BVA9508406 DOCKET NO. 93-14 673 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to an increased rating for chondromalacia of the left knee, currently evaluated as 10 percent disabling. 3. Entitlement to a compensable rating for chondromalacia of the right knee. 4. Entitlement to a compensable rating for a scar of the left forearm. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christine E. Puffer, Associate Counsel INTRODUCTION The veteran had active service from August 1961 to September 1971, with a prior unverified period of service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1989 rating decision of the Department of Veterans Affairs (VA) Philadelphia, Pennsylvania, Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that his service-connected chondromalacia of the knees, bilaterally, and scar of left forearm are more severely disabling than the current evaluations reflect. He avers that the evaluations for those conditions should not have been reduced as none of those disabilities have improved since the time that they were first service-connected. He maintains that he was exposed to acoustic trauma in service, and that his currently diagnosed hearing loss was incurred in service. It is requested that he be granted the benefit of every reasonable doubt. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that service connection for bilateral hearing loss is not warranted, increased ratings for chondromalacia of the left knee and a scar of the left forearm are not warranted, and that an increased rating for chondromalacia of the right knee is warranted. FINDINGS OF FACT 1. All evidence necessary for an equitable adjudication of the instant claim has been obtained by the RO. 2. Bilateral sensorineural hearing loss, which was first shown many years after service, is not shown to be of service origin. 3. Chondromalacia of the veteran's left and right knees is manifested by chronic pain in both knees, some hypertrophic changes and crepitation, with minimal tenderness over the suprapatellar area on the right side, and slight mediolateral collateral ligament instability of the left knee joint. 4. The veteran's scar of the left forearm is well-healed with a soft tissue defect, and recurring eczematous dermatitis controlled with medication. CONCLUSIONS OF LAW 1. Bilateral high frequency sensorineural hearing loss was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1994). 2. The schedular criteria for an evaluation in excess of 10 percent for chondromalacia of the left knee have not been satisfied. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1994). 3. The schedular criteria for a compensable evaluation of l0 percent for chondromalacia of the right knee have been satisfied. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5257 (1994). 4. The schedular criteria for a compensable evaluation for a scar of the left forearm have not been satisfied. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.118, Diagnostic Code 7804 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Bilateral sensorineural hearing loss The veteran contends that he was exposed to acoustic trauma while serving in the field artillery that resulted in his current bilateral high frequency sensorineural hearing loss. He reports that he had a hearing deficiency in 1966, and has cited two in- service audiograms as evidence that hearing loss first manifested in service. In order to obtain service connection, there must be both evidence of a disease or injury that was incurred in or aggravated by service, and a present disability which is attributable to such disease or injury. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. When a chronic disease is shown during service subsequent manifestations of the same disease are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only when the condition noted during service is not shown to be chronic or the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may be established by presumption if a veteran served for 90 days or more during a period of war, and an organic disease of the nervous system, such as sensorineural hearing loss, became manifest to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.304(b), 3.307, 3.309. On November 25, 1994, the VA published an amended 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 59 Fed. Reg. 60,560 (1994) (to be codified at 38 C.F.R. § 3.385. See Heuer v. Brown, No. 93-992, slip op. at 8 (U.S. Vet. App. Feb. 7, 1995). The VA is required to apply a regulation adopted during the pendency of a case when the regulation is more favorable to a claimant, unless the Secretary has specified to the contrary. Id. quoting West v. Brown, 7 Vet.App. 70, 76 (1994). The Secretary has not so specified with respect to the amended § 3.385. The veteran reported in a letter received in May 1993 that he had been receiving treatment from a VA audiological clinic "for several years." He cited his service in the Field Artillery during the Korean Conflict and the Vietnam war as evidence of acoustic trauma. Treatment records from the clinic reveal that the veteran complained of having gradually progressive bilateral hearing loss at an audiological evaluation in November 1987. He was assessed with mild to moderate sensorineural, high frequency, bilateral hearing loss, and received hearing aids. A review of the veteran's service medical records reveals no indication that the veteran at any time complained of, or received treatment for, hearing loss during service. The veteran has submitted photocopies of August 1961 and February 1966 reports of medical examinations as evidence that he first