Citation Nr: 0003267 Decision Date: 02/09/00 Archive Date: 02/15/00 DOCKET NO. 97-22 643 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to an increased rating for a right knee disability, currently rated 30 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States INTRODUCTION The veteran had active military service from April 1942 to November 1945. The veteran brought a timely appeal to the Board of veterans' Appeals (the Board) from an April 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. FINDINGS OF FACT 1. The veteran did not appeal an April 1985 RO rating decision that denied service connection for bilateral hearing loss. 2. The veteran did not appeal a June 1990 RO rating decision that did not reopen the claim. 3. The evidence received since the June 1990 RO rating decision is not cumulative or redundant and is so significant that it must be considered to decide the claim fairly. 4. The claim of entitlement to service connection for bilateral hearing loss is supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 5. The veteran's right knee disability is principally manifested by persistent knee pain with arthritis, limitation of motion with extension limited on occasion to 8 and 15 degrees and appreciable instability and weakness that have resulted in pronounced functional impairment. 6. The veteran's right knee disability has not rendered his disability picture unusual or exceptional in nature, markedly interfered with employment, or required frequent inpatient care as to render impractical the application of regular schedular standards. CONCLUSIONS OF LAW 1. Evidence received regarding service connection for hearing loss since the RO decision in June 1990 is new and material and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.1103 (1999). 2. The claim of entitlement to service connection for bilateral hearing loss is well grounded. 38 U.S.C.A. § 5107 (West 1991). 3. The criteria for an increased evaluation of 40 percent for a disability of the right knee have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5257, 5260, 5261 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service connection for bilateral hearing loss Factual Background The veteran's service medical records show that his hearing was reported as 20/20 bilateral on the entrance examination. There was no ear abnormality according to the examination report and no ear or hearing abnormality was reported in the summary of defects and diagnoses. He was hospitalized with German measles in June 1942. During an evaluation in June 1944 for a possible left ear abscess, his hearing was reported as 15/15 bilateral. There was a history of chronic otitis media with acute exacerbation in the past year. A consultant physician reported the drums were pale and there was a thin scar covering an old perforation with no signs of acute inflammation. No ear abnormality was reported on the separation medical examination in November 1945 and his hearing was reported as 15/15 bilateral to whispered voice. It was reported on a VA medical examination of the ears, nose and throat in 1948 that the veteran had a complaint of poor hearing in the left ear of unknown cause. His hearing was reported as 20/20 bilateral to spoken voice with no tinnitus. The examiner reported a deviated nasal septum. No complaint of hearing loss was reported on VA examinations in 1951 and 1954. In January 1979, the veteran submitted a 1975 report from R.S., M.D., who reported that the veteran had been seen in early 1974 with a two-year history of decreased hearing. The veteran reportedly stated that in the service he had heavy gun exposure and was hard of hearing for two to three hours after such exposure. According to Dr. S., he also said that he had noise exposure hunting with a rifle and noticed some deafness and ringing afterwards for several hours each time. The veteran also reported not having had earache or running ear in 15 years. Dr. S. read an audiogram of March 1974 as showing difficulty with conversational speech particularly at 4,000 Hertz. Contemporaneous VA medical records reported the veteran's history of gradual decrease in hearing especially with high- pitched sounds, and conductive hearing loss was reported. An ear, nose and throat examiner reported moderate sensorineural hearing loss that was worse at the higher frequencies. In a February 1981 letter to the RO the veteran stated the belief that his poor hearing was definitely related to service. Contemporaneous VA medical records report a stable sensorineural hearing loss. On a July 1981 evaluation was a history of noise trauma in the military from artillery fire and the impression was bilateral sensorineural hearing loss. A clinician in April 1983 opined that bilateral sensory neural hearing loss could be related to Guillain-Barre syndrome but that it was believed to be a gradual progression. He produced a letter in 1983 from a service comrade who recalled noise exposure at the time. The RO in denying service connection in 1985 noted, in essence, that the claim could not be substantiated with the normal hearing in service and on VA examination in 1948. The veteran did not appeal the decision after being furnished notice by letter dated in April 1985. In April 1988 he sough to reopen the claim and the RO advised him in August 1988 of the need for evidence. Thereafter the veteran obtained service department administrative records with VA assistance that were principally morning reports and sick reports. The RO considered these records in June 1990 and declined to reopen the claim. The veteran did not appeal the determination after being furnished written notice by letter dated in June 1990. The next pertinent communication from the veteran was a letter in March 1997 seeking to reopen the claim. Private medical treatment records