Citation Nr: 1301946	
Decision Date: 01/17/13    Archive Date: 01/23/13

DOCKET NO.  06-20 064	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a vision disability.

2.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for right ear hearing loss.

3.  Entitlement to a compensable disability rating for service-connected hypertension for the period prior to March 17, 2005.

4.  Entitlement to a disability rating in excess of 10 percent for service-connected hypertension for the period since March 17, 2005.

5.  Entitlement to a compensable disability rating for service-connected left ear hearing loss.

6.  Entitlement to a compensable disability rating for service-connected laceration, left hand.

7.  Entitlement to a compensable disability rating for service-connected laceration, upper lip.

8.  Entitlement to a compensable disability rating for service-connected tinea versicolor, chest.

9.  Entitlement to a compensable disability rating for service-connected cyst, chest.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

K. Fitch, Counsel


INTRODUCTION

The Veteran served on active duty from September 1977 to September 1997.

This matter comes before the Board of Veterans' Appeals (Board) from a January 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that reopened the Veteran's previously denied claim of entitlement to service connection for vision loss and declined to reopen his previously denied claim of entitlement to service connection for right ear hearing loss on the basis that new and material evidence had not been received.  The January 2005 rating decision also denied the Veteran's claims of entitlement to increased disability ratings for:  hypertension; left ear hearing loss; laceration, left hand; laceration, upper lip; tinea versicolor, chest; and cyst, chest.  

By a May 2006 decision of a Decision Review Officer (DRO), the disability rating assigned to the Veteran's hypertension was increased to 10 percent, effective March 17, 2005.  

Because the assigned evaluations of the Veteran's service-connected disabilities do not represent the maximum ratings available, the Veteran's claims remain in appellate status.  See AB v. Brown, 6 Vet. App. 35 (1993).  

In August 2010, this case was remanded for additional development.  In that decision, the Board noted that the issue of entitlement to vocational rehabilitation benefits had been raised by the record, specifically, the Veteran's November 2004 claim.  However, the issue had not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board found that it did not have jurisdiction over it, and it was referred to the AOJ for appropriate action.  

Here, the Board notes, because the Veteran's new and material evidence claims were previously denied and had become final, the Board is required to consider the issue of finality prior to any consideration on the merits. 38 U.S.C.A. §§ 7104(b), 5108 (West 2002); see Barnett v. Brown, 8 Vet. App. 1 (1995).  The Board has a legal duty to address the issue of whether new and material evidence has been submitted to reopen a claim, regardless of RO's actions.  Id. at 4.  

The Board notes that, in addition to the Veteran's claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process.  The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the appellant's claim based upon all relevant evidence.  

The reopened issue of entitlement to service connection for a vision disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.



FINDINGS OF FACT

1.  In a June 1998 decision, the RO denied entitlement to service connection for vision loss.  The Veteran did not file a timely appeal with respect to this decision and it became final.

2.  Evidence received since the June 1998 RO decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for vision loss.  

3.  In a June 1998 decision, the RO denied entitlement to service connection for right ear hearing loss.  The Veteran did not file a timely appeal with respect to this decision and it became final.

4.  The evidence received since the June 1998 RO decision, by itself or in connection with previously considered evidence, does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim of entitlement to service connection for right ear hearing loss.

5.  Prior to March 17, 2005, the Veteran's hypertension was manifested by diastolic pressure of predominantly 100 or more.

6.  On and after March 17, 2005, the Veteran's hypertension has not been manifested by readings of diastolic blood pressure of predominantly 110 or more, or systolic blood pressure of predominantly 200 or more.

7.  The Veteran's left ear hearing loss was manifested by no more than level I hearing in the right ear and no more than Level I impairment in the left ear.   

8.  The service-connected residuals of a left hand laceration was not productive of a scar that is deep, causes limited motion; covers an area 144 square inches or greater; is unstable; results in limitation of function; or is tender on palpation. 

9.  The service-connected residuals of upper lip laceration was not productive of a scar that is deep, causes limited motion; covers an area 144 square inches or greater; is unstable; results in limitation of function; is tender on palpation; or productive of disfigurement of the head, face, or neck.

10.  The Veteran's service-connected tinea versicolor did not cover more than 5 percent of the entire body or exposed areas, and the Veteran has not been treated with systemic corticosteroids or other immunosuppressive drugs for any duration during a 12-month period.

11.  The Veteran's service-connected chest cyst was not productive of a scar that is deep, causes limited motion; covers an area 144 square inches or greater; is unstable; results in limitation of function; or is tender on palpation. 


CONCLUSIONS OF LAW

1.  The June 1998 rating decision which denied service connection for vision loss is final.  38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. § 3.104, 20.302, 20.1103 (1997).

2.  The evidence received subsequent to the June 1998 rating decision is new and material; and the claim for service connection for vision loss is reopened.  38 U.S.C.A. §§ 5103, 5103A, 5107, 5108 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.303, 20.1105 (2012).

3.  The June 1998 RO decision, that denied entitlement to service connection for right ear hearing loss is a final decision.  38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. § 3.104, 20.302, 20.1103 (1997).

4.  The evidence received subsequent to the June 1998 RO decision is new but not material, and the request to reopen the Veteran's claim of entitlement to service connection for right ear hearing loss is denied.  38 U.S.C.A. §§ 5103, 5103A, 5107, 5108 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 20.1103 (2012).

5.  Resolving doubt in the Veteran's favor, the criteria for a disability rating of 10 percent prior to March 17, 2005 for service-connected hypertension, have been met.  38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.159, 3.321, 4.3, 4.7, 4.104, Diagnostic Code 7101 (2012).

6.  The criteria for a rating in excess of 10 percent on and after March 17, 2005 for  service-connected hypertension have not been met.  38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.159, 3.321, 4.3, 4.7, 4.104, Diagnostic Code 7101 (2012).

7.  The criteria for a compensable rating for left ear hearing loss have not been met.  38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.85, Diagnostic Code 6100, and Tables VI, VII (2012).

