Citation Nr: 21040274 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 17-28 638 DATE: July 3, 2021 ORDER Service connection for hearing loss is denied. A rating in excess of 10 percent for limitation of motion of the right knee is denied. A rating in excess of 10 percent for right hand disability is denied. A rating in excess of 70 percent for PTSD is denied. A TDIU is denied. FINDINGS OF FACT 1. The Veteran does not have hearing loss in either ear for VA compensation purposes. 2. The Veteran's right knee disability has been manifested by range of motion from 0 degrees to no worse than 135 degrees, with pain and given flare-ups. 3. The Veteran is in receipt of the maximum schedular rating for limitation of motion of the wrist, residuals of right-hand trauma and there is no evidence of ankylosis. 4. The Veteran's service-connected PTSD is not manifested by total occupational and social impairment. 5. The preponderance of the evidence shows that the Veteran's service-connected disabilities do not preclude him from obtaining or maintaining a substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.385. 2. The criteria for a rating in excess of 10 percent for limitation of motion of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5261. 3. The criteria for a rating in excess of 10 percent for right wrist, residuals of hand trauma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71(a), Diagnostic Code 5215. 4. The criteria for entitlement to a rating in excess of 70 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 5. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.326, 3.340, 3.655, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 2002 to July 2005, including service in Iraq. The Veteran presented sworn testimony at a hearing before the undersigned in January 2020. In May 2020, the Board remanded the above issues for additional development, to include contemporaneous VA examinations. 1. Entitlement to service connection for bilateral hearing loss. The Veteran seeks service connection for bilateral hearing loss due to acoustic trauma in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. At the November 2012 VA examination, the Veteran did not meet the criteria for hearing loss for VA purposes. At the January 2020 Board hearing, the Veteran testified that his hearing has worsened. Accordingly, the Board remanded this issue for a new VA examination. See May 2020 BVA Decision. In February 2021, the Veteran was afforded a VA examination regarding hearing loss. The February 2021 hearing loss examination revealed the Veteran does not have hearing loss in either ear for VA compensation purposes. While the Veteran is competent to report the symptoms he observes, such as decreased hearing ability, he is not competent to report that he has a hearing loss disability, because such a determination requires specific audiometric findings. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, notwithstanding his assertion that he has bilateral hearing loss disability, the audiometric evidence reflects that the Veteran does not have current a hearing loss disability in either ear for VA purposes and the claim must be denied on the basis that the Veteran does not have a current disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). As application of 38 C.F.R. § 3.385 reflects that the Veteran does not have a current hearing loss disability, service connection for bilateral hearing loss must be denied. 2. Entitlement to a rating in excess of 10 percent for right knee. The Veteran seeks an increased rating for his service-connected right knee strain. Specifically, the Veteran testified that his right knee disability had worsened since his previous examination in May 2012. See January 2020 Hr' g Tr at 5. The Veteran's right knee disability is rated under Diagnostic Code 5003-5260 for painful motion, effective July 2, 2005. The Board has considered whether a higher rating is warranted based on limitation of motion. In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Flexion of the leg limited to 60 degrees warrants a noncompensable rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Extension limited to 5 degrees warrants a noncompensable rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Board notes that the recent amendments to the Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries did not alter the rating criteria for limitation of motion. 