from the early 1990's reported that the veteran had hearing aids and a mild sensorineural hearing loss. There was also written recollection of the veteran's hearing problem from family members. VA medical records showed pertinently in January 1998 an assessment of inactive otitis media and sensorineural hearing loss probably secondary to noise. The report included a history of decreased hearing in the military and abscess in the left ear. There was also a history of tinnitus with noise exposure. Noise was reported as severe from artillery in service, construction and power tools and hunting. A VA audiology examiner in February 1998 reported the veteran's claimed progressive bilateral hearing loss since the 1940's and military noise exposure to artillery and large guns and large shells during an invasion in World War II. He also reported noise exposure as a civilian from skill saws, some railroading, truck driving and hunting. He reported that he wore hearing protection while hunting. He also reported abscess in both ears initially in the military service and recurrent problems. The veteran reported tinnitus in both ears since the 1940's but the examiner noted it was not present during testing. The audiology data was interpreted as showing a moderately severe to profound mixed hearing loss bilaterally. The examiner reported that a review of the claims folder showed five audiograms including the earliest in 1974 that showed symmetrical mild to profound sensorineural hearing loss. At that time there was a clinical note that scarring of both tympanic membranes worse on the left that covered old perforations. A 1979 audiogram showed essentially the same findings and examination found a hole in the left tympanic membrane and a normal right side. There was an impression of conductive hearing loss. The subsequent tests in 1981, 1983 and 1986 showed progressive hearing loss with evidence of conductive loss based upon low frequency air-bone gaps. The hearing loss appeared to have progressed as described in 1998. The examiner noted the various references to hearing loss in the claims folder. The examiner said that several hospital notes in service were significant. The June 1942 reference to German measles was noted as well as a complaint regarding the ear that the examiner indicated could not be made out completely. There was a June 1944 report of a possible left ear abscess, history of chronic otitis media and scar covering a left tympanic membrane perforation with no sign of acute inflammation on examination. The examiner noted the history after service showed a 1948 report of left ear hearing poor from no known cause and 20/20 hearing to the spoken voice. The examiner also reported the recent clinical entry assessment of chronic otitis media inactive and sensorineural hearing loss probably due to noise. The examiner opined that the sensorineural classification was based upon tuning fork tests and a January 1998 audiogram that showed mixed hearing loss with air-bone gaps in the low frequencies in both ears. In summary, the examiner reported that the veteran's hearing loss was mixed with a low frequency conductive component and sensorineural hearing loss at 2,000 Hertz and above in both ears. Regarding the sensorineural high frequency component, the examiner opined that the veteran's claimed military noise exposure could not be ruled out as a causative factor. The examiner pointed out the civilian occupational and recreational noise exposure and age could cause or exacerbate high frequency hearing loss. The examiner stated that spoken voice and whispered voice tests were not adequate to detect high frequency hearing loss of the nature associated with noise exposure and therefore that it was not surprising the tests conducted at discharge and in 1948 showed normal hearing. In essence, the examiner did not offer an opinion regarding the etiology or relationship of the mixed hearing loss and possible ear abscess reported in the file and felt an ear, nose and throat consultant could more properly render an opinion regarding that relationship. The RO then sought an independent medical opinion. In October 1998, the specialist reported having examined the veteran and reviewed other information. The examination request form indicated that the service medical records were available to the examiner. The specialist reported, in essence, that according to the information he had the veteran's first problem with the ears occurred in service with acute otitis media developing into chronic otitis media with frequent bouts of suppuration through ear drum perforation. He also had artillery and rifle fire noise exposure as well, which left him with some ringing and mild threshold shift for several hours after the firing. The specialist reported that medical history showed the veteran had other noise exposure throughout his life. The specialist noted the veteran denied any ear problem before service but felt that it was unusual for adults to develop acute otitis media as an adult without history of having the same problem as a child. The examiner noted that over the years since service up to 1974 he continued to have progressive loss of hearing. The examiner opined that the relatively severe sensorineural hearing loss reported in 1974 was not the usual pattern that one would find in an ear subjected to acoustic trauma or noise induced hearing loss. The specialist noted the progressive hearing loss since being fitted with hearing aides by VA. The current examination found a normal right ear, collapsed but intact left eardrum and Eustachian tube closure residuals that was offered as one possible explanation for the reported recurring ear infection. In summary, the specialist opined that the veteran did have a profound sensorineural hearing loss and that any injury to his