Citation Nr: 1754167	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  06-10 031	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU), prior to September 27, 2012.

2.  Entitlement to service connection for bilateral hearing loss disability.

3.  Entitlement to a rating in excess of 10 percent for a chronic left hip disability.

4.  Entitlement to a rating in excess of 10 percent for a chronic right hip disability.

5.  Entitlement to a rating in excess of 20 percent for right knee chondromalacia patella.

6.  Entitlement to a rating in excess of 10 percent for right knee limitation of motion.

7.  Entitlement to a rating in excess of 10 percent for left knee chondromalacia. 

8.  Entitlement to a rating in excess of 10 percent for left knee instability.

9.  Entitlement to special monthly compensation (SMC) for specially adapted housing.

10.  Entitlement to SMC for automobile and adaptive equipment.

11.  Entitlement to service connection for a heart disorder, to include ischemic heart disease and residuals of a myocardial infarction.

12.  Entitlement to an initial rating in excess of 10 percent for a right knee surgical scar.

13.  Entitlement to an initial compensable rating for a left knee surgical scar.

14.  Entitlement to a higher initial rating for a left arm shrapnel scar, rated as noncompensable prior to November 10, 2014, and 10 percent thereafter.


REPRESENTATION

Appellant represented by:	Robert P. Walsh, Attorney at Law


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A.Z., Counsel



INTRODUCTION

The Veteran served on active duty from August 1969 to June 1973.  

This appeal is before the Board of Veterans' Appeals (Board) from adverse rating decisions of Department of Veterans Affairs (VA) Regional Offices (ROs).  

In June 2007, the Veteran and his wife testified at a Board hearing before a Veterans Law Judge (VLJ) regarding the issues of service connection for hearing loss and a TDIU.  A transcript is included in the claims file.  In February 2008, the Board remanded these issues.

The VLJ who conducted the June 2007 hearing is no longer employed by the Board.  However, in a June 2014 substantive appeal, the Veteran requested a hearing before a VLJ.  In November 2014, the Veteran testified at a Board hearing at the RO before the undersigned regarding the issues of an initial rating for PTSD in excess of 50 percent, service connection for hearing loss, and a TDIU.  A transcript is included in the claims file.

In September 2015, the Board decided in part, and remanded in part, the appeal. 

In a September 2016 Rating Decision, the Agency of Original Jurisdiction (AOJ) granted a 10 percent rating for the Veteran's shrapnel scar of the left arm, effective November 10, 2014.  The Veteran has not expressed satisfaction with the ratings assigned for either of the periods on appeal; therefore, the issue has been characterized to reflect that "staged" ratings are assigned, and that each stage remains on appeal.  See AB v. Brown, 6 Vet. App. 35 (1993).

In March 2017, the Veteran was afforded another hearing via videoconference before the undersigned VLJ.  A transcript of the hearing is of record.

With respect to the claims decided herein, the remand instructions have been substantially complied with.  See Stegall v. West, 11 Vet. App. 268 (1998).  Furthermore, the Veteran was provided with all appropriate laws and regulations in prior Statements of the Case and Supplemental Statements of the Case.

The issues of an initial rating in excess of 10 percent for a right knee surgical scar; an initial compensable rating for a left knee surgical scar and a higher initial rating for a left arm shrapnel scar, rated as noncompensable prior to November 10, 2014, and 10 percent thereafter; a rating in excess of 20 percent for right knee chondromalacia patella; ratings in excess of 10 percent for a chronic left hip disability, a chronic right hip disability, right knee limitation of motion, left knee chondromalacia, and left knee instability; SMC for specially adapted housing and automobile and adaptive equipment; and a TDIU prior to September 27, 2012, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  At no time prior to the filing of the claim, or during the pendency of the claim, does the Veteran have a current bilateral hearing loss disability for VA purposes.

2.  At no time prior to the filing of the claim, or during the pendency of the claim, does the Veteran have a diagnosed heart disorder, to include ischemic heart disease and residuals of a myocardial infarction.

3.  Prior to November 10, 2014, the Veteran's left shoulder shrapnel scars were not demonstrated to be painful; from November 10, 2014, one scar was shown to be painful.


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss disability have not been met.  38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017).

