Decision A26040991

Citation Nr: A26040991
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 250425-547173
DATE: April 30, 2026

ORDER

Entitlement to a rating in excess of 30 percent for left knee joint replacement (previously rated as instability left knee due to ligamentus relaxation) is denied.

Entitlement to a compensable rating for bilateral hearing loss is denied.

Entitlement to a rating in excess of 10 percent for tinnitus is denied.

Entitlement to a compensable rating for scars, left knee, is denied.

FINDINGS OF FACT

1. The probative evidence of record demonstrates that during the period on appeal, the Veteran's residuals of knee replacement surgery involved intermediate degrees of residual weakness, pain, or limitation of motion.

2. The probative evidence of record demonstrates that during the period on appeal, the Veteran's hearing acuity showed at most Level I impairment in the bilateral ears.

3. The Veteran is in receipt of the highest rating available for tinnitus.

4. The Veteran has one linear, non-painful scar of the left knee that is not unstable and measures 19 square centimeters.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a rating in excess of 30 percent for left knee joint replacement (previously rated as instability left knee due to ligamentus relaxation) have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.71a, Diagnostic Codes 5055, 5256-5262.

2. The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38?U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100.

3. The criteria for entitlement to a rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.87, Diagnostic Code 6260.

4. The criteria for entitlement to a compensable rating for scars left knee have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.118, Diagnostic Code 7800 - 7805.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from August 1974 to August 1977.

This case comes before the Board of Veterans' Appeals (Board) on appeal from April 2025 and March 2025 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ).

In the April 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the April 2025 AOJ decision on appeal with regard to the increased rating claim for the Veteran's left knee joint replacement, and March 2025 for the increased rating claims for the Veteran's bilateral hearing loss and tinnitus. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

The Board acknowledges that the Veteran sought to appeal additional issues in the April 2025 Notice of Disagreement. Regarding the issue of entitlement to a rating in excess of 10 percent for degenerative joint disease left knee, status post loose body arthroscopy, the March 2025 rating decision notes that a decision on this issue was being deferred for additional development. Thus, the March 2025 rating decision
5) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

The Board acknowledges that the Veteran sought to appeal additional issues in the April 2025 Notice of Disagreement. Regarding the issue of entitlement to a rating in excess of 10 percent for degenerative joint disease left knee, status post loose body arthroscopy, the March 2025 rating decision notes that a decision on this issue was being deferred for additional development. Thus, the March 2025 rating decision did not contain a decision that was eligible for appeal. 

The April 2025 Notice of Disagreement also included the issue of entitlement to special monthly pension based on the need for aid and attendance, effective August 18, 2022. Review of this matter is untimely as to the June 2023 rating decision that adjudicated it. As of April 2025, the rating decision was over one year old and no good cause for an extension of time to submit a Notice of Disagreement is present. Accordingly, the matter is not before the Board.

Increased Ratings

Disability evaluations are determined by the application of the facts presented to the VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. 

Where an increase in the level of disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7?Vet. App.?55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. (1999); Hart v. Mansfield, 21 Vet. App. (2007). 

When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25?Vet. App.?32 (2011); DeLuca v. Brown, 8?Vet. App.?202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9?Vet. App.?7 (1996). 

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. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. 

Generally, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6?Vet. App.?259, 262 (1994). The Court has also held that within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise. Cullen v. Shinseki, 24?Vet. App.?74 (2010). 

1. Entitlement to a rating in excess of 30
. 38 C.F.R. § 4.14. 

Generally, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6?Vet. App.?259, 262 (1994). The Court has also held that within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise. Cullen v. Shinseki, 24?Vet. App.?74 (2010). 

1. Entitlement to a rating in excess of 30 percent for left knee joint replacement (previously rated as instability left knee due to ligamentus relaxation) is denied.

The Veteran asserts that he is entitled to a rating in excess of 30 percent for left knee joint replacement (previously rated as instability left knee due to ligamentus relaxation). Specifically, the Veteran argues that he never received a 100 percent rating after undergoing a knee replacement. See April 2025 Notice of Disagreement.

The Board notes that in a June 2025 rating decision, the AOJ assigned an increased rating of 100 percent effective March 26, 2024, for the Veteran's left knee total joint replacement (previously rated as instability left knee due to ligamentus relaxation). The AOJ further assigned an evaluation of 30 percent effective September 1, 2024. Accordingly, the issue of entitlement to a rating in excess of 30 percent is moot from March 26, 2024, to August 31, 2024, and the Board will consider whether the Veteran is entitled to an increased rating beginning September 1, 2024. 

The Veteran's left knee condition is currently evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5055, which provides that for four months following resurfacing or replacement (prosthesis), the knee joint warrants an evaluation of 100 percent. Thereafter, where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent rating is warranted. Where there are intermediate degrees of residual weakness, pain, or limitation of motion, the disability is rated by analogy to Diagnostic Codes 5256, 5261, or 5262. The minimum rating for a total replacement is 30 percent. 

