Citation Nr: 18132325
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-28 166
DATE:	September 6, 2018
ORDER
Service connection for bilateral hearing loss is restored, effective July 1, 2013.
From May 24, 2011, a rating of 10 percent, but not higher, for left elbow scar is granted, subject to the law and regulations governing the payment of monetary benefits.
From May 24, 2011, a separate rating of 10 percent, but not higher, for left knee instability is granted, subject to the law and regulations governing the payment of monetary benefits.
REMANDED
Service connection for a right knee disorder is remanded.
Service connection for low back disorder is remanded.
A rating in excess of 10 percent for osteoarthritis of the left knee is remanded.
A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded.
 
FINDINGS OF FACT
1. The evidence does not show that the original grant of service connection for bilateral hearing loss in March 2010 was clearly and unmistakably erroneous.
2. From May 24, 2011, the Veteran’s service-connected left elbow scar has produced pain.
3. From May 24, 2011, the Veteran’s left knee disability has been productive of slight instability.
CONCLUSIONS OF LAW
1. The criteria for the severance of service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 1131, 1154(b), 5109; 38 C.F.R. §§ 3.105(d), 3.303.
2. From May 24, 2011, the criteria for a rating of 10 percent, but not higher, for left elbow scar have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code (DC) 7804, 7805.
3. From May 24, 2011, the criteria for a separate rating of 10 percent for left knee instability have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, DC 5257.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from Jun 1975 to June 1979.
The case is on appeal from rating decisions from the Department of Veterans’ Affairs (VA) Regional Office (RO).
In April 2018, the Veteran testified at a Board of Veterans’ Appeals (Board) videoconference hearing.
1. Severance of service connection for bilateral hearing loss is restored effective July 1, 2013.
The Veteran asserts that VA improperly severed service connection for bilateral hearing loss because there is sufficient credible supporting evidence of record showing that he was exposed to hazardous noise during service as an infantryman and further, that such exposure led to his current hearing loss.  The Board agrees, and restores service connection for bilateral hearing loss effective July 1, 2013.
Once service connection has been granted, it can only be severed where the evidence establishes that the grant was clearly and unmistakably erroneous (the burden being on the Government), and only where certain procedural safeguards have been met.  Stallworth v. Nicholson, 20 Vet. App. 482, 487 (2006); Daniels v. Gober, 10 Vet. App. 474, 478 (1997).  Severance of service connection based on any standard less than that set forth in 38 C.F.R. 3.105(d) is erroneous as a matter of law.  Stallworth, 20 Vet. App. at 488; Graves v. Brown, 6 Vet. App. 166, 170 (1994); see also Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991).
In Stallworth, the United States Court of Appeals for Veterans Claims (Court) recognized that 38 C.F.R. 3.105(d) contemplates consideration of evidence that post-dates the award of service connection and that VA is not limited to the law and the record that existed at the time of the original decision.  Id. at 488; see also Allen v. Nicholson, 21 Vet. App. 54, 59 (2007).  In fact, the Court noted that the regulation specifically allows a change in medical diagnosis to serve as a basis for severance.  Indeed, in Stallworth, the Court, quoting Venturella v. Gober, 10 Vet. App. 340, 343 (1997), reiterated, “[i]f the Court were to conclude that . . . a service-connection award can be terminated pursuant to § 3.105(d) only on the basis of the law and record as it existed at the time of the award thereof, VA would be placed in the impossible situation of being forever bound to a prior determination regardless of changes in the law or later developments in the factual record.”  Id. at 488.  The Stallworth Court added, “[c]onsequently, the severance decision focuses not on whether the original decision was clearly erroneous but on whether the current evidence established that service connection is clearly erroneous.”  Id.
The Court has stated that clear and unmistakable error is a very specific and rare kind of error.  It is the kind of error of fact or law that, when called to the attention of reviewers, compels the conclusion, to which reasonable minds could not differ, that the results would be manifestly different but for the error.  See Fugo v. Brown, 6 Vet. App. 40, 43 (1993).  To warrant revision of a decision on the ground of clear and unmistakable error in a severance of service connection case, there must have been an error in the adjudication of the appeal that, had it not been made, would have manifestly changed the outcome, i.e., whether, based on the current evidence of record, a grant of service connection would be clearly and unmistakably erroneous.  See Stallworth.
The Board finds that the competent and credible medical and lay evidence of record, both pre-dating the RO’s grant of service connection and post-dating its severance, is not sufficient to warrant severance of service connection for bilateral hearing loss.  The Board notes the Veteran’s in-service noise exposure is conceded, as his military occupational specialty (MOS) was an infantryman.  He competently reported he was exposed to consistent machine gun fire in a scout platoon, as well as helicopter noise during service.  Additionally, the positive February 2010 VA examination report established the Veteran suffered from significant hearing loss in both ears and noted the Veteran’s hearing loss was related to his in-service noise exposure.  The examiner stated the Veteran’s service records indicated his hearing was normal upon entry into service and that he received a medal for expert for use of M-16 guns, and was also exposed to helicopter noise.  Thus, he concluded the type of noise the Veteran was exposed to would lead to hearing loss.
