Citation Nr: A23032594 Decision Date: 11/17/23 Archive Date: 11/17/23 DOCKET NO. 191210-50273 DATE: November 17, 2023 ORDER A compensable rating for bilateral hearing loss prior to August 24, 2021, is denied. A compensable rating for pseudofolliculitis barbae (PFB) prior to August 24, 2021, is denied. A rating in excess of 10 percent for left knee patellofemoral pain syndrome (PFS) is denied. A rating in excess of 10 percent for right knee PFS is denied. A compensable rating for left hip strain with impairment of the thigh prior to August 24, 2021, is denied. A compensable rating for left hip strain with limitation of flexion is denied. A rating in excess of 10 percent for left hip strain with limitation of extension is denied. Service connection for gastroesophageal reflux disease (GERD) is denied. Service connection for left lower extremity (LLE) radiculopathy with sciatic nerve involvement is denied. Service connection for right lower extremity (RLE) radiculopathy with sciatic nerve involvement is denied. FINDINGS OF FACT 1. The Veteran served on active duty from August 1979 to September 1982. 2. Bilateral hearing loss has been manifested by objective measures of no worse than Level I in the right ear and Level IV in the left ear during the relevant period. 3. PFB has been manifested by inflamed papules along the jawline with no scarring or disfigurement. 4. A bilateral knee disability has been manifested by subjective complaints of pain, popping, and giving out; objective findings include flexion to no worse than 120 degrees and extension to 0 degrees. 5. A left hip disability has been manifested by subjective complaints of pain, clicking, and popping; objective findings include extension to no worse than 20 degrees and flexion to no worse than 90 degrees. 6. GERD was not shown in service, is not causally and etiologically related to service, and was not caused by or permanently worsened in severity by a service-connected disability. 7. Bilateral radiculopathy of the lower extremities was not shown in service, is not causally and etiologically related to service, and was not caused by or permanently worsened in severity by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss prior to August 24, 2021, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 4.1, 4.3, 4.85, 4.86, Diagnostic Code (DC) 6100 (2023). 2. The criteria for a compensable rating for PFB prior to August 24, 2021, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 4.1-4.14, 4.21, 4.124, DC 7813-7800 (2023). 3. The criteria for a rating in excess of 10 percent for left knee PFS have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5260 (2023). 4. The criteria for a rating in excess of 10 percent for right knee PFS have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5260 (2023). 5. The criteria for a compensable rating for left hip strain with impairment of the thigh prior to August 24, 2021, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5253 (2023). 6. The criteria for a compensable rating for left hip strain with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5252 (2023). 7. The criteria for a rating in excess of 10 percent for left hip strain with limitation of extension have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5251 (2023). 8. GERD was not incurred in service and is not proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2023). 9. LLE radiculopathy with sciatic nerve involvement was not incurred in service and is not proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2023). 10. RLE radiculopathy with sciatic nerve involvement was not incurred in service and is not proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2023). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This decision has been written under the guidelines of the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). In November 2019, the agency of original jurisdiction (AOJ) denied the claims. In December 2019, the Veteran appealed to the Board via a Form 10182 and elected the Evidence Submission docket. Therefore, the Board will review the evidence of record at the time of the AOJ's November 2019 decision, in addition to evidence submitted with the Form 10182 or within 90 days following receipt of the Form 10182. Further, the Board notes that an increased rating of 30 percent for PFB and a rating of 10 percent for bilateral hearing loss and left hip strain with impairment of the thigh were granted in a March 2022 rating decision with an effective date of August 24, 2021, the date that the Veteran filed an intent to file a claim. Nonetheless, the claims for an increased initial rating are still before the Board and will be addressed in this decision. Increased Rating Claims Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Bilateral Hearing Loss Ratings for hearing loss disability are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level, in decibels (dB) as measured by pure tone audiometric tests in frequencies 1000, 2000, 3000, and 4000 Hertz (Hz). 38 C.F.R. § 4.85, DC 6100. An examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC). To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Exceptional patterns of hearing impairment allow for assignment of the Roman numeral designation using Table VI or an alternate table, Table VIA, whichever is more beneficial to the Veteran. 