Citation Nr: 21040839 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-03 314 DATE: July 7, 2021 ORDER Entitlement to a compensable evaluation for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. FINDINGS OF FACT 1. The Veteran's left ear hearing loss was no worse than Level I for all periods under consideration. 2. The Veteran's right ear hearing loss was no worse than Level I for all periods under consideration. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from September 1972 to September 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from March 2015 and May 2015 rating decisions of the Newark, New Jersey, Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran appeared and testified before the undersigned at a videoconference hearing. A transcript of the hearing is associated with the Veteran's claims file. 1. Entitlement to a compensable evaluation for bilateral hearing loss Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100, Table VI. In order to establish entitlement to an increased rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. 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. Lendenmann v. Principi, 3 Vet. App. 345, 349 (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. The Veteran underwent a VA examination in February 2015. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 35 40 45 35 LEFT 15 35 40 35 31 Word recognition testing revealed speech recognition ability of 94 percent for the right ear, and 96 percent for the left ear. The examiner was unable to obtain/maintain a seal to obtain tympanometry findings. The Veteran reported difficulty hearing in crowded rooms. These audiometry test results equate to Level I hearing in the right ear and Level I in the left ear using Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in the right ear and Level I hearing in the left ear results in a noncompensable disability rating. 38 C.F.R. § 4.85. His spouse submitted a statement in January 2019, attesting that the Veteran has difficulty hearing in a crowd. At the Board hearing he testified that his hearing had worsened. He reported last being treated at Garden State hearing and receiving hearing aids. In November 2020, he underwent another examination. He reported difficulty hearing when there is background noise, even when wearing hearing aids. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 35 40 55 37.50 LEFT 20 40 50 50 40 Word recognition testing revealed speech recognition ability of 100 percent for the right ear, and 100 percent for the left ear. These audiometry test results equate to Level I hearing in the right ear and Level I in the left ear using Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in the right ear and Level I hearing in the left ear results in a noncompensable disability rating. 38 C.F.R. § 4.85. Therefore, for the entire appeal period, the Veteran has no worse than Level I hearing in the right ear and Level I hearing in the left ear. As such, he is not entitled to a compensable rating for his bilateral hearing loss. At this point, the Veteran does not meet the thresholds for a compensable rating for his bilateral hearing loss. Again, this is a mechanical application of his hearing thresholds to the rating criteria. If at any point in the future, he believes that his hearing acuity has decreased, he is invited to file for an increased rating at the Regional Office on the appropriate forms. The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for a compensable rating for bilateral hearing loss. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 2. Entitlement to service connection for a right knee disability 3. Entitlement to service connection for a left knee disability The Veteran contends that he suffers from bilateral knee disabilities as a result of his time in service. STRs show a complaint of knee pain going downstairs mostly on the right side, in May 1992. At a July 1992 visit, he complained of right knee pain, and the impression was patellofemoral syndrome, and he was given Naprosyn. There is no mention in his STRs of him entering service with a knee disability. In a March 2013 treatment record from the Orthopedic Institute of Central Jersey, the Veteran had a past history of left knee arthroscopy for a meniscus tear. He reported right sided medial knee pain, and an MRI revealed a right knee medial meniscus tear. In a September 2014 record from Bayside Orthopedics, the Veteran had left knee pain, with a note he had prior knee arthroscopy 10 years prior for a meniscal tear. He had right knee cortisone injections, which was not helping. X-rays revealed advanced osteoarthritis of the left knee. In a January 2019 statement in support from the Veteran's spouse, she reported that the Veteran can no longer bend his left knee properly. She stated he was under the care of an orthopedist and had had treatment on both knees. At the hearing he testified to injuring his right knee prior to service during a football game. He reported that during service he complained of pain in his knees. During service he worked in metal decking that he believes impacted his knees. He reported believing the left knee disability was due to in part from over-compensation for the weakened right knee. The Veteran underwent an examination in December 2020. The Veteran was found to have a bilateral knee strain, with the date of diagnosis for each being 2020. He had a bilateral knee meniscal tear, with the date of diagnosis for the right knee being 2013 and left knee being 2004. He has right knee degenerative arthritis, with the date of diagnosis of 2015, and left knee degenerative arthritis dating to 2021. He described daily knee pain, and swelling at times. Bilateral knee range of motion was 0 to 140 degrees with pain. The examiner concluded his left and right knee disabilities are less likely than not incurred in or caused by an event or injury in service. As for his right knee, the examiner indicated the Veteran's knee pain resolved in high school. His knee pain started about 1996. Service treatment records are void for reports of a knee condition. As the December 2020 opinion references a lack of any mention of a knee complaint during service, and makes no mention of the Veteran's contentions of continuity, an addendum opinion is needed clarifying the etiology of the knee disabilities. 4. Entitlement to service connection for OSA The Veteran contends that he suffers from OSA as a result of his time in service. STRs are void for any complaints, treatment, or diagnosis of OSA. There are numerous reports of obesity throughout service. In a January 2019 statement, the Veteran's spouse reported that the Veteran would sit down after dinner and immediately fall asleep. She stated sleep apnea had been an issue from early on in their marriage. She stated he had been diagnosed with sleep apnea and provided with a CPAP machine, which helped. At the Board hearing the Veteran testified to being first diagnosed with OSA in 1995. He reported during service falling asleep at various times, and seeking treatment for sleep problems in service. He reported being advised to stop drinking coffee. The Veteran underwent an examination in December 2020. He was diagnosed with OSA in 1998. He reported he snored a lot during service. He used a CPAP machine. The examiner concluded "any currently diagnosed conditions related to the Veteran's OSA are at least as likely as not incurred in or caused by the OSA during service." The rationale provided was the Veteran did not have OSA in service, even though he reported snoring. As this opinion is unclear and is contradictory, an addendum is needed clarifying the etiology of the Veterans claimed OSA. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file all ongoing private and VA treatment records. 2. Obtain an addendum opinion as to the Veteran's bilateral knee disability claim. The need for an in-person examination is left to the discretion of the examiner. a) Is it at least as likely as not that any diagnosed bilateral knee disability is related to his service? The Veteran has been found to have bilateral knee degenerative arthritis, knee strain, and a meniscus condition. The examiner is asked to address the Veteran's contentions, personnel records, and STRs. The examiner is asked to address the Veteran's in-service report of knee pain. To the extent the Veteran reported bilateral knee pain since service, he is competent to so report. The examiner is asked to provide a rationale for all opinions reached. 3. Obtain an addendum opinion as to the Veteran's OSA claim. The need for an in-person examination is left to the discretion of the examiner. (a) Is it at least as likely as not that OSA is related to his service? The examiner is asked to address the Veteran's contentions, personnel records, and STRs. To the extent the Veteran reported snoring and sleep disturbances since service, he is competent to so report. The examiner is asked to provide a rationale for all opinions reached. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Skiouris, 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.