The Veteran was afforded May 2011 and March 2012 VA examinations by the same VA examiner who concluded the Veteran’s hearing was normal in his right ear and normal to moderate in his left ear.  She stated the Veteran was malingering during the examination.  In March 2012, the examiner indicated she continued to support her prior conclusion, including that the Veteran’s hearing was normal in the right ear and normal to moderate in the left ear.  She stated since the Veteran’s hearing was normal at military discharge, with no significant threshold shift, it is less likely than not that the Veteran’s hearing loss is related to his in-service noise exposure.
The Board notes the Veteran was afforded a June 2016 VA examination in which the audiological results show the Veteran suffers from current bilateral hearing loss.  38 C.F.R. § 3.385.  No etiology opinion was provided by the examiner.
The Board notes VA has conceded the Veteran experienced exposure to hazardous noise in service due to his MOS as an infantryman.  The issue before VA, therefore, was whether the Veteran currently suffers from hearing loss, and whether such is related to service.  As noted, the Court has stated that a severance decision regarding service connection focuses not on whether the original decision was clearly erroneous but on whether the current evidence established that service connection is clearly erroneous.  See Stallworth.  In this case, there is competent and credible evidence in favor of and against the Veteran’s claim for entitlement to service connection for hearing loss and reasonable minds could differ on the outcome.  Moreover, it cannot be said that the evidence of record compels a conclusion to which reasonable minds could not differ.  Such a finding is required for the Board to determine that the March 2010 grant of service connection for bilateral hearing loss was clearly and unmistakably erroneous.  As VA has not met the high evidentiary burden of showing clear and unmistakable error, the severance of service connection for bilateral hearing loss, effective July 1, 2013, was improper, and the rating must be restored as of that date.
Increased Rating
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.
2. A rating of 10 percent for left elbow scar is granted. 
The Veteran contends that his current left elbow scar is compensable as it causes pain.
The record shows that the Veteran is service-connected for a left elbow scar associated with a documented in-service motor vehicle accident which caused a laceration over the left olecranon.  Service connection for a left elbow scar was granted in a November 1983 rating decision and a noncompensable rating was assigned from July 27, 1983, under DC 7805.
DC 7804 provides that unstable or painful scars are rated as follows: 10 percent for one or two scars; 20 percent for three or four scars; and 30 percent for five or more scars.  38 C.F.R. § 4.118.
DC 7805 directs that any other disabling effects of a scar not described in Code 7802 or 7804, are to be evaluated under an appropriate DC.  Id.
The Veteran was afforded a May 2011 VA examination in which the Veteran reported pain in the left elbow scar.  He stated he had been experiencing pain for the prior two months, especially when performing household chores.  However, the examiner indicated there was no pain found in the left elbow scar upon examination and no adherence to underlying tissue.  He noted the scar is also not unstable and is without frequent loss of covering of the skin.
The Veteran was afforded a November 2015 VA examination in which the examiner indicated the left elbow scar was not painful or unstable.  However, during the April 2018 Board hearing, the Veteran reported that his left elbow scar is tender and painful, especially when it is pressed.
In light of the Veteran’s competent, credible report that his left elbow scar is painful, the Board finds that a 10 percent rating is warranted from May 24, 2011, which satisfies the Veteran’s appeal of this claim.  See April 2018 transcript of Board hearing.This 
3. A separate rating of 10 percent for left knee instability is granted.
The Veteran is currently service-connected for ostearthritis of his left knee, rated at 10 percent under DC 5260, from April 26, 2011.  Under DC 5260, which evaluates limitation of flexion, a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees.  38 C.F.R. § 4.71a, DC 5260.
Separate ratings under DC 5260 and DC 5261 may be assigned for disability of the same knee joint.  See VAOPGCPREC 9-2004. Additionally, VAOPGCPREC 23-97 held that a claimant who has both arthritis and instability of the knee may receive two separate disability ratings under DCs 5003-5010 and DC 5257 (or under DCs 5258-9) without violating the prohibition of pyramiding of ratings.  It was specified that, for a knee disorder already rated under DC 5257, a claimant would have additional disability justifying a separate rating if there is limitation of motion under DC 5260 or DC 5261.
During the May 2011 VA examination, the Veteran reported constant left knee pain, as well as instability.  The examiner indicated there is painful motion, as well as flare-ups, which additionally limit his movement.
Additionally, the Veteran testified during the April 2018 Board hearing that his left knee gives out and is unstable.  He indicated when he walks long distances or carries any weight his knee tends to become unstable and give out.  He indicated there are five occasions where his knee gave out causing him to fall.