8.  The criteria for entitlement to a compensable rating for residuals of a left hand laceration have not been met.  38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1, 4.3, 4.118, Diagnostic Code 7805 (prior to October 23, 2008). 

9.  The criteria for entitlement to a compensable rating for residuals of an upper lip laceration have not been met.  38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1, 4.3, 4.118, Diagnostic Code 7805 (prior to October 23, 2008).

10.  The criteria for a compensable rating for tinea versicolor have not been met.  38 C.F.R. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.21, 4.118, Diagnostic Code 7806 (2012).

11.  The criteria for a compensable rating for  cyst of the chest have not been met. 38 C.F.R. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.118, Diagnostic Codes 7801 to 7805 (prior to October 23, 2008), Diagnostic Code 7819 (2012).


REASONS AND BAS  ES FOR FINDINGS AND CONCLUSIONS

I.  VCAA.

VA will make reasonable efforts to notify a claimant of the relevant evidence necessary to substantiate a claim for benefits under laws administered by VA.  VA will also assist a claimant in obtaining that evidence.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.

With respect to the Veteran's claims, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.  Letters dated in November 2004 and November 2006 satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The letters notified the Veteran of the evidence and information necessary to substantiate his claims and informed the Veteran of his and VA's respective responsibilities in obtaining that evidence.  

In addition to the foregoing, the Board observes that most of the Veteran's service treatment records, his VA and private medical records, and his Social Security Administration disability records, have been obtained.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Veteran has also been provided with VA examinations in connection with his increased rating claims.  There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file.  

In this regard, the Board notes that a 1983 service record indicates that a portion of the Veteran's service treatment records prior to April 1983 have been lost.  In cases such as these, where the STRs and/or service personnel records are unavailable, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule.  O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Cromer v. Nicholson, 19 Vet. App. 215 (2005).            

In terms of the Veteran's new and material claims, the Board observes that the November 2004 letter specifically notified the Veteran that his claims had previously been denied on the basis that no hearing loss was shown in the evidence and that vision was shown to be within normal limits.  As such, the letter stated that the Veteran needed to submit new and material evidence in support of his claims that related to these facts.  The RO explained that new evidence was evidence submitted to the RO for the first time; and material evidence was existing evidence that pertained to the Veteran's previous denial of service connection.  The RO also informed the Veteran that new and material evidence must raise a reasonable possibility to substantiate the claims.  Kent v. Nicholson, 20 Vet App. 1 (2006).  The November 2004 letter was sent prior to the initial adjudication of the Veteran's claims.  But even if it had been sent after the initial adjudication, the Board finds that a belated notice would not be prejudicial to him since the Veteran was provided adequate notice, his claims were readjudicated, and the Veteran was provided a Supplemental Statement of the Case explaining the readjudication of his claims.  Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) [Mayfield III].

The Board acknowledges that the Veteran has not been afforded a VA examination specifically in connection with his new and material evidence claims.  With respect to these claims, however, unless new and material evidence is submitted, the duty to assist an appellant does not include a VA examination. 38 C.F.R. § 3.159(c)(4)(iii).  

The Board concludes, after reviewing all evidence of record that the preponderance of the evidence is against the Veteran's claims adjudicated herein.  As such, any questions as to the appropriate disability rating or effective date to be assigned to the claims are rendered moot; and no further notice is needed.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Since there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless and will proceed with the adjudication of the Veteran's claims.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005).

II.  New and material evidence claims.

In a June 1998 decision, the RO, in pertinent part, denied entitlement to service connection for vision loss and right ear hearing loss.  The Veteran did not file a timely appeal with respect to this decision and it became final.  The RO in June 1998 found that the Veteran did not have right ear hearing loss for VA purposes,  that the Veteran's pre-existing deviation of the eyes was not aggravated by service, and that the Veteran's vision was within normal limits.

The evidence that has been added to the Veteran's claims file since the June 1998 decision consists of private and VA treatment records, Social Security Administration disability records, and statements of the Veteran in connection with the claims.  The medical evidence indicates that the Veteran has continued to be treated for his vision disability.  An outpatient treatment noted dated in June 2007 indicates that the Veteran had a long history of strabismus as a child and that he reported periodic diplopia.  He was diagnosed with strabismus and amblyopia.  An eye examination dated in the same month yielded diagnoses of strabismus, constant, alternating exotropia and hypertropia, and intermittent diplopia especially when OD was in primary gaze.  Images were indicated to be disparate.  He was indicated to have amblyopia OS, early macular degeneration OD, presbyopia, and asymmetric optic nerve cupping.  Another June 2007 treatment note indicated exotropia x birth OS.  General assessments in the treatment reports indicate that the Veteran had a history of diplopia/strabismus since childhood and that this made reading difficult in that he sees double.  In addition, a December 2004 private treatment note indicated that the Veteran had a constant left eye exotropia and occasional diplopia.  The physician indicated that this condition would make driving inadvisable due to the intermittent double vision and very poor depth perception.

With respect to right ear hearing loss, the medical evidence since June 1998 consists primarily of a VA examinations dated in March 2005 and January 2011.  Neither examination indicated that the Veteran had hearing loss for VA purposes.  For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  See also Palczewski v. Nicholson, 21 Vet. App.  174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes).  The March 2005 examination showed scores of 10, 10, 15, 25, and 30 for the frequencies of 500, 1000, 2000, 3000, 4000 Hertz, respectively, for the right ear, and also indicated a speech recognition score of 96%.  The January 2011 examination showed scores of 5, 5, 10, 20, and 25 for the frequencies of 500, 1000, 2000, 3000, 4000 Hertz, respectively, for the right ear, and also indicated a speech recognition score of 96%.  The Veteran's outpatient records indicate that the Veteran had hearing loss diagnosed in the military.  The Veteran indicated that he had a hearing test and was told it was ok.  There are no additional test results contained in the Veteran's outpatient records. 