ear from acoustic trauma during World War II would have stopped with the cessation of his noise exposure at that time and cannot be blamed for the progressive loss of hearing he continued to have. The specialist opined that based upon current audiology testing the veteran did not show a conductive hearing loss due to chronic otitis media of the left ear and that if chronic otitis media that he developed in service was a causative factor it would show air bone gaps that he did not have at this time based on current audiogram. The examiner opined that the major cause of the veteran's hearing loss was due to some other factor aside from his noise exposure or his chronic otitis media. The examiner stated that it was interesting to note that other examinations have noted sensorineural hearing loss and noise exposure but none of them had indicated specifically that his hearing loss was due to either noise exposure or acoustic trauma. Criteria If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C.A. § 5104 (West 1991). A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in § 3.105 of this part. 38 C.F.R. § 3.104(a). A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected as prescribed in Rule 302 (§ 20.302 of this part). 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Except in the case of simultaneously contested claims, a claimant, or his or her representative, must file a Notice of Disagreement with a determination by the agency of original jurisdiction within one year from the date that that agency mails notice of the determination to him or her. Otherwise, that determination will become final. The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.302(a). The regulations define new and material evidence as follows: New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1998). The Board notes that the United States Court of Appeals for the Federal Circuit (hereinafter, "the Court of Appeals") recently ruled that the Court erred in adopting the test articulated in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In Colvin, the Court adopted the following rule with respect to the evidence that would justify reopening a claim on the basis of new and material evidence, "there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." Colvin, 1 Vet. App. at 174. In light of the holding in Hodge, the Board will analyze the evidence submitted in the case at hand according to the standard articulated in 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection may be granted for a disability resulting from personal injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1110 (West 1991). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran's service records, or for which he seeks a service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A threshold question to be answered is whether the veteran has presented evidence of a well grounded claim; that is, a claim that is plausible or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Although the claim need not be conclusive, it must be accompanied by supporting evidence. An allegation alone is not sufficient. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Three discrete types of evidence must be present in order for a veteran's claim for benefits to be well grounded: (1) There must be evidence of a current disability, usually shown by a medical diagnosis. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); (2) There must also be competent evidence of incurrence or aggravation of a disease or injury in service. This element may be shown by lay or medical evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); and (3) There must be competent evidence of a nexus between the in-service injury or disease and the current disability. Such a nexus must be shown by medical evidence. Lathan v. Brown, 7 Vet. App. 359, 365 (1995); Grottveit v. Brown, 5 Vet. App. 91. 93 (1993). In determining whether a claim is well grounded, the Board is required to presume the truthfulness of the evidence. Robinette v. Brown, 8 Vet. App. 69, 77-8 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). In order for a claim to be well grounded, generally, there must be (1) competent evidence of a current disability (a medical diagnosis); (2) incurrence or aggravation of a disease or injury in service (lay or medical evidence); and (3) a nexus between the in-service disease or injury and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). When, after consideration of all the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Analysis The veteran seeks to reopen his claim for service connection for hearing loss disease that the RO denied initially when it issued an unappealed rating decision in April 1985 and again more recently in June 1990. When a claim is finally denied by the RO, the claim may not thereafter be reopened and allowed, unless new and material evidence has been presented. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104 (1999). The RO in 1999 determined that the claim should be reopened but that it was not well grounded. However, the Board must review the RO determination to reopen the claim. Barnett v. Brown, 8 Vet. App. 1 (1995). When a claimant seeks to reopen a finally denied claim, the Board must review all of the evidence submitted since that action to determine whether the claim should be reopened and readjudicated on a de novo basis. Glynn v. Brown, 6 Vet. App. 523, 529 (1994). In order to reopen a finally denied claim there must be new and material evidence presented since the claim was last finally disallowed on any basis, not only since the claim was last denied on the merits. Evans v. Brown, 9 Vet. App. 273 (1996). Under Evans, evidence is new if not previously of record and is not merely cumulative of evidence previously of record. The 1990 RO decision is the