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). After consideration of the record, the Board finds that a rating in excess of 10 percent is not warranted. Specifically, the Board finds a higher rating is not warranted based on limitation of flexion/and or extension. The reported pain on motion and functional impairment of motion is already contemplated in the rating assigned, and the record consistently reveal motion from at least 0 to 135 degrees in the right knee. The VA examiner was able to quantify the effect of repeated use over time and flares on functional ability. The VA examiner described the Veteran's functional impact of the Veteran's condition as pain during prolonged activities that require weight bearing. The Veteran was able to perform repetitive use testing with flexion to 135 degrees and extension to 0 in the right knee with pain reported. In sum, the Board finds the Veteran's range of motion is too insignificant in the right knee to approximate the limitation of flexion to 15 degrees and/or limitation of extension to 10 degrees needed for a higher rating, even after consideration of repeated use over time and flares. The Board finds the record does not warrant the assignment of a separate or higher rating under any other diagnostic code. Notably, the probative evidence does not indicate that the Veteran has ankylosis or dislocation of the semilunar cartilage which could warrant a rating under Diagnostic Codes 5256 or 5258. A rating is also not warranted under the former or revised version of Diagnostic Code 5257. The Board acknowledges that the Veteran testified that his knee has given out, the record, including the December 2020 examination record reports, show that joint stability testing was normal, there is no clinical evidence of subluxation or instability during this period. 3. Entitlement to a rating in excess of 10 percent for wrist, residuals of right-hand trauma disability. The Veteran testified that his service-connected right-hand disability had worsened since his last VA examination in May 2012. See January 2020 Hr'g Tr. at 6. In a July 2020 rating decision, the RO granted an increased rating of 10 percent for the Veteran's wrist, residual of right-hand trauma based on painful motion of the wrist, effective February 3, 2012. The Veteran is right-handed; therefore, ratings for the major wrist are applicable. 38 C.F.R. § 4.69. The Veteran's right-hand disability was previously rated under Diagnostic Code Diagnostic Code 5214 provides for ratings for ankylosis of the wrist and for the major wrist provides a 30 percent rating where there is favorable ankylosis of the wrist in 20 to 30 degrees dorsiflexion. A 40 percent rating is warranted where there is ankylosis in any other position, except favorable. A 50 percent rating is warranted where there is unfavorable ankylosis, in any degree of palmar flexion, or with ulnar or radial deviation. A note following Diagnostic Code 5214 states that extremely unfavorable ankylosis will be rated as loss of use of hands under Diagnostic Code 5125. 38 C.F.R. § 4.71a, Diagnostic Code 5214. The Veteran's disability is currently rated under Diagnostic Code 5215. Regarding Diagnostic Code 5215 and limitation of motion of the wrist, this diagnostic code provides a maximum 10 percent evaluation. Accordingly, it is not applicable in this matter. The Board notes that there is a musculoskeletal regulatory change. However, the diagnostic code that pertains this disability has not changed. See 85 FR 76453, 7646, Nov. 30, 2020, amended this section, effective Feb. 7, 2021; as corrected at 85 FR 85523, Dec. 29, 2020, effective Feb. 7, 2021; as corrected at 86 FR 8142, Feb. 4, 2021, effective Feb. 7, 2021. After review of the evidence of record, the Board finds a preponderance of the evidence is against finding a rating in excess of 10 percent for the Veteran's right wrist fracture is warranted as the record reflects that the Veteran is currently in receipt of the highest rating provided under Diagnostic Code 5215, which rates limitation of motion of the wrist. A December 2020 VA examination report indicates a diagnosis of residuals trauma, right hand. Range of motion testing was abnormal and revealed palmar flexion to palmar flexion to 80 degrees, dorsiflexion to 70 degrees, ulnar deviation to 45 degrees and radial deviation to 20 degrees. The examiner the Veteran's wrist had no functional impairment, no ankylosis and no flare-ups of the right wrist. Additionally, as there is no evidence of ankylosis, the Veteran's right wrist fracture cannot be rated under Diagnostic Code 5214 for ankylosis of the wrist. The Board notes that service connection is in effect for the Veteran's little finger, residuals, trauma right hand, which is evaluated as noncompensably disabling. 4. Entitlement to a rating in excess of 70 percent for PTSD. The Veteran asserts that he is entitled to a rating in excess of 70 percent for his service-connected PTSD. Specifically, the Veteran testified that his service-connected PTSD has worsened since his most recent VA examination in December 2012. See January 2020 Hr'g Tr. The Veteran's PTSD is rated at 70 percent from February 3, 2012 under 38 C.F.R. § 4.130, Diagnostic Code 9411 (the General Rating Formula for Mental Disorders (General Formula). Under the General Rating Formula for Mental Disorders, a 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The symptoms listed in General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that VA regulations require that when the symptoms and/or degree of impairment due to a Veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. In a May 2020 decision, the Board granted a 70 percent disability rating and remanded