Citation Nr: 1729903	
Decision Date: 07/27/17    Archive Date: 08/04/17

DOCKET NO.  08-23 189A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for hypertension.

3.  Entitlement to a disability rating in excess of 10 percent for a right knee disability prior to October 5, 2012 and in excess of 20 percent thereafter.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

David R. Seaton, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1966 to October 1992.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida made in March 2007 and in May 2007. 

These issues were previously before the Board in August 2015, and, the issues of entitlement to service connection for hypertension and an increased disability rating for a right knee disability rating were previously before the Board in June 2012.  In each instance these matters were remanded for further development.  Further development of the issues of entitlement to service connection for bilateral hearing loss and an increased disability rating for a right knee disability in substantial compliance with the Board's remand instructions has been completed.

The issues of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran was not shown by audiometric testing to have hearing loss in either ear for VA purposes during the pendency of the appeal.

2.  The Veteran's right knee manifested: a flexion of 30 degrees or less or an extension of 15 degrees or more throughout the period on appeal; a functional impairment equivalent to an extension limited to 15 degrees from May 12, 2010 to September 26, 2016; and a semilunar cartilage condition that most closely approximates dislocated semilunar cartilage from May 12, 2010.

3.  The Veteran's right knee disability did not manifest ankylosis, recurrent subluxation or lateral instability, tibial or fibular impairment, or genu recurvatum throughout the period on appeal.


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.309, 3.385 (2016).  

2.  The criteria for a disability rating of 20 percent for a right knee condition from May 12, 2010 have been met.  38 C.F.R. § 4.71a, Diagnostic Code 5256-5263 (2016).

3.  The criteria for a separate disability staged disability rating for a right knee condition of 20 percent from May 12, 2010 to September 26, 2016 and 10 percent thereafter, have been.  38 C.F.R. § 4.71a, Diagnostic Code 5256 -5263 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development.  See Shinseki v. Sanders, 129 U.S. 1696 (2009).  Thus, adjudication of his claim at this time is warranted. 

As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and, therefore, appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Service treatment records, VA treatment records, and private treatment records have been obtained.  Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined.

The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiners had a full and accurate knowledge of the Veteran's disability and contentions, and grounded their opinions in the medical literature and evidence of record.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Moreover, neither the Veteran nor his representative has objected to the adequacy of any of the examinations conducted during this appeal.  See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011).

These matters were previously remanded in order to associate additional records with the claims file and to provide the Veteran with additional VA examinations.  Further development in substantial compliance with these remand instructions has been completed.

As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  There is no prejudice to the Veteran in adjudicating this appeal, because VA's duties to notify and assist have been met.

Hearing Loss

At issue is whether the Veteran is entitled to service connection for bilateral hearing loss.  The weight of the evidence indicates that the Veteran is not entitled to service connection for bilateral hearing loss.

The Veteran is seeking service connection for a low back disorder and bilateral hearing loss which he believes are the result of his military service.  In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110.  "Service connection" basically 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.  38 C.F.R. § 3.303.  Furthermore, service connection can also be established through application of statutory presumptions, including for chronic diseases, like organic diseases of the nervous system, if they manifest to a compensable degree within a year of separation from service, or there is continuity of symptomatology since separation of surface.  38 C.F.R. §§ 3.307, 3.309.

In additional to the general requirements for service connection, there are also specific requirements regarding what constitutes a hearing loss disability under VA law.  The threshold for normal hearing is from 0 to 20 decibels.  Hensley  v. Brown, 5 Vet. App. 155 (1993).  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 Hz is 40 dB or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The Veteran has made multiple statements reporting military noise exposure in-service which he contends has resulted in bilateral hearing loss.  The Veteran's treatment records indicate that the Veteran sought treatment for hearing loss as early as 2007.