The evidence of record does not support a finding that the Veteran has any of the knee conditions considered by Diagnostic Codes 5256 and 5262.

Under Diagnostic Code 5261, a 10 percent rating is warranted for extension of the knee limited to 10 degrees; a 20 percent rating is warranted for extension of the knee limited to 15 degrees; a 30 percent rating is warranted for extension of the knee limited to 20 degrees; a 40 percent for extension of the knee limited to 30 degrees, and 50 percent for extension of the knee limited to 45 degrees.

The Veteran underwent a VA examination in April 2025. At that time, the Veteran endorsed symptoms such as popping and pain, but he denied flare-ups and a history of instability, recurrent subluxation, and frequent effusion of the knee. Upon examination, flexion was limited to 110 degrees and extension to 10 degrees. Pain was noted on both flexion and extension that caused functional loss. There was pain with active and passive motion, and there was objective evidence of crepitus and localized tenderness or pain on palpation of the joint or associated soft tissue. 

According to the examination report, the Veteran was able to perform repetitive-use testing with no additional loss of function or range of motion after three repetitions. However, the examiner estimated the following additional functional loss immediately after repeated use over time: flexion limited to 105 degrees and extension limited to 15 degrees, due to pain, fatigability, weakness and lack of endurance. There was no atrophy or ankylosis, nor was there evidence of tibial or fibular impairment. The Veteran reported regular use of a rollator.

The examination acknowledged the Veteran's total knee joint replacement surgery in 2014 and found that the Veteran had intermediate degrees of residual weakness, pain, or limitation of motion.

Here, the Veteran's range of motion findings for his left knee limitation of extension result in a 20 percent rating. Thus, the Board finds that the Veteran's left knee condition is most favorably evaluated under Diagnostic Code 5055, where the minimum rating is 30 percent. 

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 30 percent for left knee joint replacement (previously rated as instability left knee due to ligament
 impairment. The Veteran reported regular use of a rollator.

The examination acknowledged the Veteran's total knee joint replacement surgery in 2014 and found that the Veteran had intermediate degrees of residual weakness, pain, or limitation of motion.

Here, the Veteran's range of motion findings for his left knee limitation of extension result in a 20 percent rating. Thus, the Board finds that the Veteran's left knee condition is most favorably evaluated under Diagnostic Code 5055, where the minimum rating is 30 percent. 

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 30 percent for left knee joint replacement (previously rated as instability left knee due to ligamentus relaxation) for the period beginning September 1, 2024. As the evidence of record persuasively weighs against a rating in excess of 30 percent, the benefit-of-the-doubt rule does not apply and the claim is denied. ?38 U.S.C.?§ 5107(b); 38 C.F.R. 4.3, 4.7; Lynch v. McDonough,?21 F.4th 776?(2021).

2. Entitlement to a compensable rating for bilateral hearing loss is denied.

The Veteran asserts that he is entitled to a compensable rating for bilateral hearing loss.

Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi 3 Vet. App. 345, 349 (1992). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board may interpret results from a private audiometric graph. Savage v. Shinseki, 24 Vet. App. 259, 272-273 (2011). Speech discrimination testing must utilize the Maryland CNC word list to be considered for evaluation purposes. 38 C.F.R. § 4.85(a).

To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38?C.F.R. § 4.85, Tables VI and VII.

An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b).

In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).

Turning to the evidence relevant for rating purposes, the Veteran underwent a VA examination in March 2025. During the examination, the Veteran reported a gradual decline in his hearing. Audiology results at the time showed the following:

? 	HERTZ? 

? 	1000? 	2000? 	3000? 	4000? 

RIGHT? 	 25? 	 35? 	 45? 	 50? 

LEFT? 	 20? 	 30? 	 35? 	 40? 

The average pure tone thresholds, in decibels, was 38.75 for the right ear and 31.25 in the left ear. The Veteran's Maryland CNC Word list speech recognition score was 92 percent in both ears.

Applying the results to Table VI, the findings yield a numeric designation of Level I for
 a gradual decline in his hearing. Audiology results at the time showed the following:

? 	HERTZ? 

? 	1000? 	2000? 	3000? 	4000? 

RIGHT? 	 25? 	 35? 	 45? 	 50? 

LEFT? 	 20? 	 30? 	 35? 	 40? 

The average pure tone thresholds, in decibels, was 38.75 for the right ear and 31.25 in the left ear. The Veteran's Maryland CNC Word list speech recognition score was 92 percent in both ears.

Applying the results to Table VI, the findings yield a numeric designation of Level I for both ears. Entering the resulting numerical designation into 38 C.F.R. § 4.85, Table VII equates to a 0 percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown; therefore, the use of Table VIA is not warranted for rating purposes.

Based on the evidence above, and a mechanical application of the rating schedule, the Board finds that a compensable rating is not warranted for the Veteran's bilateral hearing loss.