As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  The Board observes that a regulatory change with respect to new and material evidence claims has been made which applies prospectively to all claims submitted on or after August 29, 2001.  See 66 Fed. Reg. 45,620-30 (Aug. 29, 2001) [codified at 38 C.F.R. § 3.156(a)].  Because the Veteran filed his claim to reopen after this date, the new version of the law is applicable in this case.  

Under the revised regulation of 38 C.F.R. § 3.156(a), new evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  

When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).  In order for the evidence to be sufficient to reopen a previously denied claim, the evidence must be both new and material.  If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened.  Smith v. West, 12 Vet. App. 312 (1999).  If it is determined that new and material evidence has been submitted, the claim must be reopened.  The Board may then proceed to the merits of the claim on the basis of all of the evidence of record.

In determining whether new and material evidence has been received to reopen a claim, there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim.  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination.  Id. at 118.  Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance.  Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). 

With respect to the vision claim, the evidence that has been added to the Veteran's claims file since the June 1998 RO decision is new in that it had not previously been submitted.  These records indicate current diagnoses related to the Veteran's eye conditions and also indicate that he has had some of these conditions since childhood and that they affect his reading and driving.  It is noted once again that the credibility of this evidence is presumed for the limited purpose of reopening the claim.  Accordingly, the Board finds that because this evidence addresses elements of the Veteran's claim that were not present in June 1998, it is considered to be material.  This new evidence, when considered by itself or in conjunction with the evidence previously of record, relates to an unestablished fact necessary to substantiate the Veteran's claim and is not cumulative or redundant in nature.  Therefore, the evidence is considered to be both new and material and the claim is reopened.  38 C.F.R. § 3.156(a). 

With respect to the Veteran's right ear hearing loss claim, the evidence associated with the claims file since the June 1998 RO decision is new evidence, in that it was not previously physically of record at the time of that decision.  However, the evidence is not "material evidence" since it basically reiterates the Veteran's prior contentions already of record.  This evidence does not indicate a current diagnosis of right ear hearing loss for VA purposes, nor is there any evidence that hearing loss is the result of the Veteran's active military service or aggravation in service.  The evidence therefore does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim.  Without such evidence, there is no reasonable possibility of substantiating the Veteran's claim.  38 C.F.R. § 3.156.  See also Cornele v. Brown, 6 Vet. App. 59, 62 (1993) (medical evidence which merely documents continued diagnosis and treatment of disease, without addressing other crucial matters, such as medical nexus, does not constitute new and material evidence).  

The Board notes that the Veteran has contended on his own behalf that he has hearing loss that is related to his military service.  Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise.  Layno v. Brown, 6 Vet.App. 465, 469-70 (1994).  Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination.  Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). 

In the instant case, the Board finds that the question regarding the potential relationship between right ear hearing loss and military service to be complex in nature.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions).  Moreover, the Veteran's contentions regarding a relationship between any hearing loss disability and his military service is essentially duplicative of the evidence of record at the time of the June 1998 rating decision.  Further, in Moray v. Brown, 5 Vet. App. 211 (1993), the Court noted that lay persons are not competent to offer medical opinions or diagnoses and that such evidence does not provide a basis on which to reopen a claim of service connection.

Therefore, the Board finds that the evidence added to the record since June 1998 is cumulative of the evidence previously considered by the RO at that time and does not relate to an unestablished fact necessary to substantiate the claim and, therefore, does not raise a reasonable possibility of substantiating the claim of right ear hearing loss.  38 C.F.R. § 3.156.  For these reasons, the Board finds the new evidence of record is not material to the Veteran's claim of entitlement to service connection for right ear hearing loss.  As such, the Veteran's claim is not reopened and the appeal is denied.

III.  Increased rating claims.

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  See 38 C.F.R. § 4.3.  The Veteran's entire history is reviewed when making disability evaluations.  See 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995).  

Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, where the question for consideration is the propriety of the initial evaluation assigned after the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged ratings" is required.  See Fenderson v. Brown, 12 Vet. App. at 126.  In this regard, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

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.  However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed.  See 38 C.F.R. § 4.14.  A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity."  Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155).  This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14.  However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes.  See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993).

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as the Veteran's relevant medical history, the current diagnosis, and demonstrated symptomatology.  Any change in diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).  Where a Veteran has been diagnosed as having a specific condition and the diagnosed condition is not listed in the Ratings Schedule, the diagnosed condition will be evaluated by analogy to closely-related diseases or injuries in which not only the functions affected, but the anatomical localizations and symptomatology, are closely analogous.  38 C.F.R. § 4.20.

A.  Hypertension.

In this case, the Veteran seeks a higher evaluation for his service-connected hypertension.  He is evaluated as noncompensable prior to March 17, 2005 and 10 percent disabling thereafter.

Diagnostic Code 7101 governs ratings for hypertensive vascular disease (hypertension and isolated systolic hypertension) and rates as follows: 

60%  - Diastolic pressure predominantly 130 or more; 
40%  - Diastolic pressure predominantly 120 or more; 
20%  - Diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more; 
10%  - Diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 

Note (1): Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days.  For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 

In this regard, the Board notes that, during the pendency of the appeal, the diagnostic code regarding hypertension was amended.  71 Fed. Reg. 52457-60 (Sept. 6, 2006).  Effective October 6, 2006, a note was added after the rating criteria of Diagnostic Code 7101 concerning separate evaluations of hypertension and other heart diseases.  Because the Veteran is not service connected for any other heart disease, the change to the regulation is inapplicable to the appeal at hand. 

The medical evidence in this case consists of VA and private medical records and VA examinations dated in March 2005 and December 2010.

A careful examination of the Veteran's claims file, including the VA examination reports, reveals numerous blood pressure readings prior to March 17, 2005.  These include the March 2005 VA examination results that show blood pressure readings of 138/100, 128/100, 150/100, 130/90, and 146/100.  Outpatient treatment records also show readings of 145/103 and 152/97 in an undated reported received in December 2004.  Other readings dated in April 2004 (130/108, 158/102, 170/98, 178/88, 128/84, 170/114, and 128/94) predate the Veteran's claim for increase submitted in October 2004.  His treatment reports also include a March 17, 2005 note that indicates that his blood pressure on that date was 179/89 and that prior to that date the Veteran had not been taking blood pressure medication.  He had been prescribed medication in the past, but was not then taking any at that time.  The record indicates that as of March 18, 2005, the Veteran was again prescribed medication for his hypertension.