The Veteran's service treatment records are silent for reports of or treatment for hearing loss.  The Veteran's ears were evaluated as normal during his service separation examination, and, during a VA medical history provided contemporaneously with his separation examination, the Veteran denied having or ever having had hearing loss.  The measured pure tone threshold values were as follows in decibels: 




Hertz

500
1000
2000
3000
4000
RIGHT
0
0
5
5
15
LEFT
-5
-5
5
10
35

The Veteran was provided a general VA examination in April 1994.  The Veteran's speech recognition score was 98 percent in the right ear and 80 percent in the left, and the examiner concluded that the Veteran's hearing was normal.  The measured pure tone threshold values were as follows in decibels: 


Hertz

500
1000
2000
3000
4000
RIGHT
0
0
15
5
15
LEFT
0
0
10
15
25

The Veteran underwent another VA examination in April 2007.  The Veteran reported bilateral hearing loss that was stable until approximately a year prior to the examination (approximately April 2006).  When asked what situation caused the Veteran the Veteran the greatest difficulty, the Veteran indicated that he has difficulty understanding his wife sometimes.  The Veteran claimed the noise exposure including: jet aircraft, generators, and jet engine starters in the military; and pneudraulic machines and air pressure noises as a civilian.  The Veteran's speech recognition score was 94 percent in the right ear and 96 percent in the left.  The measured pure tone threshold values were as follows in decibels: 


Hertz

500
1000
2000
3000
4000
RIGHT
10
5
15
10
15
LEFT
10
0
15
20
20

The Veteran underwent another VA examination in September 2016.  The Veteran reported bilateral hearing loss that was stable until approximately a year prior to the examination (approximately April 2006).  The Veteran claimed the noise exposure including: food service and aviation support in the military; and pneudraulic systems and lawn equipment as a civilian.  The examiner opined that the Veteran manifested mild hearing loss in the left ear upon separation from service, but that subsequent audiometric testing demonstrated that this was temporary and has since resolved.  The Veteran's speech recognition score was 96 percent in the right ear and 100 percent in the left.  The measured pure tone threshold values were as follows in decibels: 


Hertz

500
1000
2000
3000
4000
RIGHT
10
10
20
15
25
LEFT
10
10
20
20
25

The Board concedes that the Veteran sought treatment for hearing loss during the pendency of the appeal, and the Veteran has manifested elevated audiometric testing levels (above 20 decibels) during the pendency of the appeal.  The Board further concedes that the Veteran manifested hearing loss for VA purposes in the left ear as early as April 1994 when the Veteran's speech recognition score was 80 percent in the left ear.  

Nevertheless, the weight of the evidence indicates that the Veteran did not manifest bilateral hearing loss during the pendency of the appeal.  First, the Board notes that the period of the pendency of the appeal begins in July 2006 (the date the Veteran filed his current claim on appeal) to present.  Next, the Board notes that the Veteran underwent multiple instances of audiometric testing during the pendency of the appeal, and, during this period, the Veteran's none pure tone thresholds on any of the required frequencies were measured as 26 dB or greater; and the Veteran's speech recognition scores were not measured as less than 94 percent.  Therefore, the Veteran's audiometric measurements do not meet the criteria for hearing loss for VA's purposes.  Furthermore in April 2007, a VA examiner opined that the elevated audiometric results that the Veteran manifested in the left ear was temporary and subsequently resolved.  

Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran manifested bilateral hearing loss during the pendency on appeal.  The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997).  As such, without a current diagnosis hearing loss for the purposes of VA rating criteria, the Veteran lacks the evidence necessary to substantiate his claim for service connection.  Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Although the Board is sympathetic to the Veteran's claims, the Board finds that the weight of the probative evidence of record simply fails to establish hearing loss in the left ear for VA purposes.  Brammer v. Derwinski, 3 Vet. App. 223 (1992).  As such, service connection for bilateral hearing loss is denied.

Right Knee

At issue is whether the Veteran is entitled to service connection for a disability rating in excess of 10 percent prior to October 5, 2012 and in excess of 20 percent thereafter.  The weight of the evidence indicates that the Veteran is entitled to a disability rating of 20 percent effective May 12, 2010, and a separate staged disability rating of 20 percent from May 12, 2010 to September 26, 2016 and a disability rating of 10 percent thereafter .

