Citation Nr: 21030597 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-52 558 DATE: May 19, 2021 ORDER Entitlement to rating in excess of 10 percent for limitation of flexion due to arthritis of the right knee is denied. Entitlement to rating in excess of 10 percent for limitation of flexion due to arthritis of the left knee is denied. Entitlement to a compensable rating for bilateral hearing loss is denied. REMAND Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Flexion is not limited to 30 degrees in either knee and there is not recurrent subluxation or instability in either knee. 2. Hearing acuity is to, at worst, Level II in each ear. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for degenerative joint disease of the right knee have not been met. 38 U.S.C. §§ 1155, 5103, 5003, 5103A, 5107 (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5260, 5257 (2020). 2. The criteria for a rating in excess of 10 percent for degenerative joint disease of the left knee have not been met. 38 U.S.C. §§ 1155, 5103, 5003, 5103A, 5107 (2012); 38 C.F.R. § 4.7, 4.40, 4.45, 4.71a, DCs 5260, 5257 (2020). 3. The criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, DC 6100 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1977 to November 1990. This case was remanded by the Board of Veterans' Appeals (Board) in February 2020 and is now ready for appellate review. This remand requested medical opinions with respect to whether vertigo and a psychiatric disorder were caused or aggravated by hearing loss, but did not assume jurisdiction of the matters of entitlement to service connection for vertigo or psychiatric disorder. The requested medical opinions with respect to these matters were completed, but as the Agency of Original Jurisdiction(AOJ) has not conducted the initial adjudication of such matters, the AOJ is directed to adjudicate the matters of entitlement to service connection for vertigo and a psychiatric disorder to include as secondary to bilateral hearing loss. An August 2020 rating decision issued following the February 2020 Board remand granted service connection for limitation of extension of the left and right knee. As the current appeal does not include the propriety of the initial noncompensable ratings assigned for such impairment in each knee, the claims properly addressed herein are limited to those listed on the Title Page. In April 2019, a hearing was held before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. I. General Legal Criteria When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. While the Veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Court has since held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. II. Right and Left Knee Flexion A. Rating Criteria For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2006). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court) held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. DC 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Standard range of knee motion is from zero degrees (on extension) to 140 degrees (on flexion). See 38 C.F.R. § 4.71, Plate II. Under DC 5260, a 10 percent is warranted where flexion is limited to 45 degrees. A rating of 20 percent is warranted where flexion is limited to 30 degrees. Id. VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003/5010 and 5257, respectively. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). In VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998), VA's General Counsel further explained that, to warrant a separate rating, the limitation of motion need not be compensable under DC 5260 or 5261; rather, such limited motion must at least meet the criteria for a zero (0) percent rating. The VA General Counsel has also held that separate ratings under 38 C.F.R. § 4.71a, DCs 5260 and 5261 may be assigned for limitation of flexion and extension of the same joint. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). B. Analysis Service connection for limitation of flexion due to arthritis in each knee was granted by an October 2013 rating decision. A 10 percent rating was assigned for such disability in each knee under DCs 5003-5260, and these ratings have been continued to the present time aside from a period from January 20, 2018, to February 1, 2018, in which a temporary 100 precent rating for convalescence was assigned for limitation of flexion of the left knee. Pertinent evidence during the appeal period includes reports from a February 2016 VA examination that demonstrated 100 degrees of flexion in each knee. Repetitive motion resulted in no additional loss of flexion. No instability was shown in either knee at that time. No meniscal deficits or loss of strength were noted. The examiner stated that the Veteran could not perform occupational tasks involving prolonged running, kneeling, climbing, and lifting but that he could otherwise perform any type of occupational task without significant restrictions. A January 2018 VA examination revealed 130 degrees of flexion in the right knee and 120 degrees of flexion in the left knee. Repetitive motion result in no additional loss of flexion or functioning. It was noted that there was no history of recurrent subluxation or instability in either knee and joint stability testing was normal in each knee. No meniscal deficits or loss of strength were described. The only occupational limitation due to the Veteran's knee disabitly was that running would be precluded. The Board in