On and after March 17, 2005, the medical evidence indicates numerous blood pressure readings in the Veteran's outpatient treatment reports.  The medical evidence shows diastolic pressure raging from 76 to 110, with most readings coming in at 90 or 100.  Systolic pressure was noted to range as high a 180, but no more, with most readings in the 110s to 150s.  In the December 2010 VA examination, the Veteran was recorded to have blood pressure readings of 140/100, 140/98, and 140/100.  

Based on the foregoing, and affording the Veteran the benefit of the doubt, the Board finds that a 10 percent evaluation for hypertension prior to March 17, 2005 is warranted by the evidence.  For this period, while there is no evidence that the Veteran was prescribed medication for his hypertension, his diastolic pressure readings were consistently 100 or more for a majority of the readings on file. 

However, on and after march 17, 2005, an evaluation in excess of 10 percent for hypertension is not warranted.  While some of the diastolic pressure readings reached 110, the vast majority of these readings were in the 90 to 100 range and all of the systolic pressure readings fell under 200.  It therefore cannot be stated that the Veteran's diastolic pressure was predominantly 110 or more, or that the systolic pressure was predominantly 200 or more on and after March 17, 2005.

The Board has considered whether additional staged ratings under Hart, supra, are appropriate for the Veteran's service-connected hypertension; however, the Board finds that his symptomatology was stable throughout the appeal periods.  Therefore, assigning additional staged ratings for such disability is not warranted. 

As the criteria for an evaluation in excess of 10 percent for hypertension have not been met, the preponderance of the evidence is against the claim for a higher evaluation, and the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b).

B.  Left ear hearing loss.

The Veteran's service-connected left ear hearing loss is currently assigned a noncompensable rating under 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100.  The Veteran contends that his hearing disability is worse than the currently assigned evaluation and, therefore, he is entitled to a compensable rating for such disability. 

Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second.  To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness.  38 C.F.R. § 4.85(h), Table VI.  In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met.  The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann, supra.

The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests.  These results are then charted on Table VI, Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule.  38 C.F.R. § 4.85.  The percentage disability evaluation is found from Table VII (38 C.F.R. § 4.85) by intersecting the horizontal column appropriate for the numeric designation for the ear having the better hearing acuity and the vertical row appropriate to the numeric designation level for the ear having the poorer hearing acuity.  

If impairment is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 

Effective December 6, 2002, 38 C.F.R. § 3.383 was amended as to evaluating hearing impairment when hearing loss in one ear is service-connected and hearing loss in the other ear is not.  See 69 Fed. Reg. 48,148 (2004) [codified at 38 C.F.R. § 3.383].  Under the former provisions, in situations where service connection has been granted only for defective hearing involving one ear, and the Veteran does not have total deafness in both ears, the hearing acuity of the non-service-connected ear is considered to be normal.  In such situations, a maximum 10 percent evaluation is assignable where hearing in the service-connected ear is at level X or XI.  See 38 C.F.R. §§ 3.383, 4.85(f), (h) (2004). 

Under the current version of 38 C.F.R. § 3.383, compensation is payable for hearing loss in both ears as if both disabilities were service-connected if (1) hearing impairment in the service-connected ear is compensable to a degree of 10 percent or more; (2) hearing impairment in the non-service-connected ear, as measured by audio thresholds or speech discrimination scores, meets the criteria to be considered a disability under 38 C.F.R. § 3.385; and (3) the non-service-connected disability is not the result of the Veteran's own willful misconduct.  

In this regard, the Board notes that, for the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385. 

The current criteria of 38 C.F.R. § 3.383 is clearly more favorable to the Veteran's claim.  The Board will apply only the current criteria of 38 C.F.R. § 3.383 to the Veteran's hearing loss claim for all times following December 6, 2002.  As the Veteran filed his current claim after December 2002, the current regulation applies.

Under 38 C.F.R. § 4.86(a), when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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.  Each ear will be evaluated separately.

Under 38 C.F.R. § 4.86(b), when the pure tone threshold is 30 decibels or less at 1,000 hertz, and 70 decibels or more at 2,000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results is the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately. 

Finally, the Board notes that the Board may interpret graphical representations of audiometric data and convert it to numerical data in its role as a fact finder as long as the graphical representations are clear.  See Kelly v. Brown, 7 Vet. App. 471 (1995); Hall v. Nicholson, 21 Vet. App. 80 (2006) (unpublished) (stating that the U.S. Court of Veterans Claims (Court) held in Kelly that the Court could not interpret graphical data from a hearing evaluation and convert it to numerical data because this involved fact finding, but there was no indication in the Court's decision that the Board is precluded from doing so as a fact finder).

The medical evidence in this case consists primarily of VA examination reports dated in March 2005 and January 2011.

At the March 2005 audiological evaluation, the Veteran was found to have pure tone thresholds, in decibels, as follows:





HERTZ



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

Pure tone thresholds for frequencies 1000 through 4000 Hertz averaged a 20 decibel loss in the right ear and a 20 decibel loss in the left ear.  The audiologist indicated that the Veteran had 96 percent speech discrimination in the right ear and 96 percent speech discrimination in the left ear.  These audiometry test results equate to Level I hearing in the right ear and Level I hearing in the left ear, using Table VI.  38 C.F.R. § 4.85.  Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in the right ear and Level I hearing in the left ear results in a noncompensable disability rating.  38 C.F.R. § 4.85.  In addition, the Board notes that the examiner indicated that the Veteran had normal hearing bilaterally with the exception of a slight dip at 30 dB at 4000 Hz, bilaterally, and that, due to good normal hearing sensitivity, the Veteran was not a candidate for hearing aids.  In addition, the Veteran stated that he really did not have a chief complaint regarding his hearing and hadn't noticed any loss of hearing.  Rather, he indicated that he wanted to investigate a closed claim.

