Citation Nr: 18160643
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-16 649
DATE:	December 27, 2018
ORDER
Entitlement to an increased rating for service-connected thoracolumbar strain, to include an initial rating in excess of 20 percent prior to October 16, 2017, and a rating in excess of 40 percent thereafter, is denied.
Entitlement to an initial compensable rating for service-connected left knee strain prior to October 16, 2017, is denied.
Entitlement to a rating in excess of 10 percent for service-connected left knee strain with painful, limited motion from October 16, 2017 is denied.
Entitlement to a rating excess of 10 percent for service-connected left knee strain with instability from October 16, 2017 is denied.
Entitlement to an initial compensable rating for service-connected bilateral hearing loss is denied.
FINDINGS OF FACT
1. Prior to October 16, 2017, the Veteran’s thoracolumbar spine disability was manifested by forward flexion limited to no less than 90 degrees, even with pain, after repetitive use testing, and during flare-ups. Beginning October 16, 2017, the Veteran’s forward flexion was limited to 25 degrees even with pain and after repetitive use testing; however, the evidence dated prior to and after October 16, 2017 does not reflect that the thoracolumbar spine disability was manifested by unfavorable ankylosis of the thoracolumbar or entire spine or intervertebral disc syndrome with incapacitating episodes as defined by the schedular criteria.
2. Prior to October 16, 2017, the Veteran’s left knee strain was manifested by subjective complaints of occasional pain and stiffness which did not result in any functional impairment, to include ankylosis, recurrent subluxation, lateral instability, dislocated or removed semilunar cartilage, limitation of motion, impairment of the tibia or fibula, or genu recurvatum.
3. From October 16, 2017, the Veteran’s left knee strain was manifested by normal extension, flexion limited to no less than 120 degrees, no more than slight lateral instability, and functional loss due to pain as demonstrated by painful motion in active and passive motion, as well as weight and non-weight-bearing testing.  
4. Throughout the appeal period, the Veteran’s audiometric testing has revealed no worse than Level I hearing in the left and right ears.
CONCLUSIONS OF LAW
1. Prior to October 16, 2017, the schedular criteria for an initial rating in excess of 20 percent for thoracolumbar strain are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. Part 4, including §§ 4.7, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2018).
2. For the period after October 16, 2017, the schedular criteria for a rating in excess of 40 percent for thoracolumbar strain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.7, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.
3. Prior to October 16, 2017, the criteria for an initial compensable rating for left knee strain have not been met.  38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.31, 4.40, 4.45, 4.59, 4.71a, DCs 5256-5263.
4. From October 16, 2017, the criteria for a rating in excess of 10 percent for left knee strain with instability have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5257.
5. From October 16, 2017, the criteria for a rating in excess of 10 percent for left knee strain with painful, limited motion have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5260.
6. The criteria for a compensable rating for bilateral hearing loss have not been met at any point during the appeal period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.383, 4.1, 4.3, 4.7, 4.85, 4.86, DC 6100.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active service from May 2006 to May 2012.  
Increased Rating
1. Entitlement to an increased rating for service-connected thoracolumbar strain, to include an initial rating in excess of 20 percent and a rating in excess of 40 percent from October 16, 2017.
The Veteran is seeking a higher disability rating for his service-connected thoracolumbar spine disability, which is awarded a staged rating under DC 5237 and the General Rating Formula for Diseases and Injuries of the Spine. Accordingly, the Board will consider whether the Veteran’s thoracolumbar spine disability warrants an initial rating higher than 20 percent from May 2012 (the date of receipt of his service connection claim) to October 16, 2017, and a rating higher than 40 percent after October 16, 2017. 
The evidence shows that, prior to and after September 8, 2014, the Veteran’s thoracolumbar spine disability was manifested by pain and stiffness with occasional flare-ups, which resulted in increased pain with bending, lifting, prolonged sitting and running. The Veteran has also demonstrated limited range of motion in his mid to lower back. See e.g., February 2013 statement from Dr. Guerrero; May 2013 VA treatment record; January 2014 VA Knee examination; October 2017 VA Knee examination.   
For the period prior to October 2017, in order to warrant a higher, 40 percent schedular rating, the evidence must show the Veteran’s thoracolumbar spine disability was manifested by forward flexion limited to 30 degrees of less or favorable ankylosis of the entire thoracolumbar spine. In this case, however, the pertinent evidence of record (dated prior to October 2017) shows the Veteran’s forward flexion was limited to no less than 90 degrees, even with pain and after repetitive use testing.  See January 2014 VA examination.  Additionally, while the Veteran reported having flare-ups during the January 2014 VA examination, the examiner noted that additional factors, such as pain, weakness, fatigability, or incoordination did not significantly limit his functional ability during flare-ups.  Therefore, a rating higher than 20 percent under DC 5237 and the General Rating Formula for Diseases and Injuries of the Spine prior to October 2017 is not warranted. 
