Citation Nr: 21042115 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-09 036 DATE: July 12, 2021 ORDER A compensable rating for left ear hearing loss is denied. REMANDED Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder, to include as secondary to a left knee disorder, is remanded. Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for sinusitis is remanded. FINDING OF FACT The Veteran's left ear hearing loss has been manifested by hearing acuity of no worse than Level III in the right ear and no worse than Level III in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1980 to July 1990. In July 2015, the Veteran filed a petition to reopen claims of service connection for his left shoulder disorder and sinus disorder, as well as an increased rating claim for his service-connected left ear hearing loss, which was assigned a noncompensable disability rating. In an October 2015 rating decision, the RO denied the claim, and the Veteran timely appealed. In March 2016, the Veteran filed a petition seeking to reopen a claim of service connection for his left knee disorder, and also submitted a new claim for service connection for a right knee disorder, to include as secondary to his claimed left knee disorder. In a March 2016 rating decision, the RO denied the Veteran's petition to reopen his left knee claim and denied the new claim for service connection for a right knee disorder. The Veteran timely appealed. A Board hearing was held in this matter before the undersigned Veterans Law Judge in June 2019. A copy of the transcript of the proceeding is associated with the Veteran's case file. In September 2019, the Board issued a decision that reopened the claims of service connection for a left shoulder disorder, sinus disorder, and left knee disorder, and remanded all of these issues, plus the right knee disorder and hearing loss claims, for additional development to include obtaining VA examinations. The case has now been returned to the Board for further adjudication. The issue of an increased rating for left ear hearing loss is addressed in the decision below. All remaining issues are addressed in the remand section. Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. Also of record are VA examinations conducted in January 2016, February 2017, and November 2019. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). 1. Entitlement to a compensable rating for left ear hearing loss. Hearing loss is evaluated under the provisions of 38 C.F.R. § 4.87, Diagnostic Code 6100, which provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I though XI) for hearing impairment, established by a state licensed audiologist including a mandatory controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85 (2018). Table VII is then used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. The provisions of 38 C.F.R. § 4.86 govern exceptional patterns of hearing impairment. Section (a) provides that when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) 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. Each ear will be evaluated separately. If impaired hearing is service-connected in only one ear, as here, the law allows for compensation for hearing loss as if both ears were service-connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non-service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, unless the non-service-connected hearing loss is the result of the Veteran's willful misconduct. See 38 C.F.R. § 3.383. To determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). In January 2016, the Veteran underwent a VA examination for his left ear hearing loss. Upon examination, the Veteran's puretone thresholds, in decibels, were as follows: Frequency (Hz) 1000 2000 3000 4000 (Average puretone threshold) Right 20 10 20 15 16.25 Left 20 15 25 40 25 Speech recognition scores, performed with the Maryland CNC test, were 80 percent in the right ear and 76 percent in the left ear. Applying the average puretone thresholds and speech recognition scores to Table VI reflects that the Veteran had Level III hearing loss in his left ear. Entering the numeric designations of Level I for the nonservice-connected right ear and Level III for the left ear into Table VII, the result is a 0 percent, or noncompensable, disability rating. 38 C.F.R. § 4.85. In February 2017, the Veteran underwent another VA examination for his left ear hearing loss. Upon examination, the Veteran's puretone thresholds, in decibels, were as follows: Frequency (Hz) 1000 2000 3000 4000 (Average puretone threshold) Right 15 5 25 20 16.25 Left 15 15 35 55 30 Speech recognition scores, performed with the Maryland CNC test, were 96 percent in the right ear and 90 percent in the left ear. Applying the average puretone thresholds and speech recognition scores to Table VI reflects that the Veteran had Level II hearing loss in his left ear. Entering the numeric designations of Level I for the nonservice-connected right ear and Level II for the left ear into Table VII, the result is a 0 percent, or noncompensable, disability rating. 38 C.F.R. § 4.85. In November 2019, the Veteran underwent a VA examination for his left ear hearing loss. Upon examination, the Veteran's puretone thresholds, in decibels, were as follows: Frequency (Hz) 1000 2000 3000 4000 (Average puretone threshold) Right 20 15 20 20 18.75 Left 15 15 25 50 26.25 Speech recognition scores, performed with the Maryland CNC test, were 100 percent in the right ear and 100 percent in the left ear. Applying the average puretone thresholds and speech recognition scores to Table VI reflects that the Veteran had Level I hearing loss in his left ear. Entering the numeric designations of Level I for the nonservice-connected right ear and Level I for the left ear into Table VII, the result is a 0 percent, or noncompensable, disability rating. 38 C.F.R. § 4.85. Based upon the results of the January 2016, February 2017, and November 2019 examinations noted above, the Board finds that the criteria for a compensable disability rating for left ear hearing loss have not been met for the entire period on appeal. There is also no evidence of an exceptional pattern of hearing during this time period to warrant an increased rating under 38 C.F.R. § 4.86. In so finding, the Board emphasizes that 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. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, in this case, such an opinion falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). To the extent that the Veteran contends that his hearing loss is more severe than currently evaluated, while he is competent to describe that he has difficulty hearing, he is not competent to report that his hearing acuity is of sufficient severity to warrant a certain percent evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment) which he does not possess. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372. While the Board is sympathetic to the Veteran's assertions, the VA rating criteria are definitive and provide for a precise result based on audiometric test results. His subjective report of difficulty hearing, alone, unfortunately cannot be the basis for an evaluative rating. The Board is bound to apply the VA rating schedule, under which the rating criteria are defined by audiometric test findings involving hearing acuity in a controlled laboratory environment. As a result, the Board finds the results of the January 2016, February 2017, and November 2019 VA examinations, all of which noted puretone thresholds and speech recognition scores that result in a noncompensable disability rating, to be more probative than the lay evidence, and the Veteran's request for a disability rating for left ear hearing loss in excess of 0 percent must be denied. There is no evidentiary basis upon which to assign a higher rating during the appellate period. As the preponderance of the evidence is against the Veteran's claim for a rating in excess of 0 percent for left ear hearing loss, the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disorder is remanded. 2. Entitlement to service connection for a right knee disorder, to include as secondary to a left knee disorder is remanded. 3. Entitlement to service connection for a left shoulder disorder is remanded. 4. Entitlement to service connection for sinusitis is remanded. The Board finds that additional development is warranted in this case before a decision may be rendered on the Veteran's claim for service connection for left knee disorder, right knee disorder, left shoulder disorder, and sinusitis. Although addendum opinions were obtained in September 2020 and new VA examinations were obtained in June 2021, the examiners' opinions did not fully consider and address the Veteran's contentions concerning the in-service onset and continuity of symptomatology of his claimed left knee, left shoulder, and sinusitis disorders. Rather, to the extent that any opinions were offered, the examiners reasoned only that there was a 20-year gap in treatment following service. Once VA undertakes the effort to provide an examination or opinion when developing a claim, it must provide an adequate one. See Woehlaert v. Nicholson, 21 Vet. App. 456, 464 (2007), citing Barr, 21 Vet. App. at 311. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician to determine the current diagnosis and etiology of his claimed left and right knee disorder. If an in-person or telehealth examination is found to be present, such must be arranged. The entire claims file, including this remand, must be made available to the examiner. All opinions must be supported by a thorough rationale. The examiner must diagnose all right and left knee disorders found to be present at any point during the appeal period. The examiner must offer an opinion as to each of the following: (a) Whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed left knee disorder had its onset in service, within one year of service separation, or is otherwise related to service. In rendering this conclusion, the examiner must discuss the Veteran's March 1983 service treatment records that document treatment of knee pain consistent with the Veteran's contention of injuries he sustained from hitting his knees against a hatch, and his credible reports of ongoing symptomatology thereafter. (b) Whether it is at least as likely as not that any diagnosed right knee disorder had its onset in service, within one year of service separation, or is otherwise related to service. In rendering this conclusion, the examiner must discuss the Veteran's March 1983 service treatment records that document treatment of knee pain consistent with the Veteran's contention of injuries he sustained from hitting his knees against a hatch, and his credible reports of ongoing symptomatology thereafter. (c)Whether it is at least as likely as not that any diagnosed right knee disorder was caused by the Veteran's claimed left knee disorder. (d)Whether it is at least as likely as not that any diagnosed right knee disorder has been aggravated by the Veteran's claimed left knee disorder. 2. Obtain an addendum opinion from an appropriate clinician to determine the current diagnosis and etiology of his claimed left shoulder disorder. If an in-person or telehealth examination is found to be present, such must be arranged. The entire claims file, including this remand, must be made available to the examiner. All opinions must be supported by a thorough rationale. The examiner must diagnose all left shoulder disorders found to be present at any point during the appeal period. For each such disorder, the examiner must opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the disorder had its onset in service, within one year of service separation, or is otherwise related to service. In rendering this conclusion, the examiner must discuss the Veteran's service treatment records that document treatment of left shoulder pain due to injuries sustained from a motor vehicle accident in service, and his credible reports of ongoing symptomatology thereafter. 3. Obtain an addendum opinion from an appropriate clinician to determine the current diagnosis and etiology of his claimed sinus disorder. If an in-person or telehealth examination is found to be present, such must be arranged. The entire claims file, including this remand, must be made available to the examiner. All opinions must be supported by a thorough rationale. The examiner must diagnose all sinus disorders found to be present at any point during the appeal period. For each such disorder, the examiner must opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the disorder had its onset in service or is otherwise related to service. In rendering this conclusion, the examiner must discuss the Veteran's multiple service treatment records, dated in October 1981, November 1981, March 1983, and June 1983 that document treatment of sinus congestion and sinus headaches, and his credible reports of ongoing symptomatology thereafter. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Jiggetts 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.