2.  The criteria for service connection for a heart disorder, to include ischemic heart disease and residuals of a myocardial infarction, have not been met.  38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017).

3.  The criteria for an initial compensable rating, prior to November 10, 2014, and a rating in excess of 10 percent thereafter, have not been met.  38 U.S.C. § 1155  (West 2014); 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (effective prior to October 23, 2008), Diagnostic Codes 7801-7805 (effective October 23, 2008).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

A.   Service Connection Claims

Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection.   See 38 U.S.C.A. § 1131; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability).  "In the absence of proof of a present disability there can be no valid claim."  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

The requirement of a current disability is satisfied when the Veteran has a disability at the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  However, when the record contains a recent diagnosis of disability prior to the Veteran's filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency.  Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).

Here, the Veteran claims service connection for bilateral hearing loss and a heart disorder.  However, the Board finds that the preponderance of the evidence is against both claims, as the first element of service connection, i.e., a current diagnosis, has not been shown at any time during the pendency of the appeal, and the record does not contain a recent diagnosis of either disability prior to the Veteran's filing of the claims.  

Regarding the Veteran's bilateral hearing loss claim, notably, he entered service with normal hearing during his August 1969 enlistment examination, then experienced what was deemed a temporary change in hearing sensitivity, as reflected on a June 1972 audiogram showing bilateral hearing loss, and then had normal hearing at his May 1973 separation examination, with a 15/15 whispered voice test bilaterally.   Post-service, the Veteran denied having hearing loss as late as  February 2003.  Significantly, he has undergone numerous audiological examinations during the appeal period, all of which show that his hearing impairment does not meet VA criteria to be considered a hearing loss disability.

In particular, the Veteran underwent a VA audiological examination in February 2005.  Audiological testing revealed pure tone thresholds, in decibels, as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
25
15
15
20
35
LEFT
15
5
15
20
25

Speech recognition was 94 percent in the right ear and 94 percent in the left ear.  

A May 2005 private audiological examination showed the following , interpreted from a graph:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
20
25
40
LEFT
10
15
15
25
30

Speech discrimination testing was 100 percent in both ears, although it was not specified if the Maryland CNC Test was used.

The Veteran underwent another VA examination in July 2008, yielding the following results:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
10
15
20
30
LEFT
15
10
10
20
20

Speech recognition was 96 percent in the right ear and 94 percent in the left ear.  

Most recently, a March 2016 VA audiological examination showed the following: 




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
15
25
35
LEFT
15
5
15
25
35

Speech recognition was 100 percent in the right ear and 94 percent in the left ear.  

Such scores do not qualify as a hearing loss disability, per VA standards.  Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385. 

Regarding the Veteran's claimed heart disorder, he underwent a VA examination for such in May 2013.  Findings were negative for ischemic heart disease and congestive heart failure.  His medical history was negative for percutaneous coronary intervention, coronary bypass surgery, heart transplant, implanted cardiac pacemaker, and implanted automatic implantable cardioverter defibrillator.  Diagnostic testing was negative for cardiac hypertrophy or dilation.  An MET test was not performed, as the Veteran denied experiencing any relevant symptoms with any level of physical activity.  The examiner noted that the Veteran reported a history of a myocardial infarction in 2001, but that there was no documentation of such, and his previous EKGs, to include most recently in 2012, show no evidence of an old myocardial infarct.

Furthermore, the Board finds that post-service private and VA treatment records likewise fail to show a diagnosis of a hearing loss disability or heart disorder.  

Therefore, the Board finds that, at no time during the pendency of the claim does the Veteran have a current disability of bilateral hearing loss or a heart disorder, and the record does not contain a recent diagnosis of either disability in the time period just prior to the Veteran's filing of a claim.  See McClain, supra; Romanowsky, supra.  Accordingly, in the absence of a current disability, such claims must be denied.   

B.  Increased Rating

The Veteran's shrapnel scars of the left upper arm are rated as noncompensable prior to November 10, 2014, and 10 percent thereafter.

