BVA9502765 DOCKET NO. 93-08 378 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Restoration of a 10 percent rating for service-connected chondromalacia, right knee, currently evaluated as noncompensably disabling. 2. Whether the evidence is sufficient to support an increased (compensable) evaluation for service-connected bilateral hearing loss. 3. Entitlement to an increased evaluation for service-connected tinnitus, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher P. Kissel, Associate Counsel INTRODUCTION The appellant served on active duty from May 1966 to May 1969. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Pittsburgh, Pennsylvania, Department of Veterans Affairs Regional Office (VARO). The undersigned notes that the issues currently listed on the title page of this decision are subject to appellate consideration by the Board at this time. See Hearing Officer's Decision, p. 2 (February 10, 1992). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that his service-connected right knee disability is of sufficient severity as to warrant restoration of the previously assigned 10 percent disability rating. He argues that the medical evidence of record does not establish sustained improvement of this disability. He further contends that his service-connected bilateral hearing loss and tinnitus disabilities are more disabling than currently evaluated. He, therefore, requests entitlement to increased disability evaluations for these disabilities. 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(s). 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 the preponderance of the evidence supports restoration of a 10 percent disability evaluation for the appellant's service-connected right knee disability. However, it is the decision of the Board that the preponderance of the evidence is against the appellant's claims seeking higher disability evaluations for his service-connected bilateral hearing loss and tinnitus disabilities. FINDINGS OF FACT 1. Reduction of the appellant's 10 percent disability rating in August 1990 was not based upon sufficient medical evidence demonstrating material improvement in the service-connected right knee disability; the medical evidence of record reveals consistent findings of pain on flexion motion of the right knee. 2. The appellant's bilateral hearing loss is currently manifested by moderate to severe sensorineural hearing loss in the higher frequencies with excellent speech recognition scores. 3. On VA audiological examination in November 1991, the appellant reported complaints of bilateral tinnitus. CONCLUSIONS OF LAW 1. The criteria for restoration of the noncompensable disability evaluation to 10 percent disabling, effective from August 1, 1990, for the appellant's right knee disability are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.344, 4.13, Diagnostic Code 5257 (1993). 2. The appellant's bilateral hearing loss does not warrant a compensable schedular disability rating. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.85, Diagnostic Code 6100 (1993). 3. The appellant's service-connected tinnitus is no more than 10 percent disabling pursuant to the schedular criteria. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 3.321(b), Part 4, Diagnostic Code 6260 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claims are well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). Furthermore, the undersigned believes that this case has been adequately developed for appellate review purposes by the VA, and that a disposition on the merits is now in order. I. Restoration Claim The appellant is seeking restoration of the 10 percent disability evaluation for his service-connected right knee disability. 38 C.F.R. § 3.344 (1993). The Board has carefully reviewed the pertinent medical evidence, including the appellant's entire medical history. 38 C.F.R. § 4.1 (1993); Peyton v. Derwinski, 1 Vet.App. 282 (1991). The Board believes that the 10 percent disability rating for the appellant's right knee disability should not have been reduced to a noncompensable rating. According to the Rating Schedule, slight impairment of the knee manifested by recurrent subluxation or lateral instability is rated 10 percent disabling, moderate impairment is rated 20 percent disabling, and a 30 percent rating is assigned for severe impairment of the knee. 38 C.F.R. Part 4, Code 5257 (1993). VA examinations (VAX) in November 1982 and April 1986 were consistently significant for findings showing essentially full range of motion of the right knee but with pain and/or discomfort with flexion motion of that knee. Diagnosis on VAX in 1982 was "[c]hondromalacia, right knee, symptomatic"; diagnosis in 1986 was "... history of chondromalacia patellae, at times symptomatic." On VAX in February 1990, the results of which formed the basis for VARO's decision to reduce his 10 percent rating to noncompensable, the