The Board acknowledges and considers the lay evidence of record when adjudicating this claim. The Veteran is competent to report his difficulty hearing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159 (a)(2)(2017). Nonetheless, as a layperson, without the appropriate medical training and expertise, the Veteran's statements are not competent evidence to provide a probative opinion on a medical matter, especially the severity of his bilateral hearing loss disability in terms of the applicable rating criteria. Rather, this requires appropriate medical findings regarding the extent and nature of his bilateral hearing loss, including audiometric testing for pure tone thresholds.

The rating criteria contemplates speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017); see also Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017).

For the above reasons, the Board finds that the evidence persuasively weighs against the claim of entitlement to a compensable disability rating for bilateral hearing loss. As such, the benefit of the doubt doctrine is not for application and the claim is denied. See 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

3. Entitlement to a rating in excess of 10 percent for tinnitus is denied.

The Veteran seeks an increased rating for his service-connected tinnitus, currently rated 10 percent disabling under Diagnostic Code 6260.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

In March 2025, the Veteran underwent a VA examination for hearing loss and tinnitus. At that time, the Veteran reported intermittent symptoms lasting seconds to a minute in duration and occurring a few times per month.   

Under Diagnostic Code 6260, a single 10 percent disability rating is warranted for tinnitus, regardless of whether it is unilateral or bilateral, or whether it is constant versus recurrent. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).  

Accordingly, the Veteran's appeal for an increased schedular rating in excess of 10 percent for his tinnitus must be denied, as he is already in receipt of the maximum schedular evaluation. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

4. Entitlement to a compensable rating for scars left knee is denied.

In a February 2024 rating decision, the AOJ granted service connection for scars left knee and assigned an evaluation of 0 percent effective June 30, 2017. In March 2025, the Veteran submitted a claim for an increased rating, which the AOJ denied in the April 2025 rating decision on appeal.

Scars are rated under Diagnostic Codes 7800 - 7805 within 38 C.F.R. § 4.118. Pursuant to the rating schedule, Diagnostic Code 7800 rates scars of the head, face, and neck. Diagnostic Code 7801 rates scars, not of the head, face, or neck, that are deep and nonlinear (under former criteria
 left knee is denied.

In a February 2024 rating decision, the AOJ granted service connection for scars left knee and assigned an evaluation of 0 percent effective June 30, 2017. In March 2025, the Veteran submitted a claim for an increased rating, which the AOJ denied in the April 2025 rating decision on appeal.

Scars are rated under Diagnostic Codes 7800 - 7805 within 38 C.F.R. § 4.118. Pursuant to the rating schedule, Diagnostic Code 7800 rates scars of the head, face, and neck. Diagnostic Code 7801 rates scars, not of the head, face, or neck, that are deep and nonlinear (under former criteria, prior to August 13, 2018) or are associated with underlying soft tissue damage (under current criteria).  Diagnostic Code 7802 rates scars not of the head, face, or neck, that are superficial and nonlinear (under former criteria, prior to August 13, 2018), or that are not associated with underlying soft tissue damage (under current criteria).  Diagnostic Code 7804 rates scars that are unstable or painful.  

Diagnostic Code 7805 rates scars that are not covered under any of the previous Diagnostic Codes, with the instruction to evaluate any other disabling effects under an appropriate Diagnostic Code.  Essentially this means that scars are evaluated based on their location, their depth, their linear or nonlinear qualities, their stability, and their pain, as well as any other effects they may cause.

The Veteran underwent a VA scars examination in April 2025. At that time, the examiner reported that the Veteran had a scar to the left knee that was not painful or unstable. The examiner did not describe the scar as linear and noted that it measured 19 square centimeters. There were no scars with underlying tissue damage and the scar itself did not result in any limitation of function.

Noting that the Veteran's left knee scar is not of the head or neck, Diagnostic Code 7800 does not apply. As the scar is not associated with underlying soft tissue damage, Diagnostic Code 7801 does not apply. Diagnostic Code 7802, on the other hand, does apply. As the scar is not painful, Diagnostic Code 7804 does not apply. Additional evaluation under Diagnostic Code 7805 is not warranted, as the exam report does not note painful motion of the joint or any other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04. See 38 C.F.R. § 4.14.

Under Diagnostic Code 7802, for scars, not of the head, face, or neck, that are not associated with underlying soft tissue damage, a 10 percent rating is warranted when there is a total scar area of 144 square inches-or 929 square centimeters-or greater. In this case, as the total area of the Veteran's left knee scar is 19 square centimeters, this does not meet the criteria for a 10 percent rating.

Accordingly, the evidence persuasively favors a finding that the Veteran's left knee scar does not meet the criteria for a compensable rating throughout the period on appeal. As the evidence persuasively favors this finding, the "benefit of the doubt" rule is not applicable and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

 

 

B. D. WATSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Klu, E. S.

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.