During the October 2017 VA examination, the Veteran’s forward flexion was limited to 25 degrees and, as a result, the RO increased the Veteran’s disability rating to 40 percent.  See October 2017 rating decision.  In order to warrant a higher 50 or 100 percent rating, the evidence must show the Veteran’s thoracolumbar spine disability was manifested by unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. 
In this case, while the evidence dated after October 2017 shows the Veteran’s thoracolumbar spine continued to be manifested by limited range of motion, the Veteran remained able to demonstrate movement in his thoracolumbar spine, as the October 2017 VA physician specifically noted the Veteran did not have ankylosis in his thoracolumbar spine, to include a functional impairment approximating immobility or ankylosis in his middle to lower back as a result of pain, weakness, stiffness, guarding, or during flare-ups or repetitive use testing. There is also no lay or medical evidence of record showing the Veteran has ever demonstrated ankylosis in his entire spine during the appeal period. Therefore, a rating higher than 40 percent under DC 5237 and the General Rating Formula for Diseases and Injuries of the Spine after October 2017. 
There is also no competent lay or medical evidence of record showing the Veteran’s thoracolumbar spine disability has been manifested by IVDS or has otherwise resulted in incapacitating episodes as defined by the Formula for Rating Intervertebral Disc Syndrome (IVDS) on the Basis of Incapacitating Episodes. Therefore, a higher rating for the Veteran’s thoracolumbar spine disability is not warranted at any point during the appeal period based upon that criterion. 
The Board notes that the General Rating Formula for Diseases and Injuries of the Spine directs VA to separately evaluate any objective neurological abnormalities associated with a spinal disability under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235-5243). In this case, however, the lay and medical evidence of record does not reflect that the Veteran’s thoracolumbar spine disability is manifested by radiculopathy or other neurologic abnormalities to warrant a separate rating.  
Therefore, the Board finds the preponderance of the evidence is against the grant of a rating higher than 20 or 40 percent for the service-connected thoracolumbar spine disability prior to or after October 16, 2017, respectively. As a result, the benefit-of-the-doubt doctrine is not for application and his claim is denied.
2. Entitlement to an increased rating for service-connected left knee strain, to include an initial compensable rating prior to October 16, 2017 and ratings in excess of 10 percent for limited motion and instability from October 16, 2017.
The Veteran is seeking a higher disability rating for his service-connected left knee strain, which is awarded a staged rating prior to and after October 2017.  
In this case, the evidence dated prior to October 2017 consists of the January 2014 VA knee examination report which reflects that the Veteran reported having flare-ups of pain and stiffness in his left knee during which he had to limit his physical fitness routine.  Despite the Veteran’s subjective report of occasional pain and stiffness, he was able to demonstrate full range of motion in his left knee (from zero degrees of extension to 140 degrees of flexion) without evidence of pain or additional limitation after repetitive use testing.  While the examiner noted the Veteran’s pain could significantly limit his functional ability during a flare-up, he was unable to express the additional limitation in terms of degrees because the Veteran could not replicate a flare-up during the examination.  Otherwise, however, the examiner noted the Veteran did not have any functional limitation or impairment in his left knee and further noted that objective evaluation of the knee revealed normal muscle strength and joint stability and no evidence of subluxation, dislocation, or shin splints in the left knee joint.  
Given the foregoing, the Board finds the preponderance of the evidence is against the grant of a compensable rating for the left knee disability prior to October 16, 2017, as the evidence reflects that the disability was not manifested by ankylosis, recurrent subluxation, lateral instability, dislocated or removed semilunar cartilage, limitation of motion, impairment of the tibia or fibula, genu recurvatum, or any symptomatology which would warrant a compensable rating under any potentially applicable diagnostic code.  See 38 C.F.R. § 4.71a, DCs 5256 to 5263.  In this regard, the Board again notes that, despite the Veteran’s subjective complaints of pain and stiffness, the pertinent lay and medical evidence does not reflect that his occasional pain and stiffness resulted in any functional impairment that could be quantified or evaluated under the rating schedule.  See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).  Therefore, a compensable rating is not warranted prior to October 2017.  38 C.F.R. § 4.31.  
During the October 2017 VA knee examination, the Veteran demonstrated normal extension to zero degrees but his flexion was limited to 120 degrees.  While there was no additional limitation of motion after repetitive use testing, the examiner noted that pain, which was noted on passive range of motion, weight-bearing and non-weight-bearing testing, caused a functional limitation in the left knee but the examiner could not express the limitation in terms of degrees because the Veteran was not experiencing a flare-up at the time of the examination.  In this context, the Board notes that the Veteran denied having flare-ups during the examination and, as noted, did not demonstrate any additional limitation of motion after repetitive use testing.  Nevertheless, objective examination revealed lateral instability to no more than 5 millimeters in the left knee, which the examiner characterized as slight and noted was accompanied by frequent left knee effusion.  There was, however, no evidence of recurrent patellar dislocation, shin splints, or any other tibial or fibular impairment; nor was there evidence of the Veteran having a condition involving his semilunar cartilage.  