entitlement to a rating in excess of 70 percent. The Veteran was afforded a VA psychiatric examination in December 2020. The examiner summarized the Veteran's as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. His symptoms included: depressed mood; anxiety; panic attacks more than once a week; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationships and impaired impulse control, such a unprovoked irritability with periods of violence. Regarding social impairment, the Veteran has been married for over 20 years and he reports his marriage is good now. He has three children and has a good relationship with them. His three children, son-in-law and grandson live with them. He stated, there is "too much stress in the house." His routine is to wake up and go to his mother's house or to go fishing. He reports a pattern of distress that includes almost hitting his brother because he "snapped." See December 2020 PTSD DBQ. Regarding occupational impairment, the Veteran reports that he last worked 4-5 years ago; however, he has knee and back problems that make it hard to work and caused him to quit. Id. The VA examiner noted that the Veteran presented as a polite serious man with a mood-congruent restricted affect who is mildly to moderately overweight. His grooming and hygiene, physical movement, gait, speech, eye contact, ability as a historian, orientation, ability to abstract insight and judgement, intelligence, and long-term memory were all within normal limits. The examiner found the Veteran's concentration and short-term memory were observed and reported to be problematic; however, the Veteran exhibited no psychotic, delusional, or homicidal symptoms were present or reported. The Veteran exhibited chronic passive suicidal ideation with no plans, intent or history of attempts. He reports that he has never had any PTSD specific therapies. The Board finds that the preponderance of the evidence is against a finding that the Veteran's PTSD shows total occupational and social impairment sufficient to warrant a rating of 100 percent. The evidence does not demonstrate symptoms such as persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name, or any symptomatology otherwise consistent with total occupational and social impairment. In light of the foregoing, the Board finds that the preponderance of the evidence is against entitlement to a rating in excess of 70 percent. As such, the appeal must be denied. 5. Entitlement to a TDIU is denied. It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Entitlement to a TDIU is based on an individual's particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The VA sent a letter to the Veteran in July 2020 including the VA Form 21-8940, along with instruction to complete the form and return it to the RO. No response was received from the Veteran. A VA Form 21-8940 asks a veteran which service-connected disability or disabilities prevent him from securing or following a substantially gainful occupation, and the treatment he has received for the disability(ies). The veteran is further asked to supply information about his employment, including dates when his disability(ies) affected full-time employment, the date the veteran last worked full-time, and the date the veteran became too disabled to work. VA Form 21-8940 also requests information regarding the veteran's employment, educational, and training history, to include all employers for the last five years, the hours worked per week, the time lost from illness, the circumstances under which the veteran left his last job, and whether the veteran has attempted to obtain employment since he became too disabled to work. In the May 2020 remand, the Board acknowledged that the Veteran testified at his January 2020 Board hearing that he was not working due to his service-connected disabilities. The Board also observed that in July 2020, the RO asked the Veteran to send a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The Board added that as of that time, VA has not received a completed VA Form 21-8940 from the Veteran and advised him that failing to complete and submit this form may lead to the denial of this benefit. The critical facts at this stage are clear. The Veteran has not provided the information or VA forms necessary for VA to adjudicate his claim of entitlement to a TDIU rating. Although the record contains some information regarding his employment history, the Veteran has not provided all of the information necessary to adjudicate his claim for a TDIU rating. The Board is presented with a less-than-complete evidentiary picture, made so by the Veteran's failure to cooperate. In such circumstances, proper adjudication on the merits is not possible. Hence, based on the evidence of record, and in the absence of the VA Form 21-8940, the Board finds that the preponderance of the evidence is against entitlement to a TDIU. Geib. As such, the Board finds that the appeal must be denied. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jacquelynn M. Jordan, 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.