last final disallowance on any basis. Review of the RO's findings in the June 1990 decision shows, in essence, that it found no competent medical evidence of hearing loss having its inception in service. The RO noted in its decision that hearing loss in service was not mentioned in the additional evidence reviewed. Thus, it affirmed the 1985 decision holding that the claim could not be substantiated in view of the evidence showing normal hearing in service and on a 1948 VA examination. In the case at hand, the Board finds that new and material evidence has been submitted to warrant reopening the veteran's claim for service connection. The specified basis of the RO's denial is changed by the additional evidence that includes thorough audiology evaluations of the veteran and relevant records that confirm a hearing loss and include medical opinion of possible linkage to service. There is also the veteran's recollection of relevant symptoms, which is presumed truthful. Therefore, the evidence received since the 1990 decision is not cumulative of earlier evidence. Under the new Elkins test, VA must first determine whether the veteran has submitted new and material evidence under section 3.156 to reopen the claim. The additional evidence is not cumulative thereby passing the first test. The Board finds that the evidence added to the record since the 1990 decision directly addresses this issue insofar as it adds to previously reviewed evidence regarding chest pain complaints since service and provides evidence of a current disability that has been linked to his military service in the 1940's. The additional evidence is new and material evidence as defined by the regulation as it bears directly and substantially upon the issue at hand, and being neither solely duplicative nor cumulative, it is significant and must be considered in order to decide the merits of the claim fairly. 38 C.F.R. § 3.156(a). Here, the issue at hand is whether the veteran has a hearing loss disease linked to his active military service and the additional evidence is probative of this question. In view of the record as it has been supplemented with recent medical opinion the Board must conclude that the veteran has submitted "new" and "material" evidence to reopen his claim of service connection for hearing loss. 38 C.F.R. § 3.156. Thus, the claim should be reopened. The first element of the new Elkins test having been satisfied, the Board's analysis must continue. Butler v. Brown, 9 Vet. App. 167, 171 (1996). It must now be determined whether the claim is well grounded based on a review of all the evidence of record; and lastly, if the claim is well grounded, VA must proceed to evaluate the merits of the claim but only after ensuring that the duty to assist has been fulfilled. Winters v. West, 12 Vet. App. 203 (1999); Elkins v. West, 12 Vet. App. 209 (1999). The generally applicable criteria for a well-grounded claim require that a claim be a plausible one. That is, one being meritorious on its own or capable of substantiation. The evidence need only show the claim is possible. See 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In general a well grounded claim requires medical evidence of a current disability; medical or, in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed inservice injury or disease and a current disability. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The veteran's claim does meet this standard since the necessary medical nexus evidence is of record regarding the hearing loss. The record was supplemented by evidence, the most compelling being the VA consultation that did provide an opinion favorable to the claim and was likely based upon examination and review of the medical record in light of the veteran's self-reported history. Further, although there is a significant period of years without medical evidence of symptoms, as noted by the examiner, competent evidence that is necessary to establish the critical nexus element for hearing loss to his period of service is of record. In summary, the evidence shows a substantial record of hearing complaints in service and medical nexus evidence linking a current sensorineural hearing loss to service. In light of the finding herein that the veteran's claim for service connection is well grounded, the Board notes that the second element of the Elkins test has been met. Accordingly, the Board's analysis may not end here without addressing the merits of the claim. As noted previously, VA must proceed to evaluate the merits of the claim but only after ensuring that the duty to assist has been fulfilled. In this case the Board is inclined to defer further consideration of the matter pending the completion of additional development that will be discussed below in the remand portion of this decision. The Board believes that the claim requires additional development in view of the current state of the record in order to meet the duty to assist, and such development is addressed in the remand portion of the decision. II. Increased rating for a right knee disability Criteria The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 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. Both the use of manifestations not resulting from service- connected disease or injury in establishing the service- connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. Although a review of the recorded history of a disability is necessary in order to make an accurate evaluation, see 38 C.F.R. §§ 4.2, 4.41 (1999), the regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. See Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. As regards the joints the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.). (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.). (c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.). (d) Excess fatigability. (e) Incoordination, impaired ability to execute skilled movements smoothly. (f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions. 38 C.F.R. § 4.45. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Arthritis, degenerative (hypertrophic or osteoarthritis): Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, rate as below: With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, 20 percent. With X- ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, 10 percent. Note (1): The 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2): The 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024, inclusive. Diagnostic Code 5003. Other impairment of the knee, recurrent subluxation or lateral instability that is severe shall be rated 30 percent, if moderate, 20 percent and if slight, 10 percent. Diagnostic Code 5257. Cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint shall be rated 20 percent. Diagnostic Code 5258. Limitation of flexion of the leg to 15°shall be rated 30 percent. Flexion limited to 30° shall be rated 20 percent. Flexion limited to 45° shall be rated 10 percent. Flexion limited to 60° shall be rated 0 percent. Diagnostic Code 5260. Limitation of extension of the leg to 45° shall be rated 50 percent. Extension limited to 30° shall be rated 40 percent. Extension limited to 20° shall be rated 30 percent. Extension limited to 15° shall be rated 20 percent. Extension limited to 10° shall be rated 10 percent and extension limited to 5° shall be rated 0 percent. Diagnostic Code 5261. Plates I and II provide a standardized description of ankylosis and joint motion measurement that for the knee is flexion 140 degrees and extension 0 degrees. 38 C.F.R. § 4.71, Plate II. Ankylosis of the knee extremely unfavorable, in flexion at an angle of 45° or more shall be rated 60 percent. In flexion between 20° and 45° shall be rated 50 percent. In flexion between 10° and 20° shall be rated 40 percent. Favorable angle in full extension, or in slight flexion between 0 and 10° shall be rated 30 percent. Diagnostic Code 5256. In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved provided the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalizations as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Analysis The RO in January 1946 granted service connection for dislocated right knee and rated the disability. The disability was reduced from 20 percent to noncompensable in late 1951. The RO in 1979 increased the rating to 10 percent under Diagnostic Code 5257 criteria and it was eventually raised to 30 percent from 1983 and rated as patellectomy, right knee with partial meniscectomy. The claim for increase in 1993 was denied and not appealed. The current claim for increase was filed in early 1997. VA medical records from the mid 1990's showed degenerative changes in the right knee on X-ray in early 1996 and several months later an evaluation for pain complaints that found full extension and 120 degrees of flexion, slight increase in laxity to varus and valgus stress, positive anterior drawer with no evidence of anterior cruciate ligament functioning. In late 1996 he was reported to have moderate arthritis and evidence of chronic ligamentous injury. In early 1997 he was reportedly essentially wheelchair bound because of significant arthritis of multiple joints but this was also attributed an unstable right knee and back pain by another examiner. VA examination in April 1997 found the veteran complaining of severe pain and difficulty with ambulating. The examiner reported mild to moderate edema and mild valgus position of the knee. Manual muscle stets revealed 3- for quadriceps and 2 for hamstrings. Range of motion was from 8 degrees to 73 degrees. There was moderate pain with palpation at the femorotibial joint, and at the hamstring tendons and popliteal fossa and quadriceps tendons. Laxity was evidence with anterior cruciate ligament testing and varus and valgus pressures. Tibial rotation elicited significant pain. The veteran could stand with support as long as he maintained the knee extended. It tended to collapse with any flexion. X- ray was obtained. The assessment was that the veteran demonstrated signs and symptoms consistent with significant degenerative joint disease and patellectomy with inhibition of musculature secondary to pain and inability to maintain eccentric contraction because of loss of mechanical advantage of the patella. The examiner stated that this may lead to loss of balance and inability to ambulate without assistance. Reexamination by VA in July 1997 found range of right knee motion from 0 to 60 degrees, with discomfort though to 90 degrees and the knee stable to ligamentous testing. Distal motor and sensory function was intact and there was medial and lateral joint line tenderness and no pain with patellar compression. X-rays were reads as showing moderate osteoarthritis changes. The examiner advised the veteran that any weakness complained of was probably due to previous patellectomy, knee pain and deconditioning. It was noted that he was curently in physical therapy. A private medical report in August 1997 reported the veteran complained of the right knee going out at times. The assessment included degenerative arthritis of the knee. The VA examination in early 1998 found the veteran complaining of severe right knee pain and aching most of the time. He reportedly was wheelchair dependent in part the result of the knee pain. He felt the knee problem aggravated a back condition, which is service-connected on a secondary basis to the right knee disability. The examiner found scars upon the knee to be well healed. There was no effusion and range of motion was 15 to 70 degrees with pain beyond either end of the range. There was prominent medial joint line tenderness and