In the January 2011 VA examination, the Veteran was found to have pure tone thresholds, in decibels, as follows:






HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
10
20
25
LEFT
10
10
20
20
30

Pure tone thresholds for frequencies 1000 through 4000 Hertz averaged a 15 decibel loss in the right ear and a 20 decibel loss in the left ear.  The audiologist indicated that the Veteran had 96 percent speech discrimination in the right ear and 94 percent speech discrimination in the left ear.  These audiometry test results equate to Level I hearing in the right ear and Level I hearing in the left ear, using Table VI.  38 C.F.R. § 4.85.  Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in the right ear and Level I hearing in the left ear results in a noncompensable disability rating.  38 C.F.R. § 4.85.  

The Veteran's outpatient treatment records do not contain audiometric test results, but do note that hearing loss was diagnosed in the military.  The Veteran reported that he had a hearing test and was told it was ok.

The Board finds that the requirements for a compensable evaluation are not met based on the demonstrated levels of hearing impairment, emphasizing that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  There is no medical evidence of record indicating that the Veteran experiences a higher level of hearing impairment.  

The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran's service-connected disability of left ear hearing loss; however, the Board finds that his symptomatology has been stable throughout the appeal period.  Therefore, assigning staged ratings for such disability is not warranted. 

As for extraschedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule.  Thun v. Peake, 22 Vet. App. 111 (2008).  The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render his schedular rating inadequate.  The Veteran's hearing loss has been evaluated under the applicable diagnostic code that has specifically contemplated the level of occupational impairment caused by the disability.  

The Board has considered the Court's holding in Martinak v. Nicholson, 21 Vet. App. 447 (2007).  In that decision, the Court noted that, unlike the rating schedule for hearing loss, the extraschedular provisions did not rely exclusively on objective test results to determine whether referral for an extraschedular rating was warranted.  The Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  Martinak, 21 Vet. App. at 455.  

Here, the Board notes that the March 2005 and January 2011 VA examiners did not indicate that that the Veteran had any hearing loss for VA purposes, based on the recorded test results.  And the March 2005 examiner noted that the Veteran himself indicated that he really did not have a chief complaint regarding his hearing and hadn't noticed any loss of hearing.  Rather, he indicated that he wanted to investigate a closed claim.  Due to good normal hearing sensitivity, the Veteran was found to not be a candidate for hearing aids.  Therefore, while the Board notes that the examiners did not expressly describe the functional effects caused by a hearing disability, it is noted that in both examinations no hearing disability for VA purposes existed.  Any omission on the part of the VA examiners in this case is therefore harmless to the Veteran.  

Based on the totality of the evidence, the Board finds that the Veteran's left ear hearing loss, such as it is, has not caused marked interference with employment, and the evidence does not reflect frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable.  Therefore, referral for assignment of an extra- schedular evaluation in this case is not in order.  Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). 

As the criteria for a compensable evaluation for left ear hearing loss have not been met, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b).

C.  Residuals of lacerations to the left hand and upper lip.

Next the Veteran contends that he should be awarded a compensable evaluation for his service-connected lacerations of the left hand and upper lip.  These disabilities are currently evaluated as noncompensable under Diagnostic Code 7805.

In this regard, the Board notes that the Diagnostic Codes applicable to scars were amended, effective October 23, 2008.  See 73 Fed. Reg. 54,708 (2008) (presently codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (October 23, 2008).  The summary in Federal Register notes that the applicability date of the amendment is for all applications for benefits received by VA on and after October 23, 2008.  As the Veteran's claim was filed prior to this date, the revised Codes do not apply in this case.  However, a Veteran whom VA rated before such date under diagnostic codes 7800, 7801, 7802, 7803, 7804, or 7805 may request review under these clarified criteria irrespective of whether his or her disability has worsened since the last review.

Diagnostic Code 7800, in effect prior to October 23, 2008, provided ratings for disfigurement of the head, face, or neck.  Note (1) to Diagnostic Code 7800 provides that the 8 characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118, are: 

Scar is 5 or more inches (13 or more cm.) in length.
Scar is at least one-quarter inch (0.6 cm.) wide at the widest part.
Surface contour of scar is elevated or depressed on palpation.
Scar is adherent to underlying tissue.
Skin is hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.).
Skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.).
Underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.).
Skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.).

Diagnostic Code 7800 provides that a skin disorder with one characteristic of disfigurement of the head, face, or neck is rated 10 percent disabling.  A skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement, is rated 30 percent disabling.  A skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement, is rated 50 percent disabling.  A skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement, is rated 80 percent disabling. 

Note (2) to Diagnostic Code 7800 provides that tissue loss of the auricle is to be rated under Diagnostic Code 6207 (loss of auricle), and anatomical loss of the eye under Diagnostic Code 6061 (anatomical loss of both eyes) or Diagnostic Code 6063 (anatomical loss of one eye), as appropriate.  Note (3) provides that unretouched color photographs are to be taken into consideration when rating under these criteria.  38 C.F.R. § 4.118.

Under Diagnostic Code 7801, in effect prior to October 23, 2008, scars, other than on the head, face, or neck, that are deep or that cause limited motion are assigned a 40 percent evaluation for an area or areas exceeding 144 square inches; a 30 percent evaluation for an area or areas exceeding 72 square inches; a 20 percent evaluation for an area or areas exceeding 12 square inches; and a 10 percent evaluation for an area or areas exceeding 6 square inches.  Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, are separately rated and combined in accordance with 38 C.F.R. § 4.25.  Id. at Note (1).  A deep scar is one associated with underlying soft tissue damage.  Id. at Note (2).

Under Diagnostic Code 7802, in effect prior to October 23, 2008, scars, other than on the head, face, or neck, that are superficial and that do not cause limited motion are assigned a 10 percent evaluation for an area or areas of 144 square inches or greater.  Scars that are in widely separated areas are separately rated and combined in accordance with § 4.25.  Id. at Note (1).  A superficial scar is one not associated with underlying soft tissue damage.  Id. at Note (2).