The Veteran was first granted service connection for a bilateral knee disorder in November 1992, and, in April 1994, the RO granted the Veteran service connection and assigned a disability rating of 10 percent effective the day after separation from service.  The Veteran submitted an increased rating claim in July 2006; and, in March 2007, the RO denied the Veteran's claim.  The Veteran appealed.  During the pendency of the appeal, the Veteran was granted a disability rating of 20 percent effective October 5, 2012.

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work.  38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.

Disability ratings for knee disabilities are evaluated pursuant to Diagnostic Codes 5256-5263 & 5003.  38 C.F.R. § 4.71a.  Nevertheless, the Board shall only address the rating criteria for Diagnostic Codes 5260 and 5261, because, Diagnostic Codes 5003, 5256, 5257, 5258, 5259, 5262, and 5263 do not provide an adequate basis for an increased disability rating.

Diagnostic Codes 5256 (ankylosis of the knee), 5257 (subluxation or lateral instability), 5262 (impairment of tibia and fibula), and 5263 (genu recurvatum) are not raised by the record, because none of the VA examinations, or any of the medical opinions or treatment records, of record indicate that the Veteran was diagnosed with ankylosis of the knee, impairment of the tibia or fibula, or genu recurvatum.  38 C.F.R. § 4.71a.  

Diagnostic Code 5003 is not raised by the record either, because, in order to meet the rating criteria for a disability rating in excess of 10 percent, a disability must impact more than one major joint or major joint group.  The Veteran's right knee disability only impact one major joint; the right knee.  Therefore, Diagnostic Code 5003 does not provide an adequate basis for a disability rating in excess of 10 percent.

At this point in time, the Board must describe a procedural mistake made by the RO which complicates the Board's analysis.  The Veteran's initial disability rating was based on the Veteran's range of motion measurement as applied to the rating criteria under Diagnostic Codes 5260 and 5261.  The RO subsequently increased the Veteran's disability rating to 20 percent effective October 5, 2010, because the Veteran met the rating criteria based on a semilunar cartilage condition under Diagnostic Code 5258.  The RO should have continued the Veteran's 10 percent disability rating based on limitation of motion and assigned a second separate disability rating of 20 percent.  Further complicating these matters is the fact that the Veteran first informed VA that his right knee condition had increased in severity at a personal hearing on May 12, 2010, and the Veteran's disability rating was not increased until a VA examination that occurred two years later; which the Veteran should not be penalized for.  In order to correct this problem, the Board shall evaluate the Veteran's current right knee condition disability rating by the range of motion criteria prior to May 12, 2010.  Thereafter the Board shall consider the Veteran's current ran current right knee condition disability rating by the semilunar cartilage criteria from to May 12, 2010 and assign a separate compensable disability rating effective May 12, 2010 which the Board shall consider under the range of motion criteria.

Nevertheless, the rating criteria for semilunar cartilage (Diagnostic Code 5258 & 5259) are raised by the record, because, as of this decision, the Board has granted the Veteran the maximum disability rating based on semilunar cartilage conditions (20 percent) effective the date the Veteran's increased rating claim was received.  Therefore, neither Diagnostic Code 5258 and 5259 shall be considered by the Board.

Under Diagnostic Code 5260, a disability rating of 10 percent is assigned when a knee disability manifests in flexion limited to 45 degrees or less, and a disability rating of 20 percent is assigned when a knee disability manifests in flexion limited to 30 degrees.  A disability rating of 30 percent is assigned when a knee disability manifests in flexion limited to 15 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5260.

Under Diagnostic Code 5261, a disability rating of 10 percent is assigned when a knee disability manifests in extension to 10 percent, and a disability rating of 20 percent is assigned when a knee disability manifests in extension to 15 percent.  A disability rating of 30 percent is assigned when a knee disability manifests in extension to 20 percent, and a disability rating of 40 percent is assigned when a knee disability manifests in extension to 30 percent.  Finally, a disability rating of 50 percent is assigned when a knee disability manifests in extension to 45 percent.  38 C.F.R. § 4.71a, Diagnostic Code 5261.

