Citation Nr: 21026844 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-21 102 DATE: May 4, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. Entitlement to a disability rating greater than 10 percent for degenerative joint disease of the right knee is denied. Entitlement to a disability rating greater than 10 percent effective September 22, 2016, for right knee instability is denied. FINDINGS OF FACT 1. The record evidence shows that the Veteran was exposed to significant in-service acoustic trauma. 2. The record evidence shows that the Veteran consistently has reported experiencing left ear hearing loss since service. 3. The record evidence shows that the Veteran currently experiences left ear hearing loss. 4. The record evidence reasonably supports finding that the Veteran's current left ear hearing loss is related to active service. 5. Throughout the appeal period, the Veteran's service-connected degenerative joint disease of the right knee is manifested by, at worst, complaints of pain, 90 degrees of flexion, and 0 degrees of extension. 6. Throughout the period on appeal, the Veteran's right knee instability is not productive of moderate recurrent subluxation or lateral instability and is against a finding of an unrepaired or failed repair of complete ligament tear causing persistent instability or of medical provider prescribing either an assistive device or bracing for ambulation. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss are met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2019). 2. The criteria for a disability rating greater than 10 percent for degenerative joint disease of the right knee based on limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5260 and 5261 (2019). 3. The criteria for a disability rating greater than 10 percent effective September 22, 2016, for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1990 to October 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2016 and November 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Board denied the currently appealed claims. The Veteran appealed. In a June 2020 Order, the Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand and vacated and remanded the Board's April 2019 decision. In November 2020, the Board remanded the appeal to the RO for further development. In a March 2021 rating decision, the RO granted service connection for right ear hearing loss and assigned a noncompensable rating effective September 8, 2016. 1. Entitlement to service connection for left ear hearing loss Service connection already is in effect for right ear hearing loss. The Veteran asserts that he is entitled to service connection for the left ear hearing loss as well. He met the criteria for current left ear hearing loss per 38 C.F.R. § 3.385 given that the auditory threshold in at least one of the relevant frequencies in the left ear is 40 decibels or greater. On his October 2016 VA audiological examination, the pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 LEFT 40 40 40 35 In addition, the present facts satisfy the in-service injury requirement. In the March 2021 rating decision, the RO conceded in-service noise exposure. Service treatment records show that he reported being told that he had hearing loss on a December 1992 occupational history questionnaire. On the Veteran's April 1990 in-service audiological examination, the pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 LEFT 0 5 0 0 On the Veteran's September 1992 in-service audiological examination, the pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 LEFT 5 0 10 20 On the Veteran's August 1994 in-service audiological examination, the pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 LEFT 30 15 20 20 The question in this case is whether there is a relationship between the current left ear hearing loss and the conceded in-service noise exposure. The Veteran indicated in his statements that he experienced a decrease in hearing in service with a continuity of symptoms since service. His testimony in this regard is considered competent and credible. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding lay testimony competent to establish presence of observable symptomatology). The Veteran underwent a VA audiological examination in December 1994 during which he reported in-service noise exposure from working as a jet aircraft mechanic. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 LEFT 10 5 15 20 He had another VA audiological examination in October 2016, during which he reported in-service noise exposure from jet engines and launching of aircraft. Audiometric testing revealed a hearing loss disability in the left ear. The examiner opined that the Veteran's left ear hearing loss was less likely than not incurred in or caused by service. In support of this, the examiner explained that while the Veteran's left ear exhibited very mild low frequency hearing loss upon his discharge from active duty, such is not consistent with noise-induced hearing loss which is present in the higher frequencies. The examiner opined that other factors, such as cerumen or headphone insertion, likely contributed to the low frequency dip noted during the Veteran's separation examination. In a May 2017 supplemental opinion, the VA examiner indicated that, although the record did show significant threshold shifts in hearing during service, the threshold shifts went both ways. The examiner explained that some shifts represented a decrease in hearing acuity and some represented an increase in hearing acuity. The examiner also reiterated that the Veteran's very mild hearing loss in the lower frequencies was not consistent with noise-induced hearing loss. During the February 2021 VA examination, the examiner noted that the Veteran had normal hearing. The examiner did not provide an opinion for the Veteran's claimed left ear hearing loss because hearing was within normal limits in that ear. The Board finds that the October 2016, May 2017, and February 2021 opinions are all of no probative value on the issue of whether the left ear hearing loss is related to active service. All of these opinions are based, at least in part, on the absence of clinical evidence of treatment for hearing loss problems in service. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). These opinions also are of little probative value because they do not take into account the Veteran's competent and credible lay reports of continuous hearing loss symptoms in the years following service. With regard to February 2021 VA opinion, it is based on an incorrect factual premise. Although the February 2021 VA examiner found that the Veteran's hearing was within normal limits, the Board notes that the October 2016 VA examination documents that the Veteran had current left ear hearing loss. The February 2021 VA examiner did not provide any explanation for why results during that examination (showing no left ear hearing loss) were so different than the earlier examination in October 2016 (which showed the presence of left ear hearing loss). Additionally, the October 2016 and May 2017 VA opinions relied on the finding that the Veteran's hearing was within normal limits during service. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Also, the Board points out that the absence of hearing loss (as defined by 38 C.F.R. § 3.385) in service, alone, is not fatal to a claim of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). In other words, the absence of in-service evidence of hearing loss as defined by 38 C.F.R. § 3.385 does not mean necessarily that the Veteran did not experience any hearing impairment in service. In sum, the evidence reflects that the Veteran experienced left ear hearing impairment in service. VA already has conceded that he was exposed to significant in-service acoustic trauma. There were continuous left ear hearing loss symptoms in the years following service. He also has left ear hearing loss as defined by VA. There is no adequate medical opinion which supports finding that the left ear hearing loss is not related to active service. In contrast, as discussed above, the medical opinions of record are entitled to no probative value on the issue of whether the left ear hearing loss is related to active service. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for left ear hearing loss is warranted. Increased Rating 2. Entitlement to a disability rating greater than 10 percent for degenerative joint disease of the right knee. 3. Entitlement to a disability rating greater than 10 percent effective September 22, 2016, for right knee instability. This appeal stems from a claim dated in November 2015. During the period on appeal, the knee is rated 10 percent under DC 5260 and previously was under DC 5257. A separate rating was granted in an April 2019 Board decision and a 10 percent rating was assigned under DC 5257. The Board concludes that the Veteran's disability picture, to include the Veteran's statements, does not more nearly approximate the degree required for additional higher or separate ratings for either of these service-connected disabilities. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including DC 5257, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic codes only; however, for the period beginning February 7, 2021 the Board will consider both the old and amended version (amended code) of the diagnostic code and rate based on whichever is most favorable to the Veteran. Prior to the regulatory change, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, DC 5257 (2020). As of February 7, 2021, DC 5257 contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, DC 5257. The first is for recurrent subluxation or instability. The second is for patellar instability. Regarding recurrent subluxation and instability, a compensable rating requires persistent instability. Id.; see also 38 C.F.R. § 4.31. Under these criteria, a 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear which causes persistent instability and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is assigned with either (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 10 percent rating is assigned for 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 or bracing for ambulation. Regarding 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 warrants a 30 percent rating which is the highest allowable rating for 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, cane, or walker warrants a 20 percent rating. 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 warrants a 10 percent rating. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, DC 5257, Note (1). 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). Id., Note (2). Range of motion testing was performed during VA examinations in February 2016 and March 2021 and was, at worst, 90 degrees of flexion and 0 degrees of extension. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiners, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. At the March 2021 examination, he reported flare-ups consisting of increased pain. Notably, the examiner in March 2021 estimated range of motion during flare-up would be at worst 90 degrees of flexion and 0 degrees of extension. Thus, the Board finds that the range of motion findings on examination depict the estimated range of motion during a flare-up. Treatment records do not show greater limitation of motion than the examination findings. Thus, the Board finds that, even when considering the impact of knee pain on physical activities, a higher or separate rating is not warranted based on limitation of motion. 38 C.F.R. § 4.71a, DCs 5260 and 5261. Regarding instability and subluxation of the knee, a private treatment record dated September 22, 2016, shows that the Veteran reported wearing a wrap or a knee brace and feeling like his knee is giving out. Anterior stability testing (Lachman test) was 1+, which the treatment provider noted was indicative of "trace Lachman with good endpoint." In March 2021, the Veteran stated that he occasionally felt like his right knee would give out and feel unstable. In the March 2021 examination report, the examiner noted that the Veteran had a right knee complete ligament tear that was successfully repaired and that the Veteran did not require a prescription for any ambulation. The March 2021 examiner also noted that there was no recurrent patellar instability. Regarding the version of DC 5257 in effect prior to February 7, 2021, a higher rating is not warranted as the Veteran's treatment provider described his instability as "trace" and all stability tests other than the Lachman test were normal. Additionally, the February 2016 VA examination report tested the right knee for instability but testing results revealed that there was no instability. Regarding the version of DC 5257 in effect since February 7, 2021, a higher rating is not warranted because the Veteran's ligament was noted to be repaired successfully. The March 2021 examiner specifically noted that a medical provider did not prescribe a brace and/or assistive device for ambulation. This examiner specifically noted that there was no recurrent patellar instability and that the Veteran did not have a surgical repair of the knee for patellar instability. Thus, the Board finds that a higher rating is not warranted under DC 5257. 38 C.F.R. § 4.71a, DC 5257. The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to a disability rating greater than 10 percent for degenerative joint disease of the right knee or to a disability rating greater than 10 percent effective September 22, 2016, for right knee instability. Thus, the Board finds that the criteria for disability ratings greater than 10 percent for degenerative joint disease of the right knee and greater than 10 percent effective September 22, 2016, for right knee instability have not been met. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hammad Rasul, 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.