Under Diagnostic Code 7803, in effect prior to October 23, 2008, superficial and unstable scars are assigned a 10 percent evaluation.  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Id. at Note (1).  A superficial scar is one not associated with underlying soft tissue damage.  Id. at Note (2).

Under Diagnostic Code 7804, in effect prior to October 23, 2008, scars that are superficial and painful on examination are assigned 10 percent evaluation.  A superficial scar as one not associated with underlying soft tissue damage.  Id. at Note (1).   A 10 percent evaluation will be assigned for a scar on the tip of a finger or toe even if amputation of the part would not warrant a compensable evaluation.  Id. at Note (2).

Other scars are rated on limitation of function of the affected part.  38 C.F.R. § 4.118, Diagnostic Code 7805 (2008).

The medical evidence in this case consists primarily of VA examinations dated in February 2005 and December 2010.

The February 2005 examiner noted that the Veteran was requesting increase for his service-connected lacerations of the upper lip and left had.  The examiner indicated that the Veteran's claims file had not been reviewed in connection with the examination and report.  The Veteran reportedly injured his lip in 1986 when he was hit in the mouth with someone's fist and required stitches.  He injured his left hand in 1989 while cleaning a basin.  He also had stitches for this.  The Veteran reported that the scar in his lip has some sensitivity to hot and cold substances, but no other symptoms.  The Veteran reported some slight tenderness in the left hand.  On examination, the upper lip scar measured approximately 0.5 cm.  The examiner stated that it was not really noticeable.  There was also a scar on the lower lip that appeared to be about 1 cm.  The scar on the left hand was 1.5 cm with no known tenderness on examination.  Neither of the scars had any adherence to underlying tissue or pain and they appeared to be of normal texture with normal stability.  There was no elevation or depression, and they were all superficial scars.  There was also no inflammation, edema or keloid formation and no unusual coloring, no induration or inflexibility, no limitation of motion because of the scars, and no disfigurement noted because of the scars on the lip.  The Veteran was diagnosed with well-healed scars on the upper lip, lower lip, and left hand, with no residual functional loss or interference.

The Veteran was again examined by VA in December 2010.  The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report.  The Veteran was noted to have a very faint inside his upper lip on the left side, well-healed with no keloid formation.  There was no skin breakdown over the scar and no reports of pain.  The scar was indicated to measure 0.1 cm by 1.0 cm, and was indicated to be superficial with no inflammation, edema, keloid formation, abnormal texture, hypo or hyper pigmentation, or underlying tissue loss.  The scar was no indurated or inflexible, the contour was not elevated or depressed, and it was not adherent to underlying tissue.  There were no other disabling effects.  The Veteran was diagnosed with left upper inside aspect of lip feint scar noted, very superficial.  The Veteran was also noted to have a left hand ventral small normal pigmented scar adjacent to the third MCP joint.  There was no skin breakdown over the scar and no reports of pain.  The scar was indicated to measure 0.5 cm by 0.5 cm, and was indicated to be not painful, superficial with no sign of skin breakdown, and no inflammation, edema, keloid formation, and no other disabling effects.  The Veteran was diagnosed with left hand dorsal aspect superficial scar with no hand dysfunction associated with the scar.  

The Veteran's outpatient treatment records were also reviewed, but there is no indication that the Veteran was receiving ongoing treatment with respect to the scars at issue. 

Based on the foregoing, the Board finds that compensable evaluations for lacerations of the upper lip and left hand are not warranted in this case.   

A compensable evaluation is not warranted under Diagnostic Codes 7801, 7802, or 7803, where medical evidence of record does not establish that the Veteran's scar is deep, causes limited motion; covers an area 144 square inches or greater; or is a scar that is unstable.  See 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, and 7803 (2008).   And the scars are not shown to result in limitation of function.  See 38 C.F.R. § 4.118, Diagnostic Code 7805 (2008).  In addition, a compensable evaluation is not warranted under Diagnostic Code 7804, as the Veteran's scars were not shown to be tender on palpation by either VA examiner.  See 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008).  Finally, the Board finds that the Veteran's upper lip scar does not warrant a compensable evaluation under Diagnostic Code 7800, as the scar does not have any of the 8 characteristics of disfigurement outlined in Note 1.

Additionally, in view of the holding in Hart, and, based upon the record, the Board finds that staged ratings are not warranted in this case, as the Veteran's disability level has remained relatively constant throughout the course of the appeal.

As the criteria for a compensable evaluation for lacerations of the upper lip and left hand have not been met, the preponderance of the evidence is against the claims, and the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b).

D.  Tinea Versicolor.

With respect to the Veteran's diagnosed tinea versicolor, the Veteran is currently assigned a noncompensable rating under Diagnostic Code 7806.  

Initially, it should be noted that VA regulations for evaluating disabilities of the skin were revised effective August 30, 2002.  See 67 Fed. Reg. 49590 - 49599 (July 31, 2002); 67 Fed. Reg. 58448 -58449 (Sept. 16, 2002).  The current claim for an increased evaluation was received in October 2004.  Thus, the revised regulations are applicable to this claim.  Parenthetically, the Board also notes that VA amended the Schedule for Rating Disabilities by revising that portion of the Schedule that addresses the skin, so that it more clearly reflects VA's policies concerning the evaluation of scars, and specifically, 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805; however, the amendment is effective for claims filed on and after October 23, 2008); and the Board notes that the disorder under consideration is rated under Diagnostic Code 7806.  See 73 Fed. Reg. 54708-54712 (Sept. 23, 2008).  Accordingly, the regulations as amended in 2008 are inapplicable to the Veteran's claim. 