examiner noted a diagnosis of "[h]istory of chondromalacia patellar right, symptomatic." Clinical findings on that examination continued to show full range of motion but with discomfort on extreme flexion of the right knee. Clinical findings on an orthopedic examination in December 1990, conducted by the Pennsylvania Bureau of Disability Determination, as well as on the most recent VAX conducted in November 1991, were similarly consistent, showing negative knee pathology except for slight limitation of motion (130/140 degrees on flexion on VAX) but again manifested by the appellant's subjective complaints of pain on motion. Diagnostic testing in May and June 1991 (x-rays, arthrogram) at the Oakland Orthopedic Association, Pittsburgh, PA, confirmed the above findings (essentially negative pathology except for 1+ patellofemoral crepitus). In view of these findings, and together with the appellant's current complaints and extent of overall functional impairment, which has remained essentially unchanged since service connection for a right knee disability was established in 1978, the Board is of the opinion that the medical evidence of record does not demonstrate sustained improvement and, therefore, is insufficient to justify a reduction of the appellant's 10 percent disability rating. See 38 C.F.R. §§ 3.344(a), 4.13 (1993) and Brown v. Brown, 5 Vet.App. 413, 419 (1993) (although material improvement in the physical condition may be reflected, the rating agency must consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life), construed in Schafrath v. Derwinski, 1 Vet.App. 589, 594-95 (1991). The appellant's contentions of record, including his sworn testimony elicited at hearing held at VARO in September 1991, as well as reported complaints taken in a clinical setting on multiple VAXs clearly reflect symptoms of painful motion of the right knee on flexion. Since these complaints have remained consistent through the years and appear to be the significant factor of his disability picture, the undersigned does not believe "material improvement" has been shown in this case. See Payne v. Derwinski, 1 Vet.App. 85 (1990) (functional loss due to pain must be considered in the context of the disability rating). Accordingly, restoration of a 10 percent disability rating for the appellant's right knee disability is warranted, effective from August 1, 1990, the date of reduction. Based on the objective medical evidence of record, the undersigned believes that the disability picture presented supports a 10 percent disability evaluation according to the schedular criteria set forth under diagnostic code 5257, for essentially "slight" impairment of the knee manifested by the appellant's subjective complaints of pain and/or discomfort with flexion motion of his knee. A higher schedular rating under code 5257 is not warranted due to the clinical findings of record which show no more than his subjective complaints of pain with motion. A higher rating by analogy under codes 5256, 5258, 5260-1 or 5262 is also not warranted since clinical findings of record show no evidence of ankylosis of the knee, cartilage loss with frequent episodes of locking, pain and joint effusion, limitation of motion on extension of the leg or on flexion limited to 30 degrees, or impairment of the tibia and fibula. Application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (1993). There is no evidence that the service-connected right knee disability presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Hence, referral by VARO to VA officials under the above-cited regulation was not required. II. Increased Rating Claims The appellant is seeking higher disability evaluations for his service-connected hearing loss disabilities (bilateral hearing loss, rated noncompensably disabling, and tinnitus, rated 10 percent disabling). 38 U.S.C.A. § 1155 (West 1991). Bilateral Hearing Loss Service medical records reflect a diagnosis of bilateral high frequency hearing loss. The more recent medical evidence pertinent to the appellant's service-connected bilateral hearing loss consists of the reports of VA audiological examinations conducted at the VA Medical Center (VAMC), Pittsburgh, PA, in February 1990 and November 1991. Average pure tone thresholds, in decibels, on the authorized VA audiological examination in February 1990 were as follows: HERTZ 1000 2000 3000 4000 Average LEFT 15 55 85 100 64 RIGHT 20 55 85 90 63 Speech audiometry revealed speech recognition ability of 86 percent correct in the right ear and 90 percent correct in the left ear. The VAMC's Chief of Audiology and Speech Pathology Service, stated the following concerning the results of the above: The right ear showed normal hearing for pure tones up through 1500 [Hertz] with moderate to severe sensorineural impairment progressing through the higher frequencies. Speech recognition was mildly impaired. The left