April 6, 2016, and 60 percent from December 13, 2019. Ratings for bilateral hearing loss range from 0 percent to 100 percent based on the degree of organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1000, 2000, 3000, and 4000 cycles per second. The Rating Schedule establishes eleven auditory acuity levels designated from Level I for essentially normal auditory acuity to Level XI for profound deafness. The ratings derived from the rating schedule are intended to make allowance for improvement by hearing aids. 38 C.F.R. § 4.85, Diagnostic Code 6100. When the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 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). When the 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). On the authorized audiology evaluation in October 2013, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 60 95 105 LEFT 15 25 60 70 80 Speech audiometry found speech recognition ability of 72 percent in the right ear and of 76 in the left ear. Right ear average hearing loss was 74 decibels and left ear average hearing loss was 59 decibels. Therefore, the right ear has a Level VI hearing impairment and the left ear has a Level IV impairment. That hearing loss disability warrants the assignment of a 20 percent rating under Diagnostic Code 6100. The examiner found that the bilateral hearing loss disability would have a significant impact on the Veteran’s occupation activities. On the authorized audiology evaluation in April 2016, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 65 95 105 LEFT 15 40 65 70 85 Speech audiometry found speech recognition ability of 56 percent in the right ear and of 52 in the left ear. Right ear average hearing loss was 76.25 decibels and left ear average hearing loss was 65 decibels. That level of hearing results in a Level VIII hearing impairment of the right ear and a Level VII impairment of the left ear. That hearing loss disability warrants the assignment of a 40 percent rating under Diagnostic Code 6100. The examiner found no occupational impairment from the bilateral hearing loss disability. A VA hearing assessments of February 2017 and April 2019 did not use the Maryland CNC Word Recognition test to measure speech discrimination, therefore the results are not valid for VA rating purposes. During an April 2019 hearing before the Board, the Veteran testified that he continued to have trouble hearing although he used hearing aids. He believed that the hearing loss caused vertigo and it caused him stress. VA treatment records of November 2019 show that the Veteran requested a Maryland CNC test. Records show that the score was 64 percent in the right ear and 76 percent in the left ear. On the authorized audiology evaluation in December 2019, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 75 100 100 LEFT 20 40 65 75 95 Speech audiometry found speech recognition ability of 46 percent in the right ear and of 38 in the left ear. The right ear shows average hearing loss of 78.75 decibels in the right ear and 68.75 decibels in the left ear. Those audiological findings do not present an exceptional pattern of hearing impairment under the provisions of 38 C.F.R. § 4.86. The examination result show Level IX hearing impairment in each ear. That hearing loss disability warrants the assignment of a 60 percent rating under Diagnostic Code 6100. The Board in no way discounts the difficulties that the Veteran experiences as a result of bilateral hearing loss. However, it must be emphasized that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. The Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Lay persons are competent to provide opinions on some medical issues Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, in this case, a lay opinion falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent that the Veteran contends that his hearing loss is more severe than currently rated, while he is competent to report symptoms such as difficulty understanding speech, he is not competent to report that his hearing acuity is of sufficient severity to warrant a certain percentage rating because such an opinion requires medical expertise and training in evaluating hearing impairment, which he does not possess, and the use of audiometric equipment. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Based upon the results from the VA examinations, the Board finds that the criteria for higher ratings for bilateral hearing loss have not been met. 38 C.F.R. §§ 4.85, 4.86. The Board finds that the preponderance of the evidence is against the claim for increased ratings and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to an initial rating in excess of 10 percent for a right ankle disability Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). When rating musculoskeletal disabilities based on limitation of motion, the Board must consider functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.40. The Board must also consider whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Nonetheless, even when the background factors listed in 38 C.F.R. § 4.40 or 38 C.F.R. § 4.45 are relevant when rating a disability, the rating is assigned based on the extent to which motion is limited. A separate or higher rating under 38 C.F.R. § 4.40 or 38 C.F.R. § 4.45 is not appropriate. Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016). During the pendency of the appeal, the rating criteria for rating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). Those amendments revised select diagnostic codes to ensure that the portion of the rating schedule used current medical terminology and provided detailed and updated criteria for the rating of musculoskeletal disabilities. 85 Fed. Reg. 230 (Nov. 30, 2020). 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 both the old and new rating criteria as of February 7, 2021. The criteria that are more favorable to the Veteran will be applied. Prior to the regulatory change, Diagnostic Code 5271 provided that limitation of motion of an ankle warranted a 10 percent rating when moderate and a 20 percent rating when marked. 38 C.F.R. § 4.71a. As of February 7, 2021, under the amended criteria for Diagnostic Code 5271, the terms moderate and marked are defined. The new criteria provide that limitation of motion of an ankle warrants a 10 percent rating when moderate (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion); and a 20 percent rating when marked (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). An October 2013 rating decision established service connection for a right ankle disability, and assigned a 10 percent rating effective January 26, 2012. The right ankle disability was rated under Diagnostic Code 5003-5271. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after the hyphen. Regulations provide that when a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely-related disease or injury, in which both the functions affected and the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The Board notes that the right ankle disability has been manifested by pain, weakness, stiffness, tenderness, and reduced range of motion which is best rated on the basis of limitation of motion of the right ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. The evidence of record does not show ankylosis of the ankle in plantar flexion (Diagnostic Code 5270), ankylosis of subastragalar or tarsal joint (Diagnostic Code 5272), malunion of the os calcis or astragalus (Diagnostic Code 5273), or astragalectomy (Diagnostic Code 5274), so as to support higher ratings under those Diagnostic Codes. 