The Veteran's treatment records and statements throughout the period on appeal indicate that the Veteran reported pain, swelling, and discomfort while squatting.  SSA records indicate that the Veteran can stand or walk about six to eight hours per day, but that he can only occasionally climb ramps, stairs, ladders, ropes, or scaffolds. 

The Veteran underwent a VA examination in February 2007.  The Veteran reported ongoing progressive difficulty with his right knee since 2003, and that daily activities such as lawn work increase his knee pain.  The Veteran also reported popping, clicking, and swelling, but the Veteran denied locking or giving way.  The examiner did not observe effusion, and Lachman's test, anterior drawer test, and McMurray's test were negative.  The Veteran's extension was measured to zero degrees, and his flexion was measured to 120 degrees without pain.  The examiner noted that the Veteran manifested a mild antalgic gain after one minute on a tread mill, and the examiner concluded that the Veteran's knees caused difficulty with standing for protracted periods of time, walking long distances, squatting, or kneeling.

A May 2009 SSA evaluation indicated that the Veteran had full range of motion in his lower extremities without joint swelling or tenderness. 

The Veteran underwent a VA examination in June 2009.  The Veteran reported that his condition was progressively worse since the onset of service.  The examiner indicated that the Veteran did not report deformity, instability, weakness, or incoordination, but the Veteran did report pain, stiffness, and giving way.  The examiner did not observe instability, ankylosis, or patellar or meniscus abnormality.  The Veteran's flexion was measured to 125 degrees with pain from 120 to 125 degrees, and his extension was measured to negative five degrees with pain from zero to negative five degrees.  The examiner noted that there was objective evidence of pain upon repetitive motion, but that there was no additional limitation after three repetitions of range of motion testing.  

The Veteran testified at a personal hearing before the RO on May 12, 2010.  The Veteran reported that the only exercise that he could perform was minimal walking.  The Veteran also claimed that he had difficulty walking down stairs, and that his knee had increased in severity since his most recent VA examination.  

In a statement received on May 4, 2011, the Veteran claimed that his condition had increased in severity.

The Veteran underwent a VA examination in October 2012.  The Veteran reported that his knee symptoms flare up with cold weather, climbing stairs, or walking one city block.  The Veteran also reported locking, but he denied effusion into the joint.  The Veteran's flexion was measured to 100 degrees with pain beginning at 80 degrees.  The Veteran's extension was limited to 10 degrees.  The examiner indicated that the Veteran was unable to perform repetitive range of motion testing due to pain.  The examiner opined that the following factors contributed to functional loss: less movement than normal, excess fatigability, pain on movement, disturbance of locomotion, interference with sitting, standing, and weight-bearing, locking, and crepitance; without evidence of effusion.  The examiner also observed some reduced muscle strength upon flexion and extension, but that the Veteran was able to move with some resistance.  The Lachman test, posterior drawer test, and medial-lateral test were all normal.  The examiner did not observe evidence of subluxation and dislocation.  The examiner indicated that the Veteran had a semilunar cartilage condition manifesting in joint locking and pain.  The examiner noted that the Veteran used assistive devices.

The Veteran underwent a VA examination on September 27, 2016.  The Veteran's flexion was measured to 130 degrees, and his flexion was measured to zero degrees.  The examiner observed pain, but the examiner opined that the pain did not contribute to functional loss; and that there was no evidence of pain on weight bearing.  The examiner indicated that the Veteran was able to perform three repetitions of motion, and that there was not additional functional loss or loss of range of motion after three repetitions.  The Veteran reported after repeated use of his knees he is unable to walk up and down stairs.  The examiner was unable to confirm the reports without resorting to mere speculation.  Muscle testing was normal, and the examiner indicated that there was no ankylosis.  The Lachman test, posterior drawer test, lateral test, and medial test were negative for instability.  The Veteran was not diagnosed with any tibial or fibular impairments or semilunar cartilage conditions.  The examiner noted that the Veteran used assistive devices.

