Citation Nr: 18160486
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 18-06 630
DATE:	December 27, 2018
ORDER
Entitlement to an initial compensable evaluation for bilateral hearing loss is denied.
Entitlement to a compensable rating for residual scar, right elbow wound is denied.
FINDINGS OF FACT
1. The Veteran’s service-connected bilateral hearing loss has been manifested by no worse than level II hearing acuity in the right ear and level II hearing acuity in the left ear. 
2. The Veteran’s right elbow scar measures 6cm by 1cm, without pain, instability, or other disabling effect or functional impairment.
CONCLUSIONS OF LAW
1. The criteria for an initial compensable rating for a bilateral hearing loss disability have not been met.  38 U.S.C. §§ 1155, 5107(a) (2012); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2018). 
2. The criteria for a compensable disability rating for a right elbow scar have not been met.  38 U.S.C. §§ 1155, 5107(a) (2012); 38 C.F.R. § 4.118, Diagnostic Code 7800 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service from January 1966 to January 1968. 
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).
The Board notes that a December 2017 rating decision granted service connection for tinnitus.  As a result, the issue of entitlement to service connection for tinnitus is no longer before the Board.
 
Increased Rating
Laws and Regulations
The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 
Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2012).  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2017).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2017). 
The Veteran’s entire history is reviewed when making a disability determination.  See 38 C.F.R. § 4.1 (2017).  Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder.  The Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  See also Hart v. Mansfield, 21 Vet. App. 505 (2008).
Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2017).
In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  He is also competent to report symptoms of his hearing loss and right elbow scar.  Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  The Veteran is competent to describe his symptoms and their effects on employment or daily activities.  His statements have been consistent with the medical evidence of record, and are probative for resolving the matters on appeal.
The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes.
1. Entitlement to an initial compensable evaluation for bilateral hearing loss
Laws and Regulations
A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).
Under the rating criteria, the basic method of rating bilateral hearing loss is based on examination results including a controlled speech discrimination test (Maryland CNC), and a pure tone audiometric test of pure tone decibel thresholds at 1000, 2000, 3000, and 4000 Hz with an average pure tone threshold obtained by dividing these thresholds by four.
Once these test results have been obtained, employing Table VI, a Roman numeral designation of auditory acuity level for hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average.  Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear.  38 C.F.R. § 4.85 (2017). 
There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss.  In such exceptional cases, the Roman numeral designation for hearing loss of an ear may be based only on pure tone threshold average, using Table VIA, or from Table VI, whichever results in the higher Roman numeral.  Exceptional hearing exists when the pure tone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz.  The higher Roman numeral, determined from Table VI or VIA, will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86.
Factual Background and Analysis
After carefully reviewing the evidence of record, the Board finds that the preponderance of the evidence is against entitlement to an initial compensable evaluation for a bilateral hearing loss disability.  
As a preliminary matter, the Board observes that the pure tone thresholds recorded on all of the audiological evaluations detailed below do not reflect exceptional hearing impairment as defined by regulation, as the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz (Hz)) is not 55 decibels or more, and the pure tone threshold is not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  Thus, Table VIa is not for application.  38 C.F.R. § 4.86.  Consequently, the Board will evaluate the Veteran’s hearing using Table VI.
As noted above, the Veteran has a current noncompensable evaluation for service-connected bilateral hearing loss. 
The Veteran underwent a VA examination in September 1994.  On air conduction testing, audiological evaluation pure tone thresholds, in decibels, were as follows:

			HERTZ		
	1000	2000	3000	4000	Average
RIGHT	10	15	50	50	31
LEFT	5	65	70	75	54

Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 86 percent in the left ear.
Applying the air conduction results to the applicable criteria, under Table VI, the right ear pure tone threshold average of 31 decibels combined with the right ear speech discrimination of 88 percent results in a Roman numeral designation of II, while the left ear pure tone threshold average of 54 decibels when combined with the left ear speech recognition of 86 percent results in a Roman numeral designation of II.  Application of these findings to Table VII corresponds to a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100.
The Veteran underwent a VA examination in June 2014.  On air conduction testing, audiological evaluation pure tone thresholds, in decibels, were as follows:
			HERTZ		
	1000	2000	3000	4000	Average
RIGHT	20	20	65	60	41
LEFT	35	70	95	105	76

Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 92 percent in the left ear.
The examiner noted that the Veteran’s hearing loss impacted his ordinary conditions of daily life, including his ability to work as the Veteran reported having difficulty hearing on the telephone and with the television.
Applying the air conduction results to the applicable criteria, under Table VI, the right ear pure tone threshold average of 41 decibels combined with the right ear speech discrimination of 98 percent results in a Roman numeral designation of I, while the left ear pure tone threshold average of 76 decibels when combined with the left ear speech recognition of 92 percent results in a Roman numeral designation of II.  Application of these findings to Table VII corresponds to a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100.
As the September 1994 and June 2014 testing results noted above do not yield findings to support assignment of an initial rating in excess of 0 percent for bilateral hearing loss, the Veteran is not entitled to an initial compensable rating for bilateral hearing loss.  38 C.F.R. §§ 4.7, 4.21.  
Notably, aside from the September 1994 and June 2014 VA examination reports, there are no other audiometric testing results which comply with the requirements of 38 C.F.R. § 4.85 for rating purposes for the period under appeal.  
The Board has carefully considered the Veteran’s assertions and other lay statements of record and in no way discounts the Veteran’s asserted difficulties or his assertions that his bilateral hearing loss should be rated higher.  However, as noted above, the September 1994 and June 2014 VA examinations were conducted in accordance with the requirements for a hearing impairment examination for VA purposes.  See 38 C.F.R. § 4.85(a) (2017).
The lay statements are both competent and credible in regard to reporting worsening hearing acuity and functional effects.  However, far more probative of the degree of the disability are the results of testing prepared by skilled professionals because the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss.  In essence, lay statements are of limited probative value.  As a layperson, the Veteran is competent to report difficulties with his hearing; however, he is not competent to assign particular speech recognition scores or pure tone decibel readings to his current acuity problems.
Although the Veteran has indicated that his hearing is worse than the criteria associated with a noncompensable evaluation, the rating criteria for hearing loss, as addressed above, requires the mechanical application of rating criteria to objectively-obtained audiometric testing results.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The current initial noncompensable evaluation is reflected by the rating evidence of record and there is no indication that the findings on the September 1994 and June 2014 VA audiological examinations are inadequate.  Thus, the Veteran’s claim for an initial compensable rating for his bilateral hearing loss disability cannot be granted.
According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b) (1) (2017).  An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards.  See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).
Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.”  Third, if the rating schedule is inadequate to evaluate a Veteran’s disability picture and that picture has attendant thereto 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 of the Compensation and Pension Service to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extraschedular rating.
With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected bilateral hearing loss were inadequate.  A comparison between the level of severity and symptomatology of the Veteran’s bilateral hearing loss with the established criteria shows that the rating criteria reasonably described his disability level and symptomatology with respect to the symptoms he experienced. 
During his June 2014 VA audiological examination, the examiner noted that the Veteran’s hearing loss impacted his ordinary conditions of daily life, including his ability to work as the Veteran reported having difficulty hearing on the telephone and with the television.
In this case, the Board finds that the schedular rating currently assigned for hearing loss reasonably describes the Veteran’s disability level and symptomatology.  See 38 C.F.R. § 4.85, Diagnostic Code 6100.  The Veteran reports that his hearing loss impacts the ordinary conditions of his daily life as he had difficulty hearing.  The Court has held that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are precisely the effects that VA’s audiometric tests are designed to measure.  Doucette v. Shulkin, No. 15-2818, 2017 WL 877340, at *3 (Vet. App. Mar. 6, 2017).  The situations noted by the Veteran in this case amount to decreased hearing and are not exceptional or unusual for someone with hearing loss.  In Doucette, the Court recognized that there were other functional effects the rating criteria did not discuss or account for, such as dizziness, vertigo, ear pain, recurrent loss of balance, social isolation, etc.  Id., at *3, *4.  No such effects are present in this case.  
The Veteran’s description of difficulty hearing has been measured according to pure tone averages and speech discrimination.  As explained above, the rating criteria are designed to take into account testing that accurately measures difficulty hearing in an objective way and the Veteran’s reports of difficulty hearing simply do not represent an exceptional or unusual case.  As such, the first Thun element cannot be met.  
Accordingly, the Board has concluded that referral of the Veteran’s bilateral hearing loss impairment for extra-schedular consideration is not in order.
Under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  In this case, the Veteran has multiple service connected disabilities, but there is no argument or indication that the combination of these disabilities is so exceptional as to warrant extraschedular consideration.  As such, further discussion of an extraschedular rating based upon the combined effect of multiple conditions is not necessary.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016) (“the Board is required to address whether referral for extraschedular consideration is warranted for a veteran’s disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant’s service-connected disabilities”).