Based on the foregoing, the RO awarded separate 10 percent ratings from October 16, 2017, for left knee strain with instability under DC 5257 and left knee strain with painful, limited flexion under DC 5260 and 38 C.F.R. § 4.59.  
After reviewing the pertinent evidence, the Board finds ratings higher than 10 percent are not warranted for instability or painful, limited motion for the period beginning October 2017.  Indeed, while the Veteran demonstrated lateral instability in his left knee, his instability was between zero to 5 millimeters and did not involve instability anteriorly, posteriorly, or medially.  The Board also finds probative that the Veteran has not provided any lay or medical evidence which document consistent reports of giving way or instability or diffuse joint instability or laxity in the knee.  Therefore, the Veteran’s instability is no more than slight, which is consistent with the 10 percent rating currently assigned under DC 5257.
As for limited motion, the pertinent evidence shows the Veteran demonstrated normal extension to zero degrees and flexion limited to 120 degrees, neither of which is compensable under DCs 5260 and 5261.  As noted above, the evidence reflects the Veteran experienced functional loss due to painful motion in the left knee joint, which is contemplated by the 10 percent rating currently assigned under DC 5260 and 38 C.F.R. § 4.59.  However, without evidence of flexion limited to 30 degrees or extension limited to 10 or more degrees, to include as a result of pain or after repetitive use testing, ratings higher than 10 percent are not warranted based upon limitation of flexion or extension.    
The evidence dated from October 2017 does not reflect that the Veteran’s left knee joint is manifested by ankylosis, dislocated or removed semilunar cartilage, an impairment of the tibia or fibula, or genu recurvatum.  Therefore, DCs 5256, 5258, 5259, 5262 and 5263 are not for application in this case. 
Accordingly, for the foregoing reasons and bases, the Board finds the preponderance of the evidence is against the grant of an initial compensable rating for service-connected left knee strain prior to October 16, 2017, as well as ratings higher than 10 percent for instability or limitation of motion.  As a result, the benefit-of-the-doubt doctrine is not for application and his claim is denied.
3. Entitlement to an initial compensable rating for service-connected bilateral hearing loss
The Veteran is seeking a compensable initial rating for his service-connected bilateral hearing loss. 
The criteria for rating hearing impairment utilize the results of 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. 
The evidentiary record contains VA audiological examinations conducted in January 2014 and October 2017, which are considered the most competent, reliable, and probative evidence of record. 
The results of the January 2014 examination indicate there was an average pure tone threshold in the Veteran’s left ear of 35 decibels, while the average pure tone threshold in the right ear was 23.75 decibels. The Veteran’s speech recognition was 100 percent in both ears. See January 2014 VA examination. Evaluating these test scores using Table VI shows that the Veteran’s hearing acuity is at Level I in both his left and right ear, which results in a noncompensable (zero percent) disability rating under Table VII. 
Likewise, the October 2017 VA examination indicates there was an average pure tone threshold in the Veteran’s left ear of 33 decibels, with speech recognition of 98 percent, while the average pure tone threshold in the right ear was 21 decibels, also with speech recognition of 98 percent. See October 2017 VA examination. Therefore, under Table VI, the Veteran’s hearing acuity was at Level I in both ears, which results in a noncompensable (zero percent) disability rating under Table VII. The Veteran has not alleged that his hearing has worsened since this last examination and the Board finds that the evidence of record is adequate for rating purposes.
Notably, the pure tone thresholds recorded during the January 2014 and October 2017 VA examinations do not reflect exceptional hearing impairment in either ear, as pure tone thresholds at each of the four specified frequencies was not 55 decibels or more. Therefore, a compensable rating also is not warranted based upon an exceptional pattern of hearing loss under 38 C.F.R. § 4.86. 
As shown above, the evidence does not reflect that the Veteran’s bilateral hearing impairment has been more disabling than as noted above. Therefore, a staged rating is not warranted for the Veteran’s bilateral hearing disability.
In evaluating this claim, the Board acknowledges that the Veteran has bilateral hearing loss and sympathizes with his complaints regarding the functional impact of his hearing loss on his daily life, including difficulty understanding conversation and trouble hearing in noisy environments; however, the assignment of disability ratings for hearing impairment is derived from a mechanical formula and the VA examiners addressed the functional effects of the Veteran’s hearing loss on his daily activities. Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007).
Based on the foregoing, the Board finds the most competent and probative evidence of record shows that the Veteran’s service-connected bilateral hearing loss is entitled to no higher than a zero percent disability rating, as reflected on Table VII of 38 C.F.R. § 4.85. Therefore, the preponderance of the evidence is against the grant of a compensable rating for the Veteran’s bilateral hearing loss at any point during the appeal period and the benefit-of-the-doubt doctrine is inapplicable.
 
M. Donohue
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A.J. Turnipseed, Counsel 

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