The weight of the evidence indicates that the Veteran is not entitled to a disability rating in excess of 10 percent based on range of motion measurements alone.  In order to meet the criteria for a disability rating in excess of 10 percent, the Veteran must have manifested a flexion of 30 degrees or less or an extension of 15 degrees or more.  During this period, the Veteran's extension was not 15 degrees or more, and his flexion was not 30 degrees or less.  Therefore, the Veteran does not meet the rating criteria for a disability rating in excess of 10 percent during this period.

In evaluating disabilities of the musculoskeletal system however, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  38 C.F.R. § 4.40.  Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability.  38 C.F.R. § 4.45.  Even if range of motion was slightly limited by pain however, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  Id.

The weight of the evidence indicates that the Veteran has not manifested additional functional loss prior to May 12, 2010.  The Board notes that in February 2007 a VA examiner indicated that the Veteran manifested a mild antalgic gain after one minute on a tread mill, and the examiner concluded that the Veteran's knees caused difficulty with standing for protracted periods of time, walking long distances, squatting, or kneeling.  Nevertheless, the Board finds that this is evidence of a flare-up of pain after repetitive movement rather than a loss of range of motion, and, as previously noted, pain is not sufficient to constitute functional loss.  See Mitchell.  Furthermore, DeLuca analysis is still rooted in loss of range of motion resulting from additional functional loss, and, in June 2009, the Veteran was able to perform three repetitions of range of motion testing without additional limitation of motion.

The weight of the evidence indicates that the Veteran manifested additional functional loss during a VA examination in October 2012.  During this examination, a VA examiner indicated that the Veteran was unable to perform repetitive range of motion testing due to pain, and opined that the following factors contributed to functional loss: less movement than normal, excess fatigability, pain on movement, disturbance of locomotion, interference with sitting, standing, and weight-bearing, locking, and crepitance.  As such the Board must conclude that the Veteran manifested additional functional loss warranting a higher disability rating.  

The Board must now turn to how high of an increased disability rating the Veteran is entitled to.  The Board notes that the Veteran's flexion and extension measurements were 100 degrees and 10 degrees respectively.  Even assuming that the Veteran's functional loss reduced the Veteran's flexion by two thirds (a super majority of the measurement), the Veteran would still not meet the criteria for a disability rating in excess of 10 percent based on limitation of flexion.  Therefore, the Board must conclude that the evidence is not sufficient to demonstrate that the Veteran's functional loss is so severe as to warrant an increased disability rating based on limitation of flexion.  

On the other hand, the Veteran's extension was limited to 10 percent, and, if it was limited to 15 percent, the Veteran would meet the rating criteria for a disability rating of 20 percent.  Therefore, the Veteran's functional loss is likely to be at least severe enough to warrant a disability rating of 20 percent.  The Board must now determine whether the Veteran is entitled to a disability rating in excess of 20 percent based on additional functional loss.  Unfortunately, the evidence of record is not sufficient to provide a medical determination that the Veteran's disability picture more closely approximates the criteria for a disability rating in excess of 20 percent as opposed to the criteria for a disability rating of 20 percent.  Put another way, the evidence of record does not contain medical evidence for the Board to assign weight to that indicates that the Veteran's additional functional limitation more closely approximates an extension limited to 45, 30, or 20 percent (warranting disability ratings of 50, 40, and 30 percent respectively rather than additional functional limitation limited to 15 percent (warranting a disability rating of 20 percent).  As such, the evidence of record is not sufficient to demonstrate that the Veteran is at the very least entitled to a disability rating of 20 percent based on additional functional loss demonstrated at the October 2012 examination, but the evidence of record is not sufficient to demonstrate that the Veteran should receive a higher rating.