manifested hearing loss in service. The August 1961 report documents that the veteran underwent audiological testing which revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 5 (15) -0 (10) 0 (5) LEFT 5 (20) -0 (10) 0 (10) 0 (5) The figures in the parentheses represent audiometric findings pursuant to ANSI/ISO standards. Prior to October 31, 1967, audiometric findings were reported pursuant to ASA standards. The figures in parentheses are provided for purposes of data comparison. As the highest thresholds reported were five decibels, the veteran clearly did not manifest hearing loss at that time. At the time of his February 1966 audiological testing, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 (10) 0 (10) 5 (15) 5 (10) LEFT 5 (20) 5 (15) 15 (25) 40 (45) Although the veteran appears to have demonstrated an elevated threshold in his left ear at the 4000 decibel range, no finding or diagnosis relating to hearing loss was reported by the examiner. Contemporaneous service medical records similarly contain no complaints, findings or diagnosis relative to hearing loss. Furthermore, two subsequent reports of examinations, of November 1966 and April 1971, indicate that the veteran failed to manifest an elevated threshold in either ear at any decibel level. In light of these findings, the noted single elevated level in 1966 appears to have been an incorrect reading, and cannot be accepted as true evidence of chronic hearing loss. Of the various reports of medical examinations from December 1948 to April 1971, none contain any credible evidence that the veteran sustained any hearing loss during service. There is no evidence that the veteran manifested hearing loss within a year after service, and he was first diagnosed with mild to moderate bilateral sensorineural hearing loss in 1987, 16 years after service. Furthermore, despite his recent contentions of experiencing hearing loss since service, the Board observes that the veteran did not list hearing loss among the numerous disabilities for which he sought service connection in a July 1971 application for compensation benefits. Although the veteran has related to examiners that his hearing loss originated in service, he has offered no credible medical evidence or opinion establishing the same. In view of the totality of the evidence, the Board concludes that service connection is not warranted for bilateral sensorineural hearing loss. II. Chondromalacia of the right and left knees By rating decision of October 1971, the veteran was granted service connection for chondromalacia of both knees, each knee evaluated as 10 percent disabling. On the basis of an October 1989 VA examination, the veteran's rating was reduced to noncompensably disabling by rating action of November 1989. However, by rating action of March 1993, the veteran was granted a 10 percent evaluation for chondromalacia of the left knee on the basis of evidence of slight instability. As chondromalacia of the knees is not a disability that is subject to temporary or episodic improvement, and the Board finds that the October 1989 examination was as full and complete as the original one on which service connection was granted, 38 C.F.R. § 3.344 is not for application. The veteran is presently contending that his bilateral knee condition has not improved, and that the October 1989 VA examination on which his reduction was initially based failed to include evaluation of his knee pain and difficulty ambulating since being injured in Vietnam. At the time of the October 1989 VA examination, the examiner noted crepitation of both knees, with active extension to zero and flexion to 135 degrees, bilaterally. No muscle spasm, swelling or instability were noted. Both knees evidenced no diminution in strength, and deep tendon reflexes were within normal limits. A relevant diagnosis of chondromalacia of both knees was offered. When examined in February 1993, the veteran reported that he experienced chronic pain with crepitus in both knees, and occasional instability in his left knee while walking. The symptomatology resulted in limitation of the veteran's physical activities, and worsened in inclement weather. He took no medication. On examination, both knees evidenced some hypertrophic change of the mediolateral and tibial plateau area; otherwise, there was no apparent deformity or evidence of joint effusion. Minimal tenderness was evident over the suprapatellar area on the right side, with slight mediolateral collateral ligament instability of the left knee joint. Active extension and flexion, bilaterally, were measured as zero to 135 degrees, with full muscle strength. Grinding test, McMurray's test and drawer sign were negative, bilaterally. The assessment was chronic pain with strain in both knee joints. Radiological examination of the veteran's knees, bilaterally, was normal. The veteran's bilateral chondromalacia of the knees is evaluated pursuant to Diagnostic Code 5257, for other impairment of the knee. 38 C.F.R. § 4.71a. That section directs that a 10 percent rating is warranted for recurrent subluxation or lateral instability that is slight, 20 percent for moderate, and 30 percent for severe. In light of the veteran's consistent findings regarding ranges of motion, the Board notes that Diagnostic Codes 5260 and 5261 are not for application. A recent VA examiner noted that the veteran had slight mediolateral collateral ligament instability in his left knee joint and crepitus, and cited the veteran's report of some instability when walking. The veteran's recent outpatient treatment records fail to contain any evidence of complaints or