The Veteran is service-connected for tinea versicolor.  The RO rated this condition, by analogy, under DC 7806, which contemplates disability due to dermatitis or eczema.  38 C.F.R. § 4.118, Diagnostic Code 7806.  Given the nature of the Veteran's disability, the Board finds that the rating criteria applied by the RO are appropriate.  Pernorio v. Derwinski, 2 Vet. App. 625 (1992); 38 C.F.R. § 4.20, 4.21. The Board can identify no more appropriate diagnostic code and the Veteran has not identified one.  Butts v. Brown, 5 Vet. App. 532, 538 (1993).  Accordingly, the Board will proceed with an analysis of the Veteran's disability under that diagnostic code. 

Under Diagnostic Code 7806, a 0 percent rating will be assigned where less than 5 percent of the entire body, or less than 5 percent of exposed areas, are affected; and no more than topical therapy was required during the a 12-month period.  38 C.F.R. § 4.118, Diagnostic Code 7816. 

A 10 percent rating is assigned when the condition affects at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent of exposed areas; or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of less than six weeks during the past 12-month period.  Id. 

A 30 percent rating is assigned when the condition affects 20 to 40 percent of the entire body, or 20 to 40 percent of exposed areas; or systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of six weeks or more, but not constantly, during the past 12-month period.  Id. 

A 60 percent rating is assigned when the condition affects more than 40 percent of the entire body, or more than 40 percent of exposed areas; or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required during the past 12-month period.  Id. 

The medical evidence in this case consists primarily of VA examinations dated in January 2005 and December 2010.

The January 2005 examiner noted that the Veteran had been diagnosed with tinea versicolor in service in about 1994.  The examiner stated that the Veteran had not noticed any recurrence of it since then, nor had he had any symptoms.  On examination, the Veteran did not show any recurrence of tinea versicolor.  The Veteran was diagnosed with past history of tinea versicolor.

The Veteran was also afforded a VA examination dated in December 2010.  The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report.  The examiner indicated that the Veteran's condition was intermittent with symptoms of itching skin with discoloration under both arm pits or axillary regions.  No systemic symptoms were indicated and there was no skin disease treatment in the past 12 months.  The examiner found that the condition affected less than 5 percent of both exposed areas and total body area.  Tinea infection was indicated B/L axillary regions.  The Veteran was diagnosed with tinea versicolor and eczema.

The Veteran's treatment records do not indicate current ongoing treatment for tinea versicolor or other skin condition.  A past history is noted. 

Based on the evidence of record, the Board finds that a compensable rating for tinea versicolor is not warranted.  As noted above, a compensable rating requires systemic treatment or an affected area of at least 5 percent of the entire body or exposed areas.  The 2005 examination found no active disease at that time and the December 2010 examination found that less than 5 percent of both the exposed and entire body was affected.  And there is no indication of systemic treatment such as corticosteroids or immunosuppressive drugs.  Consequently, the criteria for a compensable rating under Diagnostic Code 7806 have not been met.

Additionally, in view of the holding in Hart, and, based upon the record, the Board finds that staged ratings are not warranted in this case, as the Veteran's disability level has remained relatively constant throughout the course of the appeal.

As the criteria for a compensable evaluation for tinea versicolor have not been met, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b).

E.  Residuals of chest cyst.

The Veteran's service-connected chest cyst is rated by analogy under Diagnostic Code 7819.  Diagnostic Code 7819 provides that benign skin neoplasms are rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805) or impairment of function. 

In this regard, the Board notes that the Diagnostic Codes applicable to scars were amended, effective October 23, 2008.  See 73 Fed. Reg. 54,708 (2008) (presently codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (October 23, 2008).  The summary in Federal Register notes that the applicability date of the amendment is for all applications for benefits received by VA on and after October 23, 2008.  As the Veteran's claim was filed prior to this date, the revised Codes do not apply in this case.  However, a Veteran whom VA rated before such date under diagnostic codes 7800, 7801, 7802, 7803, 7804, or 7805 may request review under these clarified criteria irrespective of whether his or her disability has worsened since the last review.

Diagnostic Code 7800, in effect prior to October 23, 2008, provides ratings for disfigurement of the head, face, or neck.  Note (1) to Diagnostic Code 7800 provides that the 8 characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118, are: 

Scar is 5 or more inches (13 or more cm.) in length.
Scar is at least one-quarter inch (0.6 cm.) wide at the widest part.
Surface contour of scar is elevated or depressed on palpation.
Scar is adherent to underlying tissue.
Skin is hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.).
Skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.).
Underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.).
Skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.).

Diagnostic Code 7800 provides that a skin disorder with one characteristic of disfigurement of the head, face, or neck is rated 10 percent disabling.  A skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement, is rated 30 percent disabling.  A skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement, is rated 50 percent disabling.  A skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement, is rated 80 percent disabling. 

Note (2) to Diagnostic Code 7800 provides that tissue loss of the auricle is to be rated under Diagnostic Code 6207 (loss of auricle), and anatomical loss of the eye under Diagnostic Code 6061 (anatomical loss of both eyes) or Diagnostic Code 6063 (anatomical loss of one eye), as appropriate.  Note (3) provides that unretouched color photographs are to be taken into consideration when rating under these criteria.  38 C.F.R. § 4.118.

Under Diagnostic Code 7801, in effect prior to October 23, 2008, scars, other than on the head, face, or neck, that are deep or that cause limited motion are assigned a 40 percent evaluation for an area or areas exceeding 144 square inches; a 30 percent evaluation for an area or areas exceeding 72 square inches; a 20 percent evaluation for an area or areas exceeding 12 square inches; and a 10 percent evaluation for an area or areas exceeding 6 square inches.  Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, are separately rated and combined in accordance with 38 C.F.R. § 4.25.  Id. at Note (1).  A deep scar is one associated with underlying soft tissue damage.  Id. at Note (2).

Under Diagnostic Code 7802, in effect prior to October 23, 2008, scars, other than on the head, face, or neck, that are superficial and that do not cause limited motion are assigned a 10 percent evaluation for an area or areas of 144 square inches or greater.  Scars that are in widely separated areas are separately rated and combined in accordance with § 4.25.  Id. at Note (1).  A superficial scar is one not associated with underlying soft tissue damage.  Id. at Note (2).