38 C.F.R. § 4.86. This applies to two patterns. In both patterns each ear will be evaluated separately. The first pattern is where the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 dB or more. 38C.F.R. § 4.86(a). The second pattern is where the pure tone threshold is 30 decibels or less at 1000 Hz and 70 dB or more at 2000 Hz. If the second pattern exists, the Roman numeral will be elevated to the next higher numeral. Turning to the medical evidence, in a June 2019 private audiological examination, the pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 40 70 70 LEFT 15 30 60 75 70 The average pure tone threshold was 50 in the right ear, and 58.75 in the left ear. However, the examination report indicated that the NU-6 word list was used for speech recognition scores; accordingly, these results cannot be used for rating purposes. Next, in a September 2019 VA examination, the pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 25 65 65 LEFT 15 25 50 70 80 The average pure tone threshold was 43.75 in the right ear, and 56.25 in the left ear. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 80 percent in the left ear. Applying these values to Table VI, this corresponds to Roman Numeral I for the right ear and Roman Numeral IV in the left ear, and collectively a noncompensable rating. A review of the remaining VA and private medical records fails to show any further qualifying audiograms for rating purposes during the period on appeal. As such, the medical evidence weighs against a compensable rating for bilateral hearing loss. PFB Prior to August 24, 2021, the Veteran was rated at 0 percent for PFB under DC 7813-7800, which utilizes the rating criterium for disfigurement of the head, face or neck, for scars, or for dermatitis depending on the predominant disability, the evidence must show: " disfigurement of the head, face, or neck with one characteristic of disfigurement, the eight characteristics being scars 5 or more inches (in.) in length; scars at least one-quarter in. wide at the widest part; surface contour scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyperpigmented in an area exceeding 6 square inches (sq. in.); skin texture abnormal in an area exceeding 6 sq. in.; underlying skin tissue missing in an area exceeding 6 sq. in.; or skin indurated and inflexible in an area exceeding 6 sq. in. (10% under DC 7800); " dermatitis or eczema covering at least 5 percent, but less than 20%, of the entire body or exposed areas (10% under DC 7806); or, " dermatitis or eczema requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past twelve-month period (10% under DC 7806). Turning to the medical evidence, a September 2019 VA examiner diagnosed PFB. The Veteran reported symptoms including papules along the jawline. He also noted that he had previously used topical medication but was not doing so currently. On examination, there was no scarring or disfigurement, no scars, no pustules, and no evidence of infection. The Veteran was noted to not have been treated with oral or topical medications in the past 12 months for any skin disorder. The examiner noted that less than five percent of the exposed body area was affected by PFB. Further, the examiner noted that the condition manifested through inflamed papules on the jawline. The Veteran's skin disability did not manifest through scarring or disfigurement during the appeal period. Thus, it is rated as dermatitis or eczema under DC 7806, which provides that a skin condition covering less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; requiring no more than topical therapy during the past 12-month period is rated as noncompensable. Based on a review of the file, the medical evidence does not support a compensable rating on this basis. In this regard, the medical evidence shows that PFB did not require treatment, did not result in scarring or disfigurement, and did not cover at least 5 percent of the entire body or exposed areas affected prior to August 2021. As such, the medical evidence does not support a compensable rating. To the extent that the Veteran has argued that the September 2019 VA examiner erred by finding that PFB did not cause scaring or disfigurement of the head, face, or neck, the Board finds that the examination was adequate. The examiner reviewed the medical history, examined the Veteran, and completed all required sections of the disability benefits questionnaire. After examining the Veteran, he determined that scarring or disfigurement of the head, face, or neck was not present. The Board affords high probative value to this determination and finds no reason that it was in error. The Board's duty is limited to remand issues when necessary to correct a pre-decisional duty to assist error which is not the case here. Specifically, the evidence does not show that the Veteran had scarring of the face at the time of this examination. As such, it is not a pre-decisional duty to assist error and the Board is not required to remand AMA claims for correction of such errors. 38 C.F.R. § 20.802 (a). Bilateral Knee Disabilities As to the Veteran's orthopedic appeals (bilateral knee and left hip), the disabilities will be evaluated under the pre-amended regulations. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the AMA rating decision on appeal was issued in November 2019. As such, the new regulations were not in effect at this time and are not applicable in this case. The Veteran is rated at 10 percent for right and left knee PFS under DC 5260. Under the regulations, a 20 percent rating is warranted when the objective medical evidence shows: " moderate recurrent subluxation or lateral instability; " dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint; " flexion of the leg limited to 30 degrees; " malunion of the tibia or fibula with moderate knee or ankle disability. Turning to the medical evidence, a September 2019 VA examiner noted no history of moderate recurrent subluxation or lateral instability. Further, the examiner indicated that the Veteran had no history of a semilunar cartilage condition or recurrent effusion. As such, the medical evidence does not support a higher rating. Next, the September 2019 VA examiner measured flexion of the right knee to 120 degrees and extension to 0 degrees. In addition, the examiner noted left knee flexion to 120 degrees and extension to 0 degrees. Normal flexion ranges from 0 to 140 degrees and extension from 140 to 0 degrees. As such, the medical evidence obtained does not support the appeal. Moreover, the September 2019 VA examiner reported no tibial or fibular impairment associated with a knee disability. Accordingly, the medical evidence gathered does not support an increased rating on this basis. In addition to the VA examination report, the clinical treatment records were reviewed. In June 2019, a private consultant noted bilateral knee pain with pain upon flexion. She further noted clicking, popping, and giving out of the knees which caused stumbling. The consultant also noted lateral instability and crepitus of the knees. While the June 2019 private chiropractor indicated that the Veteran exhibited lateral instability, this single, isolated finding is not sufficient to characterize the knee disabilities as overall having lateral instability sufficient to grant a higher 20 percent rating. Moreover, this singular finding is contradicted by the September 2019 VA examination and additional clinical treatment records which noted no lateral instability. Moreover, the VA treatment records reflect complaints of bilateral knee pain; however, they do not support a rating in excess of 10 percent based on the rating criteria. Accordingly, the medical evidence does not support a rating in excess of 10 percent for a bilateral knee disability. Left Hip Disabilities At the time of the rating decision on appeal, the Veteran was rated at 10 percent for left hip strain with limitation of extension under DC 5251, a noncompensable rating for left hip strain with limitation of flexion under DC 5252, and a noncompensable rating for left hip strain with impairment of the thigh under DC 5253. The Board will consider all relevant diagnostic codes. Under the relevant regulations, higher ratings will be warranted if the objective medical evidence shows: " Extension of the thigh limited to 5 degrees (10% under DC 5251); " Flexion of the thigh limited to 45 degrees (10% under DC 5252); " Limitation of adduction of the thigh preventing the Veteran from crossing his/her legs (10% under DC 5253); " Limitation of rotation of the thigh preventing the Veteran from toe-ing out more than 15 degrees (10% under DC 5253); " Malunion of the femur with a slight knee or hip disability (10% under DC 5255); " Flexion of the thigh limited to 30 degrees (20% under DC 5252); " Limitation of abduction of the thigh, motion lost beyond 10 degrees (20% under DC 5253); or " Flexion of the thigh limited to 20 degrees (30% under DC 5252). Turning to the medical evidence, a January 2019 VA examiner noted extension of the left hip to 20 degrees and flexion to 100 degrees. Normal extension ranges from 0 to 30 degrees and normal flexion ranges from 0 to 125 degrees. In November 2019, a VA examination reflected extension to 20 degrees and flexion to 90 degrees. As such, the medical evidence does not support an increased rating based on flexion or extension. Next, the January 2019 examiner noted normal adduction and abduction of the thigh. The September 2019 examiner reported adduction to 20 degrees and abduction to 35 degrees. Further, both examiners found that adduction did not prevent the Veteran from crossing his thighs. Accordingly, the medical evidence does not support an increased rating based on adduction or abduction. In addition, the January 2019 VA and September 2019 examiners reported no malunion or nonunion of the femur, flail hip joint, or leg length discrepancy. Accordingly, the medical evidence does not support an increased rating based on malunion or nonunion of the femur. Next, the clinical treatment records were reviewed. In June 2019, a private consultant noted that the Veteran suffered from progressive left hip pain which intensified on crossing leg, squatting, standing, sitting, walking, using stairs, and weight bearing. She also noted that the left hip clicked, popped, and gave out. The Veteran reported pain upon flexion, adduction, abduction, internal rotation, and external rotation. Despite these symptoms, the private examination did not show symptomology consistent with the rating criteria for an increased rating. Moreover, the VA treatment records show complaints of left hip pain in March 2019; however, they do not show