Citation Nr: 18160454
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 16-59 338
DATE:	December 26, 2018
ORDER
Entitlement to an initial compensable rating for left ear hearing loss is denied.
REMANDED
Entitlement to service connection for a right knee disability is remanded.
FINDING OF FACT
The Veteran’s service-connected left ear hearing loss has been productive of no worse than Level I hearing impairment in his 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 (2012); 38 C.F.R. §§ 3.321, 3.385, 4.85, Diagnostic Code 6100 (2018).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from April 1978 to June 1978.
This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a February 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).
1. Entitlement to an initial compensable rating for left ear hearing loss
A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.
Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.
The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999).
The Veteran asserts that his service-connected left ear hearing loss warrants a higher, compensable disability rating. 
VA regulations provide a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a 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. 38 C.F.R. § 4.85. Table VII is used to determine the percentage rating by combining the Roman numeral designations for hearing impairment of each ear. A hearing examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test using the Maryland CNC test and a puretone audiometry test. VA audiometric examinations for rating purposes are to be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a).
Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, or other reasons, or when indicated under the provisions of 38 C.F.R. § 4.86. 38 C.F.R. § 4.85(c).  When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more or when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, 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.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately. 38 C.F.R. § 4.86.
During an August 2013 VA examination, the average for VA rating purposes was 30 dB in the left ear.  Speech discrimination scores using the Maryland CNC word list were 100 percent in the left ear.  The Veteran reported that his hearing loss causes him to have trouble hearing soft speech and distant speech.  
During a February 2017 VA examination, the average for VA rating purposes was 28 dB in the left ear.  Speech discrimination scores using the Maryland CNC word list were 100 percent in the left ear.  The Veteran reported that his hearing loss causes him to have trouble hearing soft speech and distant speech.  The Veteran needs raised voices, repeated speech, and visual cues in order to hear.
Evaluating the VA audiological test results cited above, when the puretone threshold averages and the speech recognition scores are applied to Table VI, the numeric designation of hearing impairment is no worse than level I for the left ear.  Because the right ear is not service connected, it is considered to be Level I for evaluation purposes under Diagnostic Code 6100. See 38 C.F.R. § 4.85(f). When these numeric designations from the VA examination are applied to Table VII, the percentage of disability for hearing impairment is noncompensable. 
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).  To the extent the Veteran may argue that the clinical data supports an increased disability rating, he is not competent to make that assertion.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  As indicated, the rating of hearing loss disabilities requires the administration of audiometric testing that is administered and interpreted by a professional.
In sum, the examinations document that during the period on appeal, the Veteran's service-connected left ear hearing loss was, at most, subject to a noncompensable disability rating. The preponderance of the evidence is against the claim, and it must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
The Veteran's counsel asserts that referral for extraschedular consideration is warranted to address the additional functional limitations caused by the Veteran's left ear hearing loss.  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).
The Court of Appeals for Veterans Claims (Court) has clarified the analytical steps necessary to determine whether referral for such consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, VA must determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology.  If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization.  If such factors are exhibited, then referral must be made to the Director of Compensation Service for extraschedular consideration.
The Board finds that the rating criteria for hearing loss contemplate the Veteran's left ear hearing loss disability.  His hearing loss is manifested by decreased hearing acuity, which makes it difficult to hear things around him clearly. A comparison between the level of severity and symptomatology of the Veteran’s assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe his disability level and symptomatology, including his difficulty hearing soft and distant speech. 
The Board notes that this conclusion is consistent with the Court’s holding in Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (“[W]hen a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria.”).  The Board further finds that other than difficulty hearing clearly or understanding speech, the record on appeal contains no evidence of other symptoms attributable to the service-connected hearing loss, such as dizziness, vertigo, or ear pain, not contemplated by the rating criteria.
Because the rating criteria reasonably describe the Veteran's disability level and symptomatology, the Board finds his disability picture is contemplated by the Rating Schedule, such that the assigned schedular evaluation is adequate. Therefore, no referral is required.  Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96; Chudy v. Rourke, No. 17-0082 Vet. App. (June 14, 2018).  The evidence does not demonstrate anything unique or unusual about the Veteran’s left ear hearing loss that would render the schedular criteria inadequate.

REASONS FOR REMAND
1. Entitlement to service connection for right knee disability is remanded.
The Veteran’s service treatment records indicate that he made a complaint in May 1978 regarding swelling and instability in his right knee.  During this examination, it was noted that the Veteran had dislocated his right knee prior to service.  He was subsequently medically discharged as a result of his right knee disability. 
The Board notes that prior to entering service in April 1978, the Veteran had a screening physical examination in which he noted no painful or trick joints and no illness or injury requiring repeated treatment by a doctor.  The Veteran was given an entrance physical as stated in the May 1978 request for separation memorandum, but that physical is not associated with the Veteran’s claims file.  Governing regulations provide that except for disabilities noted on induction, a Veteran is presumed sound.  Here, there are no noted disabilities on entry to the Veteran’s service.  Consequently, the presumption of soundness on entry to service applies as to the right knee.  See 38 U.S.C. § 1111; 38 C.F.R. § 3.304.
Since leaving service, the Veteran has continued to have problems with his right knee. According to a July 1999 private treatment record, the Veteran was diagnosed with arthritis in his right knee.  He ultimately had a total right knee replacement in October 2001.
The Veteran was afforded a VA examination for his right knee disability in August 2013.  The examination was based on a review of the entire claims file, and indeed, the examiner summarized the Veteran’s course of treatment.  The examiner acknowledged that the Veteran sustained an injury to his right knee during a fall during basic training that required him to be hospitalized but did not require surgery.  However, the examiner then concluded merely that the Veteran’s pre-existing right knee disability was not aggravated by any in-service injury, event or illness and that his “previous condition did not cause the total knee replacement.”
The Court has held that once VA undertakes the effort to provide an examination when developing a claim for service connection, even if not statutorily obligated to do so, it must provide an adequate one.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 464 (2007), citing Barr v. Nicholson, 21 Vet App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence… is essential for a proper appellate decision”).
Based on the above, the Board finds that a remand is necessary for a VA etiological opinion supported by an adequate rationale for the right knee.  See Barr, 21 Vet. App at 311.
The matter is REMANDED for the following action:
1. After obtaining any necessary releases, obtain all outstanding treatment records pertinent to the Veteran’s right knee disability.
2. Contact the examiner who performed the August 2013 VA examination or another appropriate medical professional and obtain an addendum opinion to determine the etiology of the Veteran’s right knee disability.  If an addendum would be insufficient to provide an adequate opinion, afford the Veteran a new VA examination.  The claims folder must be made available to the examiner for review in connection with the examination, and the examiner must acknowledge such review in the examination report.  The examiner must provide well-reasoned opinions on the following:
•	Is there clear and unmistakable (obvious or manifest, undebatable) medical evidence to demonstrate that a right knee disability existed prior to the Veteran’s entrance into service?
•	If a right knee disability clearly and unmistakably preexisted the Veteran’s active service, is there clear and unmistakable evidence that the disability was not aggravated beyond its natural progression during active service?
•	If a right knee disability is not found to have clearly and unmistakably preexisted service, is it at least as likely as not (50 percent probability or greater) that the disability was caused or aggravated by his active service?
A complete rationale must be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, he or she should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided.
The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions. If his reports are discounted, the examiner should provide a reason for doing so. 

 
CAROLINE B. FLEMING
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Christopher W. King, Law Clerk 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.