In short, the rating criteria reasonably describe the Veteran’s disabilities level and symptomatology.  The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b) (1) is not warranted.
2. Residual scar of right elbow wound 
The Veteran submitted a claim for an increased rating for his residual scar of the right elbow wound that was received by VA in October 2013.
The Board parenthetically notes that a December 2017 rating decision granted service connection for residuals, degenerative joint disease, right elbow at an initial noncompensable evaluation, effective October 28, 2013 under Diagnostic Codes 5003-5206.  The Veteran has not filed a Notice of Disagreement (NOD) with this decision and it is accordingly not before the Board.
The Veteran has a noncompensable rating for his residual scar of the right elbow wound under Diagnostic Code 7805.
The Board notes that scars in general are evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805.  Amendments to those criteria became effective on October 23, 2008.  See Schedule for Rating Disabilities; Evaluation of Scars, 73 Fed. Reg. 54,708 (Sept. 23, 2008).  Inasmuch as the entire period on appeal is subsequent to October 2008, the new criteria are for application.
Diagnostic Code 7805 provides that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code.  38 C.F.R. § 4.118.
Diagnostic Code 7800 contemplates scars of the head, face, or neck.  38 C.F.R.     § 4.118, Diagnostic Code 7800.  
Diagnostic Code 7801 provides ratings for burn or other scars (not on the head, face, or neck) that are deep and nonlinear.  Deep and nonlinear scars involving an area or areas of at least 6 square inches (39 sq. cm) but less than 12 square inches (77 sq. cm.) are rated 10 percent.  Scars in an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) are rated 20 percent. Scars in an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) are rated 30 percent.  Scars in an area or areas of 144 square inches (929 sq. cm.) or greater are rated 40 percent.  38 C.F.R. § 4.118.   Note (1) specifies that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801 (effective from October 23, 2008).
Diagnostic Code 7802 provides a maximum 10 percent rating for a burn or other scars that are superficial and nonlinear involving an area of 144 square inches (929 sq. cm) or greater.  Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage.  38 C.F.R. § 4.118, Diagnostic Code 7802.
Diagnostic Code 7804 provides a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a 30 percent rating for five or more scars that are unstable of painful.  Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Note (3) provides that scars evaluated under Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Code 7804, when applicable.  38 C.F.R. § 4.118, Diagnostic Code 7804.
In every instance where the schedule does not provide a 0 percent rating for a diagnostic code, a 0 percent rating will be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31.
Factual Background and Analysis
The Veteran underwent a VA examination in November 2017.  The examiner noted that the Veteran had a shrapnel wound of the right elbow that was 6cm x 1cm wide.  The examiner indicated that there was no objective evidence that the scar was painful, unstable, had a total area equal to or greater than 39 square centimeters or was located on the head, neck or face. 
The Board finds that the preponderance of the evidence is against a compensable rating for the Veteran’s service-connected right elbow scar.
As noted above, the Veteran’s right elbow scar is currently rated as noncompensable under Diagnostic Code 7805, which provides that other scars (including linear scars), not otherwise rated under Diagnostic Code 7800-04, in addition to the other effects of scars which are otherwise rated under Diagnostic Codes 7800-04, are also to be rated based on any disabling effects not provided for by Diagnostic Code 7800-04.  Id., Diagnostic Code 7805.  
Diagnostic Code 7801 provides that scars other than on the head, face, or neck that are deep, nonlinear, and cover an area of at least 6 square inches (39 square (sq.) centimeters (cm.)) warrant a compensable evaluation.  Id., Diagnostic Code 7801.  A deep scar is one associated with underlying soft tissue damage. Id.  As documented in the VA examination discussed above, there is no evidence that the Veteran’s right elbow scar covers an area of at least 6 square inches, or that they it is deep. Hence, Diagnostic Code 7801 is not for application. 
Diagnostic Code 7802 provides that scars, other than on the head, face, or neck, that are superficial and nonlinear, and cover an area of at least 144 square inches (929 sq. cm.) warrant a compensable evaluation.  Id, Diagnostic Code 7802.  A superficial scar is one not associated with underlying soft tissue damage. Id.  In this case, the Veteran’s right elbow scar does not cover a surface area of 144 square inches (929 sq. cm) or greater; therefore, a compensable rating is not available under Diagnostic Code 7802. 
Diagnostic Code 7804 contemplates scars that are unstable or painful.  Id, Diagnostic Code 7804.  A 10 percent disability rating is assigned for one or two scars that are unstable or painful. Id.  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Id., Note 1.  If one or more scars are both unstable and painful, an additional 10 percent is to be added to the evaluation based on the total number of unstable or painful scars.  Id., Note 2.  As noted in the VA examination discussed above, the Veteran’s elbow scar is not unstable or painful; therefore, a compensable rating is not warranted under Diagnostic Code 7804. 
As to Diagnostic Code 7805, no scar has not been found to result in limitation of function.  There have been no other pertinent physical findings, complications, signs and/or symptoms (such as muscle or nerve damage) associated with any scar (regardless of location) and the scar has been found to have no impact on the Veteran’s ability to work
In sum, a compensable rating is not warranted at any point during the rating period on appeal for a right elbow scar.  As the preponderance of the evidence is against a higher compensable rating, the benefit-of-the-doubt doctrine is not applicable.  See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53.

 
CHRISTOPHER MCENTEE
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	James A. DeFrank, Counsel 

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