Citation Nr: 21024240 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-59 034 DATE: April 22, 2021 ORDER Entitlement to a compensable evaluation for left ear hearing loss is denied. Entitlement to an evaluation in excess of 10 percent for left knee strain is denied. Entitlement to an initial evaluation in excess of 10 percent for right knee strain is denied. FINDINGS OF FACT 1. For the period on appeal, the Veteran has, at worst, Level I hearing acuity in his service-connected left ear. 2. For the period on appeal, the Veteran’s left knee strain is manifested by no worse than 105 degrees flexion with complaints of painful motion. 3. For the period on appeal, the Veteran’s right knee strain is manifested by no worse than 115 degrees flexion with complaints of painful motion. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.20, 4.31, 4.86, Diagnostic Code 6100. 2. The criteria for an evaluation in excess of 10 percent for left knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 3. The criteria for an initial evaluation in excess of 10 percent for right knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1978 to July 2009. This case is before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision by a RO of the Department of Veterans Affairs (VA). In January 2020, the Veteran testified before the undersigned Veterans Law Judge and a copy of the transcript is of record. In April 2020, the Veteran revoked his representative and indicated that he wished to represent himself. Increased Rating Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. 1. Entitlement to a compensable evaluation for left ear hearing loss The Veteran contends that he is entitled to a compensable evaluation for his left ear hearing loss. He reports that after hearing certain tones, he has to sit down because of balance issues that make him feel distorted. See January 2020 Board Hearing. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). If impaired hearing is service-connected in only one ear, the law allows for compensation for hearing loss as if both ears were service-connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non-service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, unless the non-service-connected hearing loss is the result of the Veteran’s willful misconduct. See 38 C.F.R. § 3.383. To determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). The Veteran was afforded a June 2015 VA examination. He reported that he could not hear and had to lean forward to hear clearly. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). His Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: June 2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 20 15 30 24 100% LEFT 30 25 25 30 28 100% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. At the January 2020 Board hearing, the Veteran testified that after hearing certain tones, he has to sit down because of balance issues that make him feel distorted. An October 2020 VA examination reveals that the Veteran reported difficulty hearing people speak and sensitivity to loud noises. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: October 2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 25 30 35 29 94% LEFT 25 30 35 40 33 96% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran’s left ear hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the inability to hear a person speak and noise sensitivity. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for left ear hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The issue of consideration of an extraschedular rating was raised during the January 2020 Board hearing when the Veteran reported issues with vertigo and balance due to his service-connected left ear hearing loss. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran’s disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant’s symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran’s disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In regard to the first element, comparison of the Veteran’s symptoms and associated functional impairment shows that the rating criteria do not adequately describe his disability picture. When 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. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). In this case, the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech, but do not contemplate the Veteran’s reported symptom of vertigo. As for balance issues, the Veteran is currently service-connected for left and right knee disabilities that contemplate functional impairment. Pertinent to his reported symptom of vertigo attributed to left ear hearing loss, as the rating criteria does not contemplate this symptom, the first element of Thun is met. In regard to the second Thun element, although the available schedular evaluations are inadequate to rate the Veteran’s vertigo, the exceptional disability picture does not exhibit other related factors, such as marked interference with employment or frequent periods of hospitalization. The Veteran’s vertigo is not so severe as to cause marked interference with employment or frequent hospitalizations. He has been retired since 2009. The record does not include any hospitalizations for vertigo or left ear hearing loss. Further, the Veteran has not alleged, and there is no indication, that his hearing loss causes marked interference with employment. Therefore, the Board concludes that the Veteran’s disability picture does not exhibit other related factors such as marked interference with employment or frequent periods of hospitalization that would warrant further extraschedular consideration. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 115-16. Therefore, the Board finds that referral to the Director, Compensation Services for extraschedular consideration is not warranted. 2. Entitlement to an evaluation in excess of 10 percent for left knee strain 3. Entitlement to an initial evaluation in excess of 10 percent for right knee strain The Veteran contends that he is entitled to higher ratings for left and right knee strain disabilities because of pain and aches in both knees. See October 2014 VA Form 21-4138. The Veteran’s left and right knee strains are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for limitation of flexion of the leg. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. Other diagnostic codes relating to the knee are Diagnostic Code 5256 for ankylosis, Diagnostic Codes 5258 and 5259 for symptomatic dislocation or removal of semilunar cartilage, Diagnostic Code 5262 for impairment of tibia and fibula, and Diagnostic Code 5263 for genu recurvatum. As these conditions are not shown on examination, or in the medical evidence of record, the Board finds that application of these diagnostic codes is not warranted. 