symptomatology as required for an increased rating. As such, the medical evidence does not support the claim for an increased rating for left hip disabilities. The Board has considered the Veteran's lay statements that his disabilities are worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of the disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's hearing loss, PFB, knee disabilities, and hip disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which the disabilities are evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeal is denied. Service Connection Claims Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). GERD Turning to the medical evidence, a June 2019 private consultant noted a diagnosis of GERD. As such, a current disorder is shown and the first element of service connection is met. As to in-service incurrence, the service treatment records (STRs) do not reflect complaints of, treatment for, or a diagnosis of GERD. While he complained of stomach pain in May 1981, the STRs do not reflect a chronic stomach disorder during service or a diagnosis of GERD. As such, the medical evidence does not support the in-service incurrence of a chronic stomach disorder, such as GERD. Moreover, the medical evidence does not support a nexus between current GERD and service. In June 2019, a private consultant indicated that the Veteran had a history of being treated by military medical personnel for GERD and the condition had been present without hiatus. However, this statement is assigned less probative value as it conflicts with the contemporaneous medical evidence of record. As noted above, the STRs did not indicate a diagnosis of or treatment for GERD during active duty. Moreover, the VA clinical treatment records do not reflect a diagnosis of or treatment for GERD. As such, the medical evidence does not support the claim of service connection on a direct basis. To the extent that the Veteran has raised secondary service connection as a theory of entitlement, there are no medical opinions of record which support a link between GERD and a service-connected disability. Further, VA did not fail in its duty to assist him when it did not provide a VA medical opinion regarding whether GERD was secondary to medication use or any other service-connected disability. The Board's duty is limited to remand issues when necessary to correct a pre-decisional duty to assist error which is not the case here. Specifically, the evidence does not show that the Veteran raised secondary service connection as a theory of entitlement until after the November 2019 decision. As such, it is not a pre-decisional duty to assist error and the Board is not required to remand AMA claims for correction of such errors. 38 C.F.R. § 20.802 (a). Lower Extremity Radiculopathy Turning to the medical evidence, a June 2019 private consultant noted a diagnosis of right and left sciatic radicular pain and partial paralysis of the nerve. Accordingly, a current diagnosis is shown and the first element of service connection is met. As to in-service incurrence, the STRs do not reflect complaints of, treatment for, or a diagnosis of radiculopathy or related symptoms such as numbness or tingling during service. Moreover, the Veteran does not contend that radiculopathy began during service. As such, the medical evidence does not support the claim for service connection on a direct basis. Rather, the Veteran's main contention is that radiculopathy is secondary to a lumbar spine disability. In a June 2019 opinion, a consultant opined it was as likely as not that radicular pain was directly and causally related as a progression to the lower back disorder. However, the Veteran is not currently service-connected for a lumbar spine disability. Specifically, service connection for a lumbar spine disorder was not in effect during the evidentiary window and was most recently denied in a March 2023 rating decision. As such, service connection is not warranted on a secondary basis. The Board has considered the Veteran's lay statements that the current disorders were caused by service. While he is competent to report symptoms as this requires only personal knowledge as it comes to him through his senses, he is not competent to offer an opinion as to the etiology of the current disorders due to the medical complexity of the matters involved. Specifically, the Veteran's statements about stomach pain and lower extremity numbness do not suggest a particular etiology of any such disorder. Such competent evidence concerning the nature and extent of the Veteran's disorders has been provided by the medical personnel who examined him during the current appeal, and who rendered pertinent opinions in conjunction with the evaluations. Their findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which the disorders are evaluated. The VA medical professionals explained their reasoning based on an accurate characterization of the evidence. Therefore, the Board attaches greater probative weight to the clinical findings than to the lay statements regarding etiology. In sum, after a careful review of the record, the evidence weighs persuasively against the claim for service connection and there is no doubt to be resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Kokolas, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.