38 C.F.R. § 4.71a. Additionally, there is no showing or allegation that the right ankle has ever been replaced. The Veteran has a diagnosis of osteoarthritis of the ankle. However, the Veteran has been rated based on limitation of ankle motion under Diagnostic Code 5271. Consequently, a separate rating for arthritis of the right ankle is prohibited under previous and revised criteria for Diagnostic Code 5003 or 5010. A rating for arthritis cannot be combined with a rating for limitation of motion of the same joint, and the highest rating for arthritis of the ankle would be 10 percent, which is not more advantageous to the Veteran. 38 C.F.R. § 4.71a. Ratings for a joint based on limitation of motion require consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint. 38 C.F.R. §§ 4.40, 4.45. Thus, a higher rating may be assigned if there is additional limitation of motion from pain or limited motion on repeated use of the joint. DeLuca v. Brown, 8 Vet. App. 202 (1995). Also, with any form of arthritis, painful motion is a factor to be considered. Painful motion of a joint with periarticular pathology is to be at rated at least at the minimum compensable rating for the joint. 38 C.F.R. § 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnston v. Brown, 10 Vet. App. 80 (1997); Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Burton v. Shinseki, 25 Vet. App. 1 (2011). With the foot at a 90 degree angle to the ankle as the neutral or starting position, a normal or full range of ankle motion is defined as from 0 degrees to 20 degrees of dorsiflexion and from 0 degrees to 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. The terms moderate, moderately severe, and marked, as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities prior to recent amendments. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that Board decisions are equitable and just. 38 C.F.R. § 4.6. At an October 2013 VA examination, the Veteran reported a fall in service followed by ankle surgery. He described experiencing right ankle pain and flare-ups with worse pain in the morning and with prolonged walking. The examiner observed right ankle dorsiflexion from 0 to 10 degrees. Plantar flexion was from 0 to 45 degrees. There was evidence of pain on dorsiflexion, but without further limitation of motion. After repetitive use, the examiner observed pain on movement, disturbance of locomotion, and less movement than normal. However, the examiner noted no additional limitation of motion. There was no ankylosis. Right ankle instability was not suspected. The Veteran constantly used a cane. X rays showed osteoarthritis. The Veteran’s private orthopedist submitted a September 2014 letter stating that the veteran reports daily ankle pain. At an April 2016 VA examination, the Veteran reported experiencing chronic right ankle pain. He reported flare-ups when the chronic pain is aggravated in the morning and randomly. He stated that he has to use a cane for ambulation. The examiner observed right ankle dorsiflexion from 0 to 20 degrees. Plantar flexion was from 0 to 30 degrees. There was pain throughout all ranges of motion, more pronounced on dorsiflexion. There was evidence of pain with weight-bearing. The examiner noted tenderness at the medial malleolus. There was no objective evidence of crepitus. After repetitive use, there was no additional loss of function or motion. The examiner observed a moderate varus deformity. There was no ankylosis. Right ankle instability or dislocation was not suspected. The Veteran constantly used a cane and occasionally uses a brace when the ankle is too painful. X-rays were taken, showing arthritis. The examiner found that difficulty with ambulation affected the Veteran’s ability to perform occupational activities. In January 2021, the examiner provided an addendum to the April 2016 examination report. The examiner clarified that pain, weakness, fatigability, or incoordination did not limit functional ability with repeated use over a period of time or limit functional ability with flare-ups. Further, the examiner stated that the Veteran had no additional limitations during flare-ups or with repeated use over time. The Veteran testified at an April 2019 hearing before the Board that he uses prescriptions medications for ankle pain and for disturbed sleep due to ankle pain. He wears shoes or boots with high tops for ankle support in addition to wearing an ankle brace. At a December 2019 VA examination, the Veteran reported having random sharp right ankle pain, numbness, stiffness at rest, and pain with prolonged walking and standing. He stated that he had fallen when the pain suddenly occurred. The Veteran constantly used a cane and ankle brace. He denied flare-ups, but reported that he can’t walk much because he fears falling. The examiner measured right ankle dorsiflexion from 0 to 15 degrees. Plantar flexion was from 0 to 30 degrees. Pain was noted on all ranges of motion, causing functional loss, but not further limiting motion. There was no evidence of pain with weight-bearing. There was no objective evidence of crepitus. After repetitive use, there was no additional loss of function or motion. Over time, the examiner estimated that pain, weakness, and lack of endurance would not limit functional ability or motion. There was no ankylosis. Right ankle instability or dislocation was not suspected. The examiner further found that there was objective evidence of pain on passive range of motion testing and on non-weight bearing testing of the right ankle. Under the previous criteria for Diagnostic Code 5271, the Board finds that a rating higher than 10 percent for the right ankle disability is not warranted at any point. The Board finds that the competent lay and medical evidence does not demonstrate marked limitation of motion of the right ankle throughout the appeal period as the Veteran had movement in his right ankle, and no medical professional has concluded that his reduced range of motion was markedly limited as required for a higher rating. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Even considering the lay evidence, the Board finds that evidence is also silent on any explicit complaints of immobilization, but instead report pain on movement. Therefore, the Board finds that marked limitation of motion is not present at any point during the relevant period leading to the present. Consequently, the Board finds that the preponderance of the evidence is against the assignment of a rating higher than 10 percent throughout the period on appeal and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5271. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Duke, 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.