mild lateral joint line tenderness and the patellar tendon had a tendency to subluxate laterally in full extension and centers when entering approximately 45 degrees of flexion. The veteran had 6 to 7 mm. of medial instability with valgus stress and lateral instability. The Lachman testing was described as equivocal due to incomplete relaxation and report of pain. The radiology findings were consistent with earlier studies. The assessment was right knee degenerative arthritis with medial collateral ligament instability and status post patellectomy with subluxating patellar tendon with function and activity limitation as described. As a preliminary matter, the Board finds that the veteran's claim for increased disability compensation is well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board is satisfied that all relevant facts have been properly developed to the extent possible and that no further duty to assist exists with respect to the claim. The veteran has been provided comprehensive evaluations in connection with the claim and other records have been obtained. The RO had examinations that are comprehensive and allow for an evaluation of the extent of functional loss as discussed in DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). It was the holding in Johnson v. Brown, 9 Vet. App. 7, 10 (1996), that functional loss due to pain will be rated at the same level as the functional loss where motion is impeded. The veteran's right knee disability is rated currently in accordance with the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5257, which assess basically the level of orthopedic disturbance from subluxation or lateral instability as primary rating criteria for the incremental ratings from 10 to 30 percent. The veteran has been provided the essential rating criteria. The Board finds a different rating scheme more appropriate for the veteran's disability in view of the diagnosis for the knee and symptomatology. 38 C.F.R. §§ 4.20, 4.21. There is instability and arthritis that requires an application of limitation of motion criteria. The Board observes that the RO assigned a 30 percent evaluation based upon recent VA examinations that did report appreciable limitation of motion significantly less than the norm when it is compared to the standardized description of knee motion in the rating schedule. There was most recently noted again the added manifestation of instability. Applying this information to the rating schedule criteria leads the Board to conclude that an increased evaluation is warranted for the right knee. The symptoms, overall, do appear to more closely approximate a level of impairment greater than contemplated in a schedular evaluation of 30 percent under Diagnostic Code 5257. The rating scheme does not require a mechanical application of the schedular criteria, and here applying the rating schedule liberally results in a greater evaluation recognizing an appreciably symptomatic right knee characterized by painful motion that is significantly limited and instability. The objective examination findings clearly support a conclusion that the veteran's disorder is productive of a significant disability. The Board observes that overall the right knee has manifested pain, weakness and limitation of motion. Arthritis is clearly shown. Therefore, the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint would clearly be appropriate in the veteran's case and allow for a 10 percent rating under 38 C.F.R. § 4.59 at a minimum. The recent VA examination appears to have clearly addressed the veteran's complaints and reported objective manifestations likely related to the disability. The Board observes that earlier rating decisions assigned and continued a 30 percent evaluation solely under Diagnostic Code 5257 that assesses principally the recurrent subluxation or lateral instability. The Board notes that arthritis has been included as a component of the disability thereby requiring limitation of motion criteria under Diagnostic Codes 5260 and 5261 corresponding to a higher evaluation with consideration given to the rating factors in 38 C.F.R. §§ 4.40, 4.45 and 4.59. The rating scheme chosen by the RO takes on additional significance in view of a recently issued precedent opinion of the VA General Counsel that authorizes multiple ratings for a disability where there is additional disability currently existing characterized by different manifestations. VAOPGCPREC 23-97. See also VAOPGCPREC 9-98. The Board is bound by precedent opinions of the VA General Counsel. 38 U.S.C.A. § 7104(c). The facts of this case clearly fall within the guidelines for assignment of multiple ratings, as it is clear that the disability includes degenerative joint disease of the right knee. The current rating should account for the demonstrable functional impairment shown that would be compensable under the specific rating criteria for limitation of motion. The most recent VA examination found limitation of extension to 15 degrees, which corresponds to a 20 percent rating under Diagnostic Code 5261. The limitation of extension since 1996 has not been consistently demonstrated and the Board observes that the limitation approximated the 10 percent criteria on a previous examination but was reported as full on an intervening examination. Accounting for functional impairment with exacerbation would allow for a 10 percent rating. In this case, the multiple ratings combine to 40 percent. 