treatment regarding either knee, although it is noted that he suffers from several other debilitating conditions. An October 1992 progress note entry documented the veteran's report that he continued to be able to split wood and mow three acres of land. The evidence of record contains no objective clinical findings which would support a finding that the veteran manifests more than slight lateral instability of his left knee. Therefore, a rating in excess of 10 percent is not warranted. The Board notes that the veteran's present rating reflects the VA's intention to recognize painful motion as productive of disability, and entitled to at least the minimal compensable rating for the affected joint. See 38 C.F.R. § 4.59. No examiner has ever found that the veteran suffers from recurrent subluxation or instability of his right knee, nor has the veteran contended otherwise. He has, however, consistently reported that he experiences pain in the right knee joint, especially upon use or weather changes. The ratings schedule is intended to recognize painful motion with joint pathology as productive of disability, and entitled to at least the minimum compensable rating for the joint. Crepitation is to be noted as evidence of a diseased point of contact. Id. The veteran has been observed to have crepitation of both knees, as well as some hypertrophic mediolateral and tibial plateau area changes. Furthermore, objective evidence of pain was noted over the suprapatellar area on the right side. In view of the veteran's reports of pain in his right knee, and the noted objective evidence of pain, hypertrophic changes and crepitus of the right knee, the Board concludes that the veteran is entitled to a 10 percent evaluation for chondromalacia of his right knee. In reaching its decisions, the Board has considered the complete history of the disabilities in question as well as the current clinical manifestations and the effect the disabilities may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. The nature of the original injuries has been reviewed and the functional impairment which can be attributed to pain or weakness has been taken into account. 38 C.F.R. § 4.40. The manifestations of the veteran's chondromalacia of the right and left knees are not so exceptional or unusual so as to warrant evaluations in excess of 10 percent on an extra-schedular basis. It has not been shown that either disability has caused marked interference with employment or necessitated frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). III. Scar of the left forearm At the time of the October 1989 VA examination, it was noted that the veteran had sustained a gunshot wound to his left forearm. A well-healed scar with a soft tissue defect of 7.5 by 3 centimeters was noted on the ventral aspect of the veteran's left forearm. When examined in January 1993, the veteran reported that he had experienced recurring eczematous dermatitis of his scars which was controlled with medication. Examination of his left forearm revealed marked soft tissue loss with a scar of the volar surface of his left wrist, with an irregular "Y" shaped scar of dorsal aspect of his forearm where a skin flap had been rotated to cover a major defect that was 10 centimeters large. The veteran's scar is rated pursuant to Diagnostic Code 7804, which provides that a maximum 10 percent evaluation is to be assigned for superficial scars that are tender and painful on objective demonstration. 38 C.F.R. § 4.118. However, the veteran's scar has consistently been found to be well-healed, with no evidence of ulceration, tenderness or associated pain. As such, the veteran fails to meet the criteria for a compensable evaluation. The veteran's scar could also be evaluated under Diagnostic Code 7806, for excema. However, in order to warrant even a noncompensable evaluation under that section, the veteran would have to manifest slight, if any, exfoliation, exudation or itching, if on a nonexposed surface or small area. As there is no evidence of any present dermatitis associated with the veteran's noted scar, a compensable evaluation is not warranted under any of the diagnostic codes relating to dermatological conditions. Furthermore, the Board notes that the veteran is separately rated for the residuals of the gunshot would with fracture of the ulnar and pathology of the ulnar nerve. Therefore, to rate the scar on the basis of the underlying constitutional symptoms or physical impairment associated with the residuals of the gunshot wound would serve only to evaluate the same manifestation under a different diagnosis, which is to be avoided. See 38 C.F.R. § 4.14. In reaching its decision, the Board has considered the complete history of the disability in question as well as the current clinical manifestations and the effect the disability may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. The manifestations of the veteran's left forearm scar are not so exceptional or unusual so as to warrant a compensable evaluation on an extra-schedular basis. For example, it has not been shown that the left forearm scar syndrome has caused marked interference with employment or necessitated frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). ORDER Service connection for bilateral hearing loss is denied. An increased evaluation for chondromalacia of the left knee is denied. An increased evaluation of l0 percent for chondromalacia of the right knee is granted, subject to law and regulations governing the payment of monetary benefits. A compensable evaluation for a left forearm scar is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.