38 C.F.R. § 4.71a. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of 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. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran was afforded a VA knee and lower leg conditions examination in June 2015. He reported joint pain treated with over the counter medication and use of knee braces, but denied flare-ups. Diagnoses of right knee strain, and bilateral degenerative arthritis were provided. On examination, range of motion was abnormal showing left knee flexion limited to 120 degrees, extension limited to zero degrees. For the right knee, flexion was limited to 130 degrees and extension limited to zero degrees. Range of motion did not contribute to functional loss. Pain was noted on left and right knee flexion. There was no evidence of pain with weight bearing, localized tenderness, or crepitus in the left or right knee. As for observed repetitive use, the Veteran was able to perform repetitive use tests with at least three repetitions with no additional functional loss in both left and right knees. Repeated use over time tests showed no pain, weakness, fatigability, or incoordination limiting functional ability with repeated use over time in both knees. For the left knee, the examiner noted additional contributing factors of a slight limp due to pain. Muscle strength tests for both knees were normal. There was no evidence of muscle atrophy, ankylosis, or joint instability in either knee. As for functional impact, the Veteran has been retired from the Marine Corp since 2009. His knee conditions limit prolonged walking. The Veteran testified at a January 2020 Board hearing that his knee disabilities have worsened since his last VA examination. He reported that his ability to take care of his daily chores has become limited and he is doing things much slower now. He reported constant pain and agony in his joints, to include swelling at times. The Veteran also stated that he needs braces and a cane for locomotion. The Veteran was afforded a VA knee and lower leg conditions examination in September 2020. He reported that his conditions had worsened as he had more difficulty turning, walking, going out, climbing stairs, standing, and sitting. He reported use of a shower bench while bathing, multiple falls, an antalgic gait, and walking with a limp. As for current symptoms, he reported stiffness and pain. The Veteran reported left and right knee flare-ups described as sharp pain, and functional impairment. On examination, range of motion of the left knee was abnormal with flexion limited to 120 degrees and extension limited to 10 degrees. As for the right knee, range of motion was abnormal with flexion limited to 125 degrees and extension limited to 5 degrees. Left and right knee pain was noted on examination causing additional functional loss on flexion and extension. There was objective evidence of localized tenderness described as shooting pain and pain with weight-bearing, but no crepitus. The Veteran was unable to perform repetitive-use tests with at least three repetitions due to fear of pain. As for repeated use over time, the Veteran was not examined immediately after repetitive use of right and left knees, but the examiner found that the examination was medically consistent with the Veteran’s statements describing functional loss. For left knee repeated use and flare-ups, pain, fatigue, weakness, lack of endurance, and incoordination caused functional loss described as flexion limited to 105 to 110 degrees and extension limited to 10 degrees. For right knee repeated use and flare-ups, pain, fatigue, weakness, lack of endurance, and incoordination caused functional loss described as flexion limited to 115 degrees and extension limited to 5 degrees. Muscle strength tests of the left knee showed reduced strength of 3 out of 5 in flexion and extension. For the right knee, muscle strength tests showed reduced muscle strength of 4 out of 5 in flexion and extension. There was no evidence of atrophy, ankylosis, subluxation, or joint instability. The Veteran reported constant use of knee braces and occasional use of a cane. Also of record are VA medical records which reflect the Veteran reporting knee pain. These records do not reflect symptomology worse than what is described in VA examinations of record. In assessing the evidence of record, the Board acknowledges the Veteran is competent to provide evidence regarding the lay observable symptoms associated with his knee disability. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). However, he is not competent to identify a specific level of disability of his knee disabilities according to the appropriate Diagnostic Code. Such competent evidence concerning the nature and extent of the Veteran’s knee disabilities have been provided by VA medical professionals who have objectively examined him. The medical findings directly address the criteria under which the knee disabilities are evaluated. Id. The medical findings directly address the criteria under which the knee disabilities are evaluated. The Board finds these clinical records to be competent, objective, and probative evidence of record, and are therefore accorded greater weight than the Veteran’s subjective complaints of increased symptomatology. Even when considering the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59, as well as the symptoms reported in the light most favorably to the Veteran, the evidence does not show the functional equivalent of disability required for a higher evaluation. Based on the foregoing, the Board finds that ratings higher than 10 percent for left and right knee disabilities are not warranted. Here, at worst, left knee limitation of flexion has been limited to105 degrees with pain. See October 2020 VA Examination Report. As for the right knee, at worst, limitation of flexion has been limited to 115 degrees with pain. Id. Therefore, because knee flexion is not limited to 30 degrees or less, an increased rating is not warranted based on objective clinical findings showing decreased range of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5260. To the extent the Veteran has reported, and objective evidence has demonstrated, pain associated with motion of left and right knees, the 10 percent ratings already assigned contemplate painful motion. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Therefore, ratings higher than the 10 percent each disability is already assigned are not warranted by the record.   Accordingly, entitlement to disability ratings in excess of 10 percent for left and right knee strains are denied. In denying the claims, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Baker, 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.