Citation Nr: 21041466 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 14-29 468 DATE: July 9, 2021 ORDER Entitlement to a compensable disability rating for bilateral hearing loss is denied. REMANDED Entitlement to a disability rating in excess of 30 percent for degenerative joint disease of the left knee is remanded. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the lumbar spine, prior to March 2, 2020, and in excess of 20 percent, thereafter, is remanded. Entitlement to a compensable disability rating for tension headaches is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran's bilateral hearing loss has been manifested by no more than a hearing acuity of Level I for each ear. CONCLUSION OF LAW The criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The Veteran had honorable active duty service with the United States Marine Corps from February 1975 to February 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Board remanded the Veteran's claims of entitlement to increased ratings for his service-connected bilateral hearing loss, left knee disability, back disability, and tension headaches. With specific regard to the increased rating claim for the service-connected back disability, while the case was in remand status, in an April 2020 rating decision, the RO increased the Veteran's evaluation for the back disability to 20 percent disabling, effective March 2, 2020. As that award did not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). This issue has been restated accordingly. When evidence of unemployability is submitted during the course of an appeal of an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 45354 (2009). In this case, in an August 2014 statement, the Veteran indicated that his quality of life had been "degraded 75 to 80 percent" as a result of his service-connected disabilities. He stated, "Generally my quality of life has been broken. I wish there was a medication taken once would fix all but that will not be [sic]. My life has changed so that I rise in the morning to go to work. I work those eight hours confined to my desk." Furthermore, on VA examination in March 2020 for his headaches, the Veteran reported that his headaches caused him to be unable to work on the computer. His headaches caused difficulty with concentrating, resulting in making errors at work. Thus, based on the Veteran's statements, his service-connected disabilities currently on appeal have impacted his ability to work. As such, the Board finds that a claim for a TDIU has been raised as part and parcel to the increased rating claims. Therefore, the issue of entitlement to a TDIU is before the Board on appeal and is properly included in the list of issues before the Board. INCREASED RATING Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When two evaluations are potentially applicable, VA will assign the higher evaluation when the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. VA will resolve reasonable doubt as to the degree of disability in favor of the Veteran. 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Board notes that where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2; see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the United States Court of Appeals for Veterans Claims (Court) held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Section 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Entitlement to a compensable disability rating for bilateral hearing loss is denied. The Veteran seeks entitlement to an increased rating for his bilateral hearing loss. The Veteran's hearing loss has been evaluated under 38 C.F.R. § 4.85, Diagnostic Code 6100. This diagnostic code sets out the criteria for evaluating hearing impairment using pure tone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85, and there is no room for subjective interpretation. See Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, and as measured by pure tone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second, or hertz (Hz). The rating criteria for hearing loss establish 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. The rows in Table VI (38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the row appropriate for the percentage of discrimination and the column appropriate to the pure tone decibel loss. The percentage disability evaluation is found from Table VII (38 C.F.R. § 4.85) by intersecting the row appropriate for the numeric designation for the ear having the better hearing acuity and the column appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent. 38 C.F.R. §§ 4.85(b), 4.87. In addition, under 38 C.F.R. § 4.86(a), when the pure tone threshold at each of the four specified frequencies, 1000, 2000, 3000, and 4000 Hz, is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Under 38 C.F.R. § 4.86(b), when the pure tone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results is the higher numeral. That numeral will then be elevated to the next higher Roman numeral. The Veteran contends that he is entitled to an increased rating for his service-connected bilateral hearing loss. In December 2010, the Veteran was afforded a VA examination for hearing loss. The chart below shows the pure tone thresholds, in decibels, revealed on authorized audiological evaluation, as well as the speech recognition of each ear revealed by the speech audiometry. HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 20 35 30 25 96% LEFT 10 25 45 40 30 94% It is necessary to apply the criteria found in 38 C.F.R. § 4.85 at Table VI to the Veteran's audiological examination. In so doing, the Veteran's results from the December 2010 VA examination yield a numerical designation of I for each ear. Entering the category designations for each ear into Table VII results in a noncompensable disability evaluation, providing evidence against his claim for a higher rating. In February 2020, the Veteran was afforded another VA examination for hearing loss. The chart below shows the pure tone thresholds, in decibels, revealed on authorized audiological evaluation, as well as the speech recognition of each ear revealed by the speech audiometry. HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 35 55 65 45 96% LEFT 30 45 70 75 55 96% It is necessary to apply the criteria found in 38 C.F.R. § 4.85 at Table VI to the Veteran's audiological examination. In so doing, the Veteran's results from the February 2020 VA examination yield a numerical designation of I for each ear. Entering the category designations for each ear into Table VII results in a noncompensable disability evaluation, providing evidence against his claim for a higher rating. Additionally, the Veteran's test results from both examinations do not indicate an exceptional pattern of hearing loss. Neither the December 2010 examination nor the February 2020 examination show that the pure tone threshold at each of the frequencies of 1000, 2000, 3000, and 4000 Hz was 55 decibels or more. Furthermore, the examination results do not show pure tone thresholds at 30 or less at 1000 Hz and 70 or more at 2000 Hz. See 38 C.F.R. § 4.86(a). Based on the foregoing, the Board finds that the Veteran's current noncompensable rating for hearing loss is correct, and a higher disability rating, on a schedular basis, is not warranted for this period. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. Lendenmann, 3 Vet. App. 345. Here, the valid audiological evaluations of record indicate that a compensable rating is not warranted based upon the Veteran's bilateral hearing loss disability. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to a disability rating in excess of 30 percent for degenerative joint disease of the left knee is remanded. See Argument Below 2. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the lumbar spine, prior to March 2, 2020, and in excess of 20 percent thereafter, is remanded. The Veteran contends that he is entitled to increased ratings for his service-connected left knee and back disabilities. Pursuant to the August 2018 Board remand directives, the Veteran was afforded VA examinations of the knees and back in March 2020. The Board notes that in 2016, a precedential opinion was issued by the Court. On July 5, 2016, the Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia interprets 38 C.F.R. § 4.59 to establish additional requirements that must be met prior to finding that a VA examination is adequate. In this case, the March 2020 VA examiner did not provide range of motion measurements in passive motion, weight-bearing, or non-weight-bearing for either knee or the lumbar spine. Furthermore, while the examination report noted pain on motion for each knee and the lumbar spine, the point during range of motion where pain started was not noted. The examiner did not provide an explanation as to why such testing was unnecessary. Therefore, the examination did not comply with the requirements in Correia, 28 Vet. App. at 168. The Board finds that new VA examinations of the knees and back are necessary. The Board also notes that, during the course of this appeal, the criteria for rating musculoskeletal disabilities changed effective February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Although it is unclear whether any of the changes in this case would impact the Veteran's ratings for his left knee and back, the Board finds that new comprehensive VA examinations of the left knee and back are warranted in light of the regulatory changes. Thus, remand is required for new full knee and back examinations so that the Board may properly rate the Veteran's left knee and lumbar spine disabilities under the applicable diagnostic code(s). In addition, the Veteran's representative has raised the issue seeking to challenge the competency and qualifications of the March 2020 VA examiner. See June 2021 informal hearing presentation (IHP). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran is required to raise a specific challenge to the competency of a VA examiner before VA is required to respond with information about the qualifications of the examiner. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), and Francway v. Wilkie, No. 2018-2136 (Fed. Cir. Oct. 15, 2019) (finding that a Veteran is required to challenge a VA examiner's competence in the first instance). The Board finds that the June 2021 IHP challenges the competency of the VA examiner which meets the Francway criteria. This challenge is beyond the general assertions of inadequacy and are sufficient to shift the burden of persuasion over to VA to establish the examiner's qualifications by providing information about those qualifications to the Veteran. As the Veteran's representative has provided adequate rationale challenging the competency of a prior VA examination, the Agency of Original Jurisdiction (AOJ) should provide the necessary requested educational and professional background information in compliance with Francway. As such a remand is warranted for additional development. 3. Entitlement to a compensable disability rating for tension headaches is remanded. The Veteran also contends that he is entitled to an increased rating for his service-connected tension headaches. Pursuant to the August 2018 Board remand directives, the Veteran was afforded a VA examination for his headaches in March 2020. The Board notes that the examiner of the knees and back also evaluated the Veteran's headaches in March 2020. As noted above, the Board finds that the June 2021 IHP challenges the competency of the March 2020 VA examiner which meets the Francway criteria. As such, a remand of this issue is also warranted for additional development. 4. Entitlement to a TDIU is remanded. As previously indicated, the Board finds that entitlement to a TDIU has been raised by the record. Rice, 22 Vet. App. at 453-54. The Board further finds that the issue of the Veteran's entitlement to a TDIU is inextricably intertwined with the issues remanded herein. Accordingly, the issue of entitlement to a TDIU must be deferred pending adjudication of the aforementioned appeal. See Henderson v. West, 12 Vet. App. 11, 20 (1998) (matters are "inextricably intertwined" where action on one matter could have a "significant impact" on the other). Furthermore, the Veteran should be given the opportunity to submit a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. The Board finds that, on remand, obtaining a VA Form 21-8940 would be helpful in determining the Veteran's employment status throughout the relevant period, education, and service-connected limitations. On remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. The AOJ should take appropriate action to respond to the requests of the Veteran and his representative and provide the necessary requested educational and professional background information in compliance with Francway, including copies of the curriculum vitae and other credentialing documents for the March 2020 VA examinations. 3. Provide the Veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, so as to afford him with an opportunity to provide a description of his employment history and educational background. 4. After completing the above development, schedule the Veteran for an examination by an appropriate clinician to determine the current level of severity of his service-connected left knee and back disabilities. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran's claims file should be obtained, in lieu of an in-person or virtual examination, addressing the severity of the Veteran's service-connected disabilities. The examiner should provide all information required for rating purposes, to specifically include range of motion of the back and each knee in active motion, passive motion, weight-bearing, and non-weight-bearing. Further, the examiner must indicate if movement is limited by pain, and if so, at what point. The examiner is requested, to the extent possible, to provide estimates of range of motion if the Veteran asserts he is unable to perform range of motion testing due to pain. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must report whether there is a lack of normal endurance or functional loss due to pain and pain on use, including that experienced during flare ups; whether there is weakened movement, excess fatigability, incoordination; and the effects of the service-connected disabilities on the Veteran's ordinary activity, including his ability to work. The examiner should also review the VA examinations containing range of motion findings pertinent to the Veteran's back and left knee conducted during the course of the appeal. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. The examiner should also ask the Veteran to identify the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups. The examiner should identify the extent of the Veteran's functional loss during flare-ups and offer range of motion estimates based on that information. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. The VA examiner should present findings necessary to consider the claim pursuant to the new musculoskeletal regulations. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 5. After completing all indicated development, the Veteran's claims, to include the issue of entitlement to a TDIU, should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.