its February 2020 remand found the January 2018 VA knee examination inadequate because it did not or was not able to consider all the relevant evidence of record. Specifically, the Board found that the examination did not consider any of the records in the claims file indicating that there was a meniscus involvement and a December 2017 VA outpatient treatment record showing a loose body in the left knee. The remand also noted that the January 2018 VA knee examination did not consider October 2018 VA outpatient reports reflecting popping, clicking, giving out, instability, recurrent effusion, as well as a decrease in left knee muscle strength. The knee examination requested in the February 2020 remand was completed in March 2020, and the reports from this examination specifically reflect consideration of the Veteran's claims file. These reports also reflect a discussion of a history from the Veteran stating that is knees had gotten worse since his last evaluation, with complains of daily pain and decreased mobility. He stated Synvisc injections provided no improvement and that he has to rest when he tries to walk because his knees become so painful. Current symptoms were said to be pain and decreased mobility. Flexion was to 100 degrees in each knee and repetitive motion result in no additional loss of flexion or functioning. Muscle strength testing was normal in each knee and it was again noted that there was no history of recurrent subluxation or instability in either knee. Joint stability testing conducted at this examination was also again normal in each knee and no meniscal conditions were noted. With respect to occupational impairment, the examiner stated the Veteran had to avoid kneeling, bending, crouching or prolonged walking or standing. The above findings clearly do reflect the limitation of flexion required for a rating in excess of 10 percent in either knee under 38 C.F.R. §§ 4.71a, DC 5261, and a review of the VA outpatient treatment reports of record do not otherwise reflect the range of motion findings required for increased compensation on the basis of loss of flexion. No subluxation or instability in either knee was noted by any of the VA examination reports referenced above, and the undersigned finds such evidence to preponderate over the isolated references to instability in the VA outpatient treatment reports, to include those dated in October 2018. As such, a separate or increased rating is not warranted for either knee on the basis of instability. See VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). Similarly, the lack of any evidence of meniscal deficits or loss of muscle strength on these examination reports preponderate over the isolated references such in the VA outpatient treatment reports, and a separate or increased rating would not be warranted on the basis of a meniscal deficit or loss of muscle strength. As for the findings required by Correia v. McDonald, 28 Vet. App. 158 (2016), the March 2002 examiner noted that there was evidence of pain in each knee in non-weight bearing; that active and passive motion were the same in each knee; and that there was pain in the same planes of passive motion as active motion. In short, such findings do not warrant increased compensation with consideration of the principles of Correia. Concerning the findings with respect to flare-ups required by Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Veteran reported no flare-ups in his knees at the February 2016 VA examination. The Veteran did in his own words describe right knee flare-ups at the January 2018 VA examination that involve locking and sharp pain which make walking downstairs uncomfortable. He described flare ups in the left knee of sharp pain when turning corners and stated that sometimes his knees straighten too much while standing which results in a sharp painful shock. The January 2018 VA examiner stated that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss during flare-ups. At the July 2020 VA examination, the Veteran in his own words described knee flareups as follows: "If I walk for too long my knees get really sore." The reports from the July 2020 examination noted that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss during flare-ups. In short, the undersigned finds any impairment resulting from flare-ups to be adequately compensated by the 10 percent ratings currently assigned for limitation of flexion in the knees. The examiner also concluded that the Veteran's bilateral knee condition prohibits him from employment that requires significant physical tasks like prolonged walking, bending, lifting, sedentary work would be more appropriate at this time. Finally with respect the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. §§ 4.40; 4.45 and the holdings in DeLuca and Mitchell, the VA examination reports discussed above document consideration of these principles, to include repetitive motion. In particular, no loss of motion or other functioning with repetitive use was noted at any of these examinations, and the evidence otherwise preponderates against a conclusion that increased compensation would be warranted for the service connected limitation for flexion of the knees with consideration of the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. §§ 4.40; 4.45 and the holdings in DeLuca and Mitchell. II. Bilateral Hearing Loss A. Rating Criteria The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lindemann v. Principi, 3 