Effective October 23, 2008, VA revised the criteria for the evaluation of scars to allow for separate evaluations for scars that are both disfiguring and painful.  73 Fed. Reg. 54,710-12 (Sept. 23, 2008).  The implementing regulation for the new rating criteria provides that these revisions apply only to applications for benefits received by VA on or after October 23, 2008.  VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects.  VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).  Here, as the Veteran's claim was received by VA on May 31, 2004, the Board must consider both the old and new regulations.

Prior to October 23, 2008, scars (other than those involving the head, face, or neck) that are deep or that cause limited motion warranted a 10 percent rating for an area or areas exceeding 6 square inches (39 sq. cm.).  A 20 percent rating was warranted for an area or areas of such scars exceeding 12 square inches (77 sq.cm.).  38 C.F.R. § 4.118, Diagnostic Code 7801 (2008).  Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, were separately rated and combined in accordance with 38 C.F.R. § 4.25 (2008).  
38 C.F.R. § 4.118, Diagnostic Code 7801, Note (1) (2008).  A deep scar was one associated with underlying soft tissue damage.  38 C.F.R. § 4.118, Diagnostic Code 7801, Note (2) (2008).  A 10 percent rating was also warranted for scars (other than those on the head, face, or neck) that were superficial and that did not cause limited motion, provided that they covered an area or areas of 144 square inches (929 sq. cm.) or greater.  38 C.F.R. § 4.118, Diagnostic Code 7802 (2008).  A 10 percent rating was warranted for scars which were superficial and unstable.  38 C.F.R. § 4.118, Diagnostic Code 7803 (2008).  An unstable scar was one where, for any reason, there was frequent loss of covering of skin over the scar.  38 C.F.R. § 4.118, Diagnostic Code 7803 (2008).  A 10 percent rating was warranted for a superficial scar which was painful on examination.  38 C.F.R. § 4.118, Diagnostic Code 7804 (2008).  Other scars were rated based on the limitation of function of the affected part.  38 C.F.R. § 4.118, Diagnostic Code 7805 (2008).

Under the newer criteria, Diagnostic Code 7804 pertains to evaluation of scars that are unstable or painful, with the assignment of a 10 percent rating for one or two such scars, a 20 percent rating for three or four scars, and a 30 percent rating for five or more scars.  Note 1 defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar.  Note 2 provides that where one or more scars are both unstable and painful, 10 percent should be added to the evaluation that is based on the total number of unstable or painful scars.  Note 3 states that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under 7804 when applicable.  38 C.F.R. § 4.118 (2017).

Diagnostic Codes 7801 and 7802 continue to provide for assignment of disability evaluations on the basis of surface area of the affected scars.  The revised Diagnostic Code 7805 applies to other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804.  A rating is to be assigned on the basis of any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under another appropriate diagnostic code.  38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2017).

The Veteran's shrapnel scars of the left upper arm were examined in July 2008.  Examination of the Veteran's left upper arm revealed three scars.  The examiner described the first as a "large crater scar" that was 1.5 centimeters wide by 1.5 centimeters across by 0.25 centimeters deep, situated on the lateral side between the biceps and triceps.  The scar was a keloid, and was tan, atrophic and shiny.  It was adhered to the underlying tissue and not unstable.  There was less than 1 percent soft tissue injury.  There was no inflammation or edema.  There was induration and flexibility in its width and circumference.  The examiner found that it did not limit mobility of the elbow and was minimally disfiguring.

Medial to that scar, the examiner noted two additional scars on the left upper arm-one measuring 1.5 centimeters by 0.25 centimeters, and the other measuring 2 centimeters by 0.25 centimeters.  Both scars were lighter flesh colored, shiny, minimally keloid formed and superficial.  They were not edematous, inflamed, tender or painful.  They were adhered to the underlying tissue and were not unstable.  The scars were indurated and flexible, with no tissue loss, and did not limit mobility.  An X-ray of the left upper arm revealed no foreign bodies.

The Veteran was re-examined in November 2014.  The first scar on his left upper arm was described as circular wound with an irregular border, measuring 1.5 centimeters by 1.5 centimeters by 0.1 centimeters.  Such scar was light tan, adhered to the underlying tissue, atrophic, and not unstable, depressed, shiny, edematous or inflamed.  The Veteran reported pain with light palpation and irritation when his clothes rub over the scar.  There was no limitation of movement caused by his scarring.