Resolving all reasonable doubt in the Veteran’s favor, the Board finds the Veteran has instability of the left knee, that is slight in severity.  Accordingly, a rating of 10 percent for left knee instability is warranted under DC 5257, from May 24, 2011.
REASONS FOR REMAND
1. Service connection for a right knee disorder is remanded.
2. Service connection for low back disorder.
The Veteran contends he currently suffers from low back and right knee disorders which had their onset during service.  Alternatively, the Veteran asserts the disorders are were caused or aggravated by his service-connected left knee disability, including from an altered gait.  The Board notes the Veteran is service-connected for a left knee disability from June 22, 1979, the date after his separation from service.
The Veteran’s service treatment records contain an August 1977 record which indicated a bruised right knee, including with some swelling and stiffness.  There is no other indication of complaints or treatment related to his right knee and none related to his low back.  However, there is a documented December 1978 motor vehicle accident which left the Veteran hospitalized.  Additionally, his MOS was an infantryman which included extended marching.
The Veteran testified during the April 2018 Board hearing that he has current low back and right knee disorders are related to his duties during service as an infantryman.  He indicated his MOS required a lot of marching and carrying heavy objects and equipment for extended periods of time.  He stated he walked as much as 58 miles on a march.  He noted he also recalls falling in a creek bed with hard rocks, although he only sought treatment from the battalion medic and there was no documentation of the injury in his service treatment records.  Additionally, he testified that his long-term left knee injury may have altered his gait and led to his right knee or low back conditions.
Therefore, as no VA examination has been provided for either disorder, the Board determines a remand is required to accord the Veteran a VA medical examination.  The examiner must address the nature and etiology of any current right knee and back disabilities, to include his contentions of secondary service connection.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).
3. A rating in excess of 10 percent for osteoarthritis of the left knee is remanded.
4. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded.
The Board finds that the issue of an increased rating for the left knee disability must be remanded to provide the Veteran with a new VA examination.
The Veteran was afforded a May 2011 VA examination in which he reported constant left knee pain, instability and flare-ups.  He noted when he suffers a flare-up, his left knee pain increases to 9 out of 10 and that such flares occur daily.  The examiner indicated the Veteran’s movement would be additionally limited during a flare-up.
Since the Veteran’s last VA examination more than seven years ago, the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017) addressed the adequacy of a VA examiner’s opinion concerning additional functional loss during flare-ups of a musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must “elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record, including the veteran’s lay information, or explain why [he or] she c[an] not do so.”
The Board finds that remand is also required to ensure compliance with the holdings of Correia, specifying 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 nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  See Correia v. McDonald, 28 Vet. App. 158 (2016).  As the Veteran’s previous left knee examination did not satisfy all these requirements, a new examination must be provided.  In light of the forgoing, the Board finds that the Veteran should be afforded a new VA knee examination that complies with the holdings of Correia and Sharp.
With regard to a TDIU, the Veteran claims he is disabled from any substantially gainful employment due to his service-connected disabilities, including his left knee disability.  As the claim for a TDIU is intertwined with the left knee increased rating claim, the TDIU claim must be remanded as well.  Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim).
In light of the remand, VA must obtain updated VA treatment records.
The matters are REMANDED for the following action:
1. Obtain VA treatment records from January 2018.
2. Thereafter, schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature and etiology of any diagnosed right knee and low back disorder.  He or she should also opine as to the current nature and severity of the service-connected left knee disability.  All indicated tests and studies should be performed.
(a) The examiner should diagnose any right knee and low back disorder the Veteran has had at any point during the appeal.
(b) The examiner is to then provide an opinion as to whether it is at least as likely as not that any diagnosed right knee and/or low back disability had its onset during, or is otherwise causally related to, service, to include any in-service treatment or the December 1978 motor vehicle accident.
(c) The examiner should provide an opinion as to whether it is at least as likely as not that any diagnosed right knee and/or low back disability was caused or aggravated by the service-connected left knee disability.
The examiner must address both direct and secondary service connection as well as theories of causation and aggravation.  The examiner must also address the lay evidence of record, including the April 2018 Board hearing testimony, and include a complete rationale for all opinions expressed.
(d) With regard to the left knee, the examiner should address the current severity of the left knee disability.
The examiner should test the joint for pain on both active and passive motion, in weight-bearing and nonweight-bearing.
The examiner should comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion.  The examiner should also offer an estimate as to additional functional loss during flares regardless of whether the Veteran is undergoing a flare-up at the time of the examination.
The examiner should state whether the examination is taking place during a period of flare-up.  If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms.
The examiner should also discuss the frequency and severity of the Veteran’s left knee instability, including during any periods of flare-up.

 
STEVEN D. REISS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	B. Isaacs, Associate Counsel 

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