Citation Nr: 22017455 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 19-28 889 DATE: March 25, 2022 ORDER Prior to April 12, 2021, a rating in excess of 30 percent for residuals of right knee arthroplasty is denied. From April 12, 2021, a rating of 60 percent, but not higher, for residuals of right knee arthroplasty is granted. Service connection for hearing loss is granted. FINDINGS OF FACT 1. Prior to April 12, 2021, the Veteran's right knee disorder, status post-knee replacement surgery, was manifested by no worse than intermediate residual weakness, pain or limitation of motion. 2. From April 12, 2021, the Veteran's right knee disorder resulted in chronic residuals consisting of severe painful motion or weakness in the affected extremity. 3. The Veteran's hearing loss is due to his in-service noise exposure. CONCLUSIONS OF LAW 1. Prior to April 12, 2021, the criteria for a rating in excess of 30 percent for residuals of right knee arthroplasty have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5055. 2. From April 12, 2021, the criteria for a 60 percent rating, but not higher, for residuals of right knee arthroplasty have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5055. 3. The criteria for service connection for hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1972 to April 1976. The case is on appeal from a March 2018 rating decision. In April 2021, the Veteran testified at a Board hearing. The claims came before the Board in June 2021 and were remanded for further development. The Board also granted an initial 10 percent rating for scar of the left knee, status post replacement surgery, and for scar of the left shoulder, status post replacement surgery. Thus, this issue is no longer on appeal. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating General Rating Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Staged ratings are appropriate whenever 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). An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). In determining when an increase is "factually ascertainable," all of the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000); VAOPGCPREC 12-98. Thus, "it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); see also Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). 1. A rating in excess of 30 percent for the right knee arthroplasty. Specific Legal Criteria The Veteran underwent a right total knee replacement in May 2014. Thus, his right knee disability is evaluated under 38 C.F.R. § 4.71a, DC 5055. Under DC 5055, a 100 percent evaluation is assigned for prosthetic replacement of the knee joint for one year following implantation of prosthesis. The minimum rating for this disability is 30 percent based on intermediate degrees of residual weakness, pain or limitation of motion, rated by analogy to DCs 5256, 5261, or 5262. Outside periods of temporary total ratings, the maximum rating under DC 5055 is 60 percent based on chronic residuals consisting of severe painful motion or weakness in the extremity. During the course of this appeal, the schedular rating for evaluating knee replacements under DC 5055 was amended effective February 7, 2021. See 85 Fed. Reg. 76, 453 (Nov. 30, 2020, as corrected). The schedular criteria for DC 5055 are more restrictive as they now provide for a 100 percent rating for only four months instead of one year; otherwise, the criteria are the same. See 38 C.F.R. § 4.71a, in effect from February 7, 2021. Generally, a change in rating criteria during the pendency of the claim applies prospectively, if more favorable. Here, the changes to the rating criteria have no impact, as the Veteran's right knee replacement surgery occurred in May 2014. Analysis The Veteran submitted a January 2018 claim for an increased right knee rating in excess of the 30 percent rating assigned. Thereafter, the Veteran was afforded a February 2018 VA examination in which he reported no flare-ups of his right knee disorder. He indicated he experiences right knee clicking. Range of motion testing revealed flexion to 105 degrees and no evidence of pain with weight bearing. No further reduction in motion was indicated after repetitive testing. No ankylosis was found. Further, the examiner indicated there were no residuals of the 2014 total knee replacement surgery, along with no evidence of pain in weight bearing, non-weight bearing and with passive motion. The Veteran was afforded an August 2018 VA examination in which he reported no flare-ups of his right knee. He indicated he feels pain and instability and that his right knee may give way with each step. Range of motion testing revealed flexion to 130 degrees and no evidence of pain during testing. No further reduction in motion was indicated after repetitive testing. The examiner opined the Veteran has no residuals of the 2014 right knee surgery. She further stated there is no evidence of pain in weight bearing and with non-weight bearing. Shortly thereafter, the Veteran was afforded a December 2018 VA examination which revealed similar results to the prior right knee examinations. He reported no flare-ups of his right knee disorder and range of motion testing showed no reduction in motion and no evidence of pain with testing. No further reduction in motion was indicated after repetitive testing. The examiner additionally opined the Veteran has no residuals of the 2014 right knee surgery. The Board notes the Veteran was afforded an August 2020 VA examination in which the examiner did not address the potential residuals in the Veteran's right knee related to his May 2014 replacement surgery. Thereafter, the Veteran was afforded an April 2021 Board hearing in