Citation Nr: 21032617 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 18-03 852 DATE: May 27, 2021 ORDER Entitlement to a compensable evaluation for bilateral hearing loss disability prior to July 14, 2015 is denied. Entitlement to an evaluation in excess of 30 percent for bilateral hearing loss disability from July 14, 2015 is denied. REMANDED Entitlement to an evaluation in excess of 10 percent for right knee tendonitis with degenerative changes is remanded. Entitlement to an evaluation in excess of 10 percent for left knee tendonitis with degenerative changes is remanded. Entitlement to an evaluation in excess of 10 percent for degenerative changes, thoracic spine is remanded. FINDINGS OF FACT 1. Prior to July 14, 2015, audiometric examination corresponds to a level III hearing loss for the right ear and a level II hearing loss for the left ear. 2. From July 14, 2015, audiometric examination corresponds to a level V hearing loss for the right ear and a level IV hearing loss for the left ear. CONCLUSIONS OF LAW 1. Prior to July 14, 2015, the criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100. 2. From July 14, 2015, the criteria for an evaluation in excess of 30 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1981 to February 2001. The issue of entitlement to an increased rating for bilateral hearing loss was previously remanded by the Board in March 2020 for evidentiary development. It is now back before the Board. The issues of entitlement to increased ratings for the right knee, left knee, and thoracic spine disorders were previously denied by the Board in March 2020. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims, resulting in a January 2021 Joint Motion for Partial Remand (JMPR). Accordingly, those matters are now back before the Board. 1. Entitlement to a compensable evaluation for bilateral hearing loss disability prior to July 14, 2015 Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's bilateral hearing loss is currently assigned a noncompensable evaluation under Diagnostic Code 6100 prior to July 14, 2015, and a 30 percent evaluation thereafter. He filed an increased rating claim on January 9, 2014. As explained below, the Board has determined that the current staged rating is appropriate. See Hart, supra; Fenderson, supra. In general, to evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Tables VI, VIa, VII. Organic impairment of hearing acuity is 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 1,000, 2,000, 3,000, and 4,000 cycles per second. See 38 C.F.R. § 4.85 (a), (d). Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. Specifically, an exceptional pattern of hearing loss is hearing loss of 55 decibels or more in each of the four specified frequencies (i.e. 1000, 2000, 3000, and 4000 Hertz), and hearing loss with a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 (a), (b). At an April 2014 VA examination, pure tone thresholds, in decibels, and Maryland CNC speech discrimination results were as follows: HERTZ CNC 1000 2000 3000 4000 Avg RIGHT 45 50 65 85 61 88% LEFT 45 70 90 100 76 96% There is not an exceptional pattern of hearing loss in either ear. Applying 38 C.F.R. § 4.85, Table VI to the above audiological findings, the Veteran has a numeric designation of III for his right ear and II for his left ear. Application of 38 C.F.R. § 4.85, Table VII, results in a noncompensable evaluation. The preponderance of the evidence is against a compensable evaluation for a bilateral hearing loss disability prior to July 14, 2015. The Board notes the Veteran's assertion in his Form 9 Substantive Appeal that is improbable that his hearing loss disability increased in severity on the day of the July 14, 2015 private examination (discussed below) and that a compensable evaluation is warranted for the entire period on appeal. However, in the case of rating hearing loss disability, evaluations are based on the mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann, supra. The Board has reviewed the entirety of the record during this period, to include VA and private treatment records. There are no additional objective medical findings that would support a compensable evaluation. The evidence of record does not more nearly reflect the criteria for a higher evaluation. 38 C.F.R. § 4.7. The claim must be denied. 2. Entitlement to an evaluation in excess of 30 percent for bilateral hearing loss disability from July 14, 2015 In a January 2018 rating decision, the RO granted an evaluation of 30 percent for the Veteran's hearing loss, effective July 14, 2015. The effective date and increased rating were based upon a July 14, 2015 private audiological examination. Pure tone thresholds, in decibels results were as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 25 45 65 75 53 LEFT 25 40 75 80 55 The examination report documents discrimination results as 48% for the right ear and 68% for the left ear. The RO assumed that these are results from a Maryland CNC speech discrimination. There is not an exceptional pattern of hearing loss in either ear. Assuming that these CNC speech discrimination results are from a Maryland CNC, as the RO did, application of 38 C.F.R. § 4.85, Table VI to the above audiological findings, results in a numeric designation of VIII for the right ear and V for the left ear. Application of 38 C.F.R. § 4.85, Table VII, results in a 30 percent evaluation. At a December 2020 VA examination, pure tone thresholds, in decibels, and Maryland CNC speech discrimination results were as follows: HERTZ CNC 1000 2000 3000 4000 Avg RIGHT 35 60 70 80 61 72 LEFT 35 60 75 85 64 76 There is not an exceptional pattern of hearing loss in either ear. Applying 38 C.F.R. § 4.85, Table VI to the above audiological findings, the Veteran has a numeric designation of V for his right ear and IV for his left ear. Application of 38 C.F.R. § 4.85, Table VII, results in a 10 percent evaluation. To the extent that the Veteran reports that his hearing acuity is worse than evaluated, the Board has considered his statements. This evidence is competent. However, far more probative of the degree of the disability are the results of testing prepared by a skilled professional since the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. In essence, lay statements are of limited probative value. As a layperson, the Veteran is competent to report difficulty with his hearing; however, he is not competent to assign particular speech recognition scores or puretone decibel reading to his current acuity problems. As indicated above, ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann, supra. The preponderance of the evidence is against an evaluation in excess of 30 percent from July 15, 2014 for a bilateral hearing loss disability. The evidence of record does not more nearly reflect the criteria for a higher evaluation. 38 C.F.R. § 4.7. The claim must be denied. To the extent that the AOJ may have committed clear and unmistakable error by using testing that did not seem to use the Maryland CNC test, we leave that to the AOJ (at this point). REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 10 percent for right knee tendonitis with degenerative changes is remanded. 2. Entitlement to an evaluation in excess of 10 percent for left knee tendonitis with degenerative changes is remanded. 3. Entitlement to an evaluation in excess of 10 percent for degenerative changes, thoracic spine is remanded. The January 2021 JMPR focuses on the March 2020 Board decision's reliance on April 2014 and April 2019 VA knee and back examinations. The JMPR found that the VA examinations were inadequate. Specific to the April 2019 VA examinations, the JMPR found that the examiner did not comply with the requirements of Sharp with respect to estimating the functional loss due to flareups or adequately explaining why it was infeasible to describe the Veteran's functional loss in terms additional lost range of motion. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In addition, the JMPR notes that the Board did not adequately discuss whether the Veteran's reports of knee instability warrant a separate evaluation. 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). Diagnostic Code 5257 was amended and now provides rating criteria for recurrent subluxation or lateral instability and patellar instability. As such, additional medical information is necessary to properly determine if a separate evaluation for instability is warranted. Pursuant to the JMPR, remand is necessary to provide the Veteran with adequate VA examinations that properly address Sharp and provide sufficient information to determine if separate evaluations for instability of the knees are warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for examinations to determine the current severity of his bilateral knee and thoracic spine disabilities. The examiner(s) should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. This includes newly amended criteria specific to the knees and Diagnostic Code 5257. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the lumbar spine disability alone and discuss the effect of the Veteran's disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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) or a deficiency in the record (additional facts are required) and should provide an estimate, if possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. R. Stephens, 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.