38 C.F.R. § 4.25. The record does reflect appreciable instability and significant limitation of motion on the several examinations most recently in 1998 to allow for a higher evaluation under the alternative rating scheme to Diagnostic Code 5257. The examinations and other recent medical reports are significant from the standpoint of functional loss linked in part to the right knee disability. The Board interprets the examiner's characterization of the disability as a quantification of the overall level of disability taking into account impairment that may coincide with flare-ups. Thus, the preexisting 30 percent rating under Diagnostic Code 5257 is supplemented with an additional 10 percent rating based upon the application of 38 C.F.R. § 4.40, 4.45 and 4.59 and Diagnostic Code 5003. This is equated the level of impairment to loss of use that would support by analogy a 40 percent rating. See for example 38 C.F.R. § 4.63 and Diagnostic Code 5167. The examiners appear to have indicated a significantly limiting disability from the standpoint of instability and limitation of motion. In view of the foregoing discussion, the Board concludes that the evidentiary record supports a grant of entitlement to an increased evaluation of not more than 40 percent for a right knee disability with application of all pertinent governing criteria. The veteran has been granted a total compensation rating based on individual unemployability from May 1998. In connection with that claim he reported his work history and the difficulties with work, in part, on account of the right knee. For the period of this appeal the Board notes that from the information on file regarding his employment, and the extent of treatment for his right knee as reported in the record, it appears that the right knee disability has not rendered his disability picture unusual or exceptional in nature, shown to in and of itself constitute marked interference with employment, or to have required frequent inpatient care as to render impractical the application of regular schedular standards, thereby precluding assignment of an evaluation in excess of the current 40 percent rating on an extraschedular basis under 38 C.F.R. § 3.321(b)(1). There are extensive treatment records during the appeal period that show a significant amount of medical attention being directed to other disabilities. ORDER The veteran having submitted new and material evidence to reopen his claim of entitlement to service connection for bilateral hearing loss, and having submitted a well grounded claim of entitlement to service connection, the appeal is allowed to this extent. An increased rating of 40 percent for a disability of the right knee is granted, subject to the regulations governing the payment of monetary awards. REMAND The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. The record shows that two recent VA examinations have produced conflicting opinions regarding the significance of the veteran's exposure to noise in service and his current hearing disability. For example, one examiner stated the inserviec exposure could not be ruled out as a factor in the sensorineural hearing loss while a specialist seemed to indicate it was of no significance. There was also some question about the existence and significance of air bone gap in the overall hearing disability and the significance of the findings in service. To ensure full compliance with due process requirements and the duty to assist in the reopened and well grounded claim for service connection, the case is REMANDED to the RO for the following development: 1. The RO should contact the veteran and request that he provide the names, addresses, and approximate dates of treatment for all health care providers, VA and non-VA, inpatient and outpatient, who have treated him for a hearing disability at any time since service. After obtaining any necessary authorization or medical releases, the RO should request and associate with the claims file legible copies of the veteran's complete treatment reports from all sources identified whose records have not previously been secured. Regardless of the veteran's response, the RO should secure all pertinent outstanding VA treatment records. 2. The RO should contact the examiners who provided the medical opinions in February 1998 and October 1998 and ask that they provided the rationale for their respective opinions regarding the significance of the veteran's inservice noise exposure in the development of his current hearing disability. 3. The RO should arrange for an examination of the veteran preferably by a hearing disorder specialist, if available, who has not previously examined him, to determine the nature, extent of severity, and likely etiology of any hearing disorder(s) found. Any further indicated special studies should be conducted. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior to conduction and completion of the examination and the examination report must be annotated in this regard. All pertinent complaints should be recorded and evaluated. The examiner, after review of the claims file as supplemented by the additional evidence requested above, should be asked to provide an opinion regarding the likelihood that any hearing disorder found is related to the ear complaints noted during service and the veteran's history of acoustic trauma in service. The examiner should provide the rationale for all opinions expressed. The examiner should receive any supplemental information provided by the clinicians who examined the veteran in 1998. 4. Thereafter, the RO should review the claims file to ensure that all of the requested development has been completed. In particular, the RO should review the requested examination report and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 5. After undertaking any development deemed essential in addition to that specified above, the RO should adjudicate the issue of entitlement to service connection for a bilateral hearing disability. If a benefit sought on appeal is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The veteran need take no action until he is notified. Mark J. Swiatek Acting Member, Board of Veterans' Appeals