which he testified that his right knee has worsening symptoms, including increased instability and pain. He stated due to the right knee disorder, he requires a walker, a cane and a brace. He further reported he has significant painful motion and weakness, along with trouble getting in and out of his car. The claim came before the Board in June 2021 and was remanded for further development, including a VA examination to assess the severity of the right knee disorder. The Veteran was afforded a July 2021 VA examination which shows that he has worsening right knee symptoms. The Veteran reported that he has continuous chronic pain and stiffness, which is 8 out of 10 in severity. The Veteran stated he can ambulate up to 50 yards with a walker and has to use a powered wheelchair for grocery shopping. The examiner noted he has pain with weight bearing, as well as interference with standing, swelling, disturbance of locomotion and less movement than normal. He indicated the Veteran requires a cane, walker, crutches and a brace due to his right knee disability. Further, the examiner stated the Veteran has intermediate degrees of residual weakness, pain or limitation of motion due to the right knee replacement surgery. The Veteran was afforded an October 2021 VA examination in which he reported flare-ups, including severe pain and swelling which can last for several days. The examiner found he has difficulty walking, and experiences instability and swelling. She noted pain with weight bearing, non-weight bearing, active and passive motion and during rest. The examiner further indicated the Veteran's right knee arthroplasty causes chronic residuals consisting of severe painful motion or weakness. Upon review of the evidence, the Board finds that an increased right knee rating to 60 percent is supported from April 12, 2021, the date of the Board hearing, under DC 5055. From that date, the Veteran's right knee disorder exhibited symptoms approximating chronic residuals consisting of severe painful motion or weakness. However, prior to April 12, 2021, a right knee rating in excess of 30 percent is not supported. With regard to the earlier period, the Veteran's right knee disorder was manifested by no worse than intermediate residual weakness, pain or limitation of motion. The Veteran was afforded VA examinations in February 2018, August 2018 and December 2018 in which the examiners found no residuals of the May 2014 total right knee replacement surgery. Additionally, such examiners reported no evidence of pain with weight bearing, non-weight bearing and with passive motion. Thus, prior to April 12, 2021, the medical evidence of record supports no worse than intermediate degrees of residual weakness, pain or limitation of motion, suggestive of the minimum 30 percent rating under DC 5055. From the April 2021 hearing, the Board finds the Veteran has severe, chronic residuals of the right knee replacement consisting of severe painful motion or weakness in the knee. Thus, an increased rating to 60 percent is warranted from April 12, 2021. In this regard, the Veteran stated during the April 2021 Board hearing that his right knee has worsening symptoms, including increasing instability and pain. The later VA examination reports confirmed these worsening symptoms. Moreover, the July 2021 VA examiner indicated he has continuous chronic pain and stiffness, with pain during weight bearing, interference with standing, swelling and disturbance of locomotion. The October 2021 examiner stated the Veteran reported flare-ups, including severe pain and swelling. Further, the examiner indicated the Veteran's right knee arthroplasty causes chronic residuals consisting of severe painful motion or weakness, suggestive of a 60 percent rating. As such, the evidence supports the Veteran experiences severe right knee impairment related to his replacement surgery from April 12, 2021. The Board notes April 12, 2021 is the earliest date that an increased level of disability can be ascertained, when reasonable doubt is resolved in the Veteran's favor. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Swain, 27 Vet. App. at 219. The Board has considered whether it may be appropriate to rate the Veteran's right knee disability under other DCs or whether a separate rating is warranted. DC 5055 contemplates all residuals up to the 30 percent level of impairment, and only DCs 5256, 5261, or 5262 are potentially applicable for an increased rating. However, as the evidence does not show ankylosis, extension to 30 degrees or worse, even with painful motion and other factors, or nonunion of the tibia and fibula, an increased rating under a separate DC is not warranted. Further, the Board acknowledges the Veteran's reports of right knee instability and giving way throughout the appeal period. However, the Board finds that this symptom is contemplated in the ratings assigned under DC 5055, as these evaluations include weakness and are intended to compensate for all residuals of a knee replacement. Thus, to assign a separate rating under 38 C.F.R. § 4.71a, DC 5257, would constitute improper pyramiding. 