The second scar and third scar were each measured as 0.5 centimeters by 0.1 centimeters big, and were light tan, atrophic, superficial and not unstable.  There was pain with light palpation of the scars and surrounding area.  

The examiner noted that the Veteran had one painful scar-the circular scar-but that none of the scars were both painful and unstable, and that the total area of the Veteran's superficial non-linear scars measured 0.75 square centimeters.  There was no evidence of loss of function of the left arm, to include neurological effects.  The examiner noted no clinical evidence of a change in status of the scarring since the Veteran's last VA examination, and found no functional impact.

Upon review of the evidence of record, the Board finds that a compensable rating is not warranted for the Veteran's left upper arm scar prior to November 10, 2014.  The evidence does not show that the scar is painful and/or unstable as required for a compensable rating under Diagnostic Code 7804 (old and new rating criteria require scar to be painful). 

Additionally, a rating in excess of 10 percent is not warranted from November 10, 2014.  In this regard, the Veteran was only noted to have one painful scar, which warrants a 10 percent rating under the new Diagnostic Code 7804, and was the maximum rating under the old Diagnostic Code 7804.

Further, a rating under the old or revised Diagnostic Code 7805 is inapplicable, as both VA examiners explicitly stated that the Veteran's scar does not cause any limitation of function.  

Similarly, a rating under the old or revised Diagnostic Code 7801 is inapplicable, as the Veteran's scars have not been found to cause limited motion, and do not exceed 6 square inches.

Likewise, as the Veteran's scar does not involve an area of 144 square inches, the old or new version of Diagnostic Code 7802 is inapplicable.

While the Veteran's representative has argued that the Veteran has a retained foreign body and should therefore be rated under a different diagnostic code, no foreign bodies have been found on X-ray.

For these reasons, the Board finds that a compensable rating prior to November 10, 2014, and a 10 percent rating thereafter, under either the "old" or "revised" criteria for rating scars is not warranted.

C.  Other Considerations

The Board has carefully reviewed and considered the Veteran's statements regarding his claimed bilateral hearing loss, heart disorder and the severity of his left upper arm scarring.  The Board also acknowledges that the Veteran, in advancing this appeal, believes in the merits of his appeal.  Moreover, the Veteran is competent to report observable symptoms.  Layno v. Brown, 6 Vet. App. 465 (1994).  In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the claims are the most probative evidence with regard to evaluating the disabilities on appeal.

As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application, and the Veteran's claims must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55.


ORDER

Service connection for bilateral hearing loss disability is denied.

Service connection for a heart disorder, to include ischemic heart disease and residuals of a myocardial infarction, is denied.

A higher initial rating for a left arm shrapnel scar, rated as noncompensable prior to November 10, 2014, and 10 percent thereafter, is denied.


REMAND

During the March 2017 hearing, the Veteran testified that his bilateral knee and hip disorders had worsened.  He was last afforded VA examinations for such disorders in September 2013.  Accordingly, new VA examinations to assess the current severity of such disorders is warranted.

Similarly, the Board notes that the Veteran was last afforded a VA examination for his bilateral scarring of the knees in July 2008.  While the Veteran was afforded an examination for his scarring of his left upper arm in November 2014, the examiner did not address the Veteran's knees, but noted that the lower extremities were not affected.  The Board finds the July 2008 examination is too remote in time to accurately rate his scarring of the bilateral knees.  Accordingly, new VA examinations to assess the current severity of such disorders is warranted.

The remaining issues of entitlement to TDIU, prior to September 27, 2012, special monthly compensation for specially adapted housing and automobile and adaptive equipment may be impacted by the outcome of the remanded increased rating claims. Therefore, such claims are inextricably intertwined and adjudication must be deferred.  See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue).

Accordingly, the case is REMANDED for the following action:

1.  Obtain any recent, outstanding VA treatment record and associate them with the electronic claims file.

2.  Schedule the Veteran for appropriate VA examinations to assess the severity of his bilateral knee and hip disorders, as well as his bilateral surgical scarring of the knees.  

3.  Then, readjudicate the issues on appeal, to include the intertwined issues.  

The appellant has the right to submit additional evidence and argument on the matters 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).



______________________________________________
R. FEINBERG
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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