The next question is over what period of time should the Veteran's disability rating of 20 percent based on functional loss be assigned.  In May 12, 2010, the Veteran testified under oath at a personal hearing that the severity of his right knee disability had increased in severity since his most recent VA examination; which had been held in June 2009.  The Veteran received a new VA examination in October 2012.  The Board finds that the Veteran should not be penalized for VA's delay in providing the Veteran a new examination, and, therefore, the effective date of the Veteran's disability rating of 20 percent should be effective May 12, 2010.  The Veteran underwent another VA examination on September 27, 2016.  As previously noted, the examiner observed pain, but the examiner opined that the pain did not contribute to functional loss; and that there was no evidence of pain on weight bearing.  The Veteran did not manifest additional functional loss after three repetitions of motion, and muscle testing was normal.  Finally, the examiner was unable to confirm the reports without resorting to mere speculation.  The Board must, therefore, conclude that any functional loss that manifested during the October 2012 examination must have resolved by September 26 2016; the day before the September 2016 VA examination.  Therefore, the Veteran is entitled to a disability rating of 20 percent, and no more, based on additional functional loss from May 12, 2010 to September 26, 2016.  Finally, the Board further finds, based on the results of the September 26, 2016 VA examination that the Veteran has not manifested additional functional loss thereafter.

Therefore, the Board finds that the weight of the evidence indicates that the Veteran's current disability rating of 20 percent from May 12, 2010, and that the Veteran should also be granted a separate staged rating of 20 percent from May 12, 2010 to September 26, 2016 and in excess of 10 percent thereafter.

Extraschedular

The Board has also considered whether referral for an extraschedular evaluation is warranted.  In exceptional cases, an extraschedular rating may be provided.  See 38 C.F.R. § 3.321; see also Rice v. Shinseki, 22 Vet. App. 447 (2009).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  See Thun v. Peake, 22 Vet. App. 111 (2008).

Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b) (1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").  When the rating schedule is inadequate to evaluate a claimant's disability picture, and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director, Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating.  

Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment for Veteran's disabilities are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required.  The schedular rating criteria requires the Board to take into consideration all of the Veteran's symptoms in order to complete Deluca analysis of the Veteran's right knee condition.  Moreover, extraschedular analysis is not required unless the Veteran explicitly raised extraschedular arguments, or such a claim is otherwise raised by the record; Yancy v. McDonald, 27 Vet. App. 484 (2016); and the Board finds that neither of these conditions are met.

Accordingly, the Board finds that the Veteran's disability picture is adequately anticipated by the schedular rating criteria, and, therefore, the Veteran is not entitled to consideration of extraschedular rating criteria by the Under Secretary for Benefits or the Director, Compensation Service.

TDIU

The Board has considered whether the issue of entitlement to TDIU has been raised by the record.  The Board finds that it has not, because the Veteran has already been granted TDIU.


ORDER

Service connection for a bilateral hearing loss is denied.

A disability rating of 20 percent prior from May 12, 2010 for a right knee condition is granted; subject to the laws and regulations governing the payment of VA compensation.

A separate staged disability rating of 20 percent from May 12, 2010 to September 26, 2016 and 10 percent thereafter is granted; subject to the laws and regulations governing the payment of VA compensation.



REMAND

At issue is whether the Veteran was entitled to service connection for hypertension.  This matter was previously remanded in order to provide the Veteran with a VA examination in order to determine whether it is at least as likely as not that the Veteran's hypertension was caused by his presumed herbicide agent exposure.  The Veteran was provided a VA examination in September 2016.  The examiner opined that the Veteran's hypertension was not related to exposure to herbicide agents, because hypertension is not one of the conditions that may be presumed to be caused by herbicide agent exposure.  The National Academies of Sciences, Engineering, and Medicine, however, have indicated that there is evidence suggestive of an association between hypertension and herbicide agent exposure.  See Veterans and Agent Orange.  As such, a VA examiner should discuss the significance if any of this fact.

Accordingly, the case is REMANDED for the following action:

1.  Arrange to provide the Veteran with a VA examination in order to answer the following questions:

1a.  Is it at least as likely as not (50 percent or more) that the Veteran's hypertension was the result of herbicide agent exposure?  Why or why not?

1b.  What is the significance if any of the fact that the National Academies of Sciences, Engineering, and Medicine, however, have indicated that there is evidence suggestive of an association between hypertension and herbicide agent exposure?  Why?

2.  Then, readjudicate the claim on appeal.  If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto before returning the case to the Board, if in order.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  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 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
KELLI A. KORDICH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs



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