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In sum, the Board determines an increased rating to 60 percent is warranted from April 12, 2021, as the Veteran's right knee approximated chronic residuals consisting of severe painful motion or weakness from that date. However, prior to April 12, 2021, the evidence is persuasively against a rating in excess of 30 percent, as there is not an approximate balance of positive and negative evidence in favor of a further increased rating. The benefit-of-the-doubt doctrine has been applied and further increased ratings aside from that granted herein are not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Service Connection General Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 2. Service connection for hearing loss. Specific Legal Criteria 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, 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. Analysis The Veteran contends that his in-service noise exposure led to his current hearing loss. Alternatively, for his left ear hearing loss, he asserts the disorder preexisted service and was aggravated by such. The Board notes the Veteran's service treatment records (STRs) include a January 1972 enlistment examination, which showed hearing impairment of 35 decibels for the left ear at the frequency of 4000 Hertz. The Veteran's service personnel records (SPRs) show his military occupational specialty (MOS) was a jet engine mechanic, an MOS with a high probability of noise exposure. Thus, his in-service noise exposure is established. Following his January 2018 claim, the Veteran was afforded a February 2018 VA examination in which bilateral hearing loss was found. See 38 C.F.R. § 3.385. The examiner indicated that the Veteran's hearing loss was not related to service. With regard to the right ear hearing loss, the examiner stated medical literature supports that based on the current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss is unlikely. She noted there is insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after such noise exposure. She stated given that there was no significant shift in right ear hearing during the Veteran's service, as well as no complaint or treatment for hearing impairment, his right ear hearing loss is less likely than not associated with service. With regard to his left ear, the examiner opined hearing loss was documented at enlistment. However, she stated since there was no significant threshold shift noted during service, it appears less likely than not that the pre-existing left ear hearing loss was aggravated by the in-service noise exposure. The Veteran was afforded a November 2019 VA audiological examination. The examiner also opined the Veteran's hearing loss is not related to service. She stated the Veteran's left ear hearing loss preexisted service and was not aggravated therein. The examiner opined although the Veteran was exposed to hazardous noise during service, the 2005 medical report for Noise and Military Service found there to be no support for noise induced hearing loss occurring with a delayed onset of years from the exposure. She reported there is no significant shift in hearing based on the Veteran's separation audiogram in September 1975 and he worked as an aircraft mechanic following service. With regard to the left ear hearing loss, the examiner stated the disorder preexisted service and was not aggravated beyond the normal progression during service. During the Veteran's April 2021 Board hearing, he testified he was exposed to extreme hazardous noise during his four years of service, and this exposure led to his current hearing loss. He stated he was around engines, including in the same room, and often removed any hearing protection that was afforded to him. He further indicated he was around aircrafts, including "T-37s" and "T-38s," which were exceedingly loud. He stated following service, he worked for General Electric and was always required to wear hearing protection. Thereafter, the claim was remanded by the Board in June 2021 for further development, including a VA opinion to determine the etiology of his hearing loss. Two July 2021 VA opinions were obtained that provided negative nexus opinions. These examiners opined the Veteran's separation examination shows no threshold shift from his enlistment examination and there is no objective medical data which supports that his in-service noise exposure caused his hearing loss. The examiners further noted the Veteran's current hearing loss is attributable to aging and post-service noise exposure. In contrast, a September 2021 VA opinion was provided that supports that the Veteran's hearing loss is associated with service. The examiner indicated the Veteran had significant military noise exposure with limited use of hearing protection for four years, and his MOS had a high probability of hazardous noise exposure. Thus, she opined the Veteran's hearing loss at least as likely as not had its onset during, or is otherwise related to, service, to include his established in-service hazardous noise exposure. The Board determines the Veteran's bilateral hearing loss is related to service. The Veteran has current bilateral hearing loss and VA has conceded his in-service noise exposure. Additionally, the record contains VA medical evidence in favor of and against the claim. Although the February 2018, November 2019 and July 2021 VA opinions were against the claim, the September 2021 examiner's opinion was in favor of the hearing loss claim. As noted, the September 2021 VA opinion stated the Veteran's significant military noise exposure for four years associated with his MOS caused his current bilateral hearing loss. Therefore, the Board finds the evidence has reached a level of equipoise as to whether the Veteran's bilateral hearing loss is related to service, including his in-service noise exposure as a jet engine mechanic. Thus, when resolving reasonable doubt in the Veteran's favor, the Board finds that his current hearing loss is due to his in-service noise exposure. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for hearing loss is warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Isaacs, Brandon 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.