Vet. App. 345 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Such exceptional patterns have not been demonstrated or claimed. B. Analysis Service connection for bilateral hearing loss was granted by a March 2003 rating decision at a noncompensable rating. The noncompensable rating for bilateral hearing loss has been continued until the present time. The audiometric findings determinative in the assignment of the rating for the Veteran's bilateral hearing loss include results from VA audiometric testing in February 2016 which showed average puretone threshold deficits of 36 decibels in the right ear and 31 decibels in the left ear. When considered with speech recognition ability of 90 percent in the right ear and 92 percent in the left ear shown at this examination, such readings with application of Table VI of 38 C.F.R. § 4.85 reflect Level II hearing in the right ear and Level I earing in the left ear, warranting a noncompensable rating under Table VII. The February 2016 examiner noted that the Veteran stated his hearing loss impacted the ordinary conditions of daily life to include his ability to work to the extent that he has to look at a person to hear most of what they are saying. The July 2020 VA audiometric examination conducted as directed by the February 2020 Board remand showed average puretone threshold deficits of 49 decibels in each ear. When considered with speech recognition ability of 86 percent in the right ear and 88 percent in the left ear shown at this examination, such readings with application of Table VI of 38 C.F.R. § 4.85 reflect Level II hearing in each ear, warranting a noncompensable rating under Table VII. The July 2020 examiner noted that the Veteran stated his hearing loss impacted the ordinary conditions of daily life to include his ability to work to the extent that he becomes confused and frustrated because sometimes his answers or responses are totally out of context to what others have said. The examiner indicated that the hearing loss does not preclude any type of employment. In short, given the audiometric findings listed above and the manner in which ratings for hearing loss disability are determined, a compensable rating for bilateral hearing loss cannot be assigned. Lendenmann, supra (assignment of 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). In making these determinations, the Board observes that it has considered carefully the Veteran's contentions with respect to the nature of his service-connected bilateral hearing loss, to include having to look at people to understand them and having such difficulty with hearing that he becomes confused and frustrated. However, after considering such contentions as to the functional effects of the Veteran's hearing loss disability on his daily lifewith the VA audiology examinations specifically considering such effects as set forth abovethe Board finds that a compensable rating for bilateral hearing loss cannot be assigned. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007); Lendenmann, supra. III. Final Considerations In making the above rating determinations, the undersigned observes that she has carefully considered the Veteran's contentions, to include in sworn testimony to the undersigned, with respect to the nature of the service-connected disabilities at issue and notes that his lay testimony is competent to describe certain symptoms associated with these manifestations. However, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected manifestations at issue. As such, while the undersigned accepts the Veteran's testimony with regard to the matters he is competent to address, she places more probative weight upon the competent medical evidence with regard to the specialized evaluation of functional impairment; namely, the assessments of the severity of disability due to the service connected Finally, in making the negative rating determinations above, the undersigned has considered the doctrine of reasonable doubt but finds that the preponderance of the evidence is against the assignment of increased compensation for the disabilities addressed above. As such, increased ratings for these disabilities may not be granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert. REASONS FOR REMAND The Board notes that the issue of the Veteran's entitlement to a TDIU is also on appeal because it was raised by the VA examiner in the 2020 examination wherein the examiner found that the bilateral knee disability interferes with employment. Rice v. Shinseki, 22 Vet. App. 447 (2009) (if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether TDIU is warranted). The matter is REMANDED for the following action: 1. After securing any necessary authorization, obtain any private treatment records as the Veteran may identify relevant to his claims. 2. Provide a VA Form 21-8940 to the Veteran and ask him to provide information for any part of the appeal period (beginning January 2016) for which he seeks TDIU. Ask the Veteran to provide IRS tax returns for such period along with a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T "Request for Transcript of Tax Return" which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns and submit them to VA. Inform the Veteran that if he does not have copies of his tax returns for the requested years, he may use the IRS form cited to above. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Andrew Ahlberg, 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.