ear showed a similar pattern for pure tone sensitivity but with slightly poorer hearing in the higher frequencies. Speech recognition was mildly impaired. The veteran reported bilateral ringing [tinnitus]. (Paragraph breaks added for clarity). Clinical findings on VA audiological examination in November 1991 were essentially unchanged compared to those found on examination in February 1990. Average pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average LEFT 20 55 85 100 65 RIGHT 20 55 85 95 64 Speech audiometry revealed improvement in speech recognition ability (94 percent correct in the right ear and 96 percent correct in the left ear). The VAMC's Chief of Audiology and Speech Pathology Service, stated the following concerning the results of the above: Pure tone sensitivity was within normal limits in the lower and middle frequencies up through 1500 [Hertz] with moderate to severe impairment in the higher frequencies. Both ears showed a similar pattern. Speech discrimination was excellent bilaterally. The veteran has reported ringing in both ears. According to the VA's Schedule for Rating Disabilities, evaluations for bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity. Hearing loss is measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000 and 4,000 cycles per second. 38 C.F.R. § 4.85, Part 4, Codes 6100-6110 (1993). To evaluate the degree of disability from the service-connected bilateral defective hearing, the rating schedule provides 11 numeric designations from level I for essentially normal acuity through XI for profound deafness. Id. In the opinion of the Board, the current disability picture presented with respect to the appellant's bilateral hearing loss does not support a compensable disability evaluation. Based on the results of the VA audiological examination conducted in February 1990, the numeric designation of hearing impairment for a 64-decibel hearing loss with 90 percent speech discrimination in the left ear is III. The numeric designation for the right ear (63-decibel, 86 percent speech discrimination) is also III. With the application of the schedular criteria, Table VII of 38 C.F.R. § 4.85 (1993), these test results warrant a noncompensable evaluation under diagnostic code 6100. The results of VA audiological examination conducted in November 1991 are equivalent: The numeric designation of hearing impairment for a 64-decibel hearing loss with 94 percent speech discrimination in the right ear is II; the numeric designation for the left ear (65-decibel, 96 percent speech discrimination) is also II. Again, application of the schedular criteria to these findings produces a noncompensable evaluation under code 6100. The evaluations derived from the rating schedule are intended to make proper allowance for improvement by hearing aids, and examinations to determine such improvement are, therefore, unnecessary. See 38 C.F.R. § 4.86 (1993). As such, the payment of additional compensation based solely upon the fact that the appellant requires the use of assistive devices such as hearing aids is inconsistent with the purpose of VA compensation. See 52 Fed. Reg. 44,118 (1987). In summary, the degree of hearing impairment as shown by the recent medical findings does not establish a level of severity for which a compensable rating is warranted under the applicable law and regulations. While the Board is sympathetic to the appellant's complaints concerning the practical difficulties he experiences in everyday life secondary to his bilateral hearing loss, the Board is constrained by a mechanical application of the facts in this case to the applicable law and regulations. See Lendenmann v. Principi, 3 Vet.App. 345 (1992). Tinnitus Since the appellant is currently receiving the maximum schedular evaluation of 10 percent for his service-connected tinnitus, the Board does not believe a higher disability rating is warranted in this case. 38 C.F.R. § 3.321(b), Part 4 Diagnostic Code 6260 (1993). There is no evidence of record which shows that the tinnitus condition presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The appellant has reported a long history of complaints of ringing in his ears; however, he has been able to maintain gainful employment (currently as a Baptist minister) and there is no evidence of special medical care or treatment for this condition. Hence, referral by VARO to VA officials under the above-cited regulation was not required. ORDER Restoration of a 10 percent disability rating for the appellant's service-connected right knee disability, effective from the date of reduction, August 1, 1990, is granted, subject to the laws and regulations applicable to the disbursement of VA monetary benefits. A compensable disability evaluation for bilateral hearing loss is denied. An increased disability evaluation for tinnitus is denied. C. P. RUSSELL 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.