Under Diagnostic Code 7803, in effect prior to October 23, 2008, superficial and unstable scars are assigned a 10 percent evaluation.  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Id. at Note (1).  A superficial scar is one not associated with underlying soft tissue damage.  Id. at Note (2).

Under Diagnostic Code 7804, in effect prior to October 23, 2008, scars that are superficial and painful on examination are assigned 10 percent evaluation.  A superficial scar as one not associated with underlying soft tissue damage.  Id. at Note (1).   A 10 percent evaluation will be assigned for a scar on the tip of a finger or toe even if amputation of the part would not warrant a compensable evaluation.  Id. at Note (2).

Other scars are rated on limitation of function of the affected part.  38 C.F.R. § 4.118, Diagnostic Code 7805 (2008).

The medical evidence in this case consists primarily of VA examinations dated in January 2005 and December 2010.

The January 2005 examiner noted that the Veteran had a benign cyst removed from the upper right anterior chest wall in 1991.  The Veteran reported that he had no problems with the area of the cyst removal except that occasionally in the summertime there would be some itching in the area around the scar.  The examiner indicated that the Veteran had no disability from it.  On physical examination there was a 1 1/2 inch surgical scar just to the right of the sternum at about the level of the second rib.  It was well-healed and showed no evidence of any problems at all.  It was not tender or inflamed, and there was no recurrence of the cyst.  The Veteran was diagnosed with status post surgical removal of benign cyst, anterior chest wall.

The Veteran was also afforded a VA examination dated in December 2010.  The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report.  The examiner noted that there was a hypopigmented scar in the right upper anterior chest wall adjacent to the sternum.  There was no keloid formation and the scar was well-healed.  There was no skin breakdown over the scar and no reports of pain.  The scar was noted to measure 1.0 inch by 4.0 inches, and was indicated to be superficial with no inflammation, edema, or keloid formation.  The examiner stated that there were no other disabling effects.  The Veteran was diagnosed with anterior chest wall scar with no keloid formation. 

The Veteran's treatment records do not indicate current ongoing treatment for chest wall scar.

Based on the foregoing, the Board finds that a compensable evaluation for residuals of the chest wall cyst is not warranted in this case.   

A compensable evaluation is not warranted under Diagnostic Codes 7801, 7802, or 7803, where medical evidence of record does not establish that the Veteran's scar is deep, causes limited motion; covers an area 144 square inches or greater; or is a scar that is unstable.  See 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, and 7803 (2008).   And the scar is not shown to result in limitation of function.  See 38 C.F.R. § 4.118, Diagnostic Code 7805 (2008).  In addition, a compensable evaluation is not warranted under Diagnostic Code 7804, as the Veteran's scar was not shown to be tender on palpation by either VA examiner.  See 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008).  Finally, the Board finds that Diagnostic Code 7800 is not for application as the scar at issue does not affect the Veteran's head, face, or neck.  

Additionally, in view of the holding in Hart, and, based upon the record, the Board finds that staged ratings are not warranted in this case, as the Veteran's disability level has remained relatively constant throughout the course of the appeal.

As the criteria for a compensable rating for a chest wall cyst have not been met, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b).

F.  Other considerations

The Board notes that the VA examinations of the Veteran were generally conducted with the benefit of reviewing of the Veteran's claims file.  However, even if the claims file had not been available, the Board notes that the Court in Mariano v. Principi, 17 Vet. App. 305, 311-12 (2003), held that scientific tests (range of motion measurements in that case) are not conclusions drawn by a VA examiner that would be affected by review of the claims file.  As a result, the Court concluded that the failure to review the Veteran's claims file did not undermine the objective (range of motion) findings recorded by the VA examiner; these findings were considered valid despite flaws in the record.  Id.  A review of the Veteran's claims file, while desirable, was not necessary to the successful evaluation of the Veteran's claim.  

In addition, with respect to the Veteran's claims, the Board has also considered the statements that his disabilities are worse than evaluated.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through the senses.  Layno, 6 Vet. App. at 470.  He is not, however, competent to identify a specific level of disability for his condition, according to the appropriate diagnostic codes.  See Robinson v. Shinseki, 557 F.3d 1355 (2009).  Such competent evidence concerning the nature and extent of the Veteran's 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) directly address the criteria under which the disabilities are evaluated.

The Board also notes that the record does not establish that the schedular criteria are inadequate to evaluate the Veteran's disabilities so as to warrant assignment of a higher evaluation on an extra-schedular basis.  In this regard, the Board notes that there is no showing that the Veteran's disabilities have resulted in marked interference with employment (beyond that contemplated in the rating criteria).  In addition, there is no showing that the disabilities have necessitated frequent periods of hospitalization, or that they have otherwise rendered impractical the application of the regular schedular standards.  In the absence of evidence of such factors, the Board finds that the criteria for submission for assignment of extra-schedular ratings pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record.  The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Id.

Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).

In exceptional circumstances, where the Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment.  38 C.F.R. § 4.16(b).

In this case, the Veteran does not meet the numerical criteria set forth above, and the Veteran's claims file does not indicate that the Veteran is unemployable due to her service-connected disabilities.  Rather, the December 2010 VA examination indicates that the Veteran is retired, eligible by age or duration of work.  Therefore, further consideration of a TDIU is not warranted at this time. 


ORDER

The claim of entitlement to service connection for a vision disability is reopened, and to this extent only, the appeal is granted.

New and material evidence sufficient to reopen a claim of entitlement to service connection for right ear hearing loss has not been received, and the appeal is denied. 

A disability rating of 10 percent for hypertension prior to March 17, 2005, is granted, subject to  the laws and regulations governing the payment of monetary benefits. 

An evaluation in excess of 10 percent for hypertension on and after March 17, 2005 is denied.

A compensable evaluation for left ear hearing loss is denied.

A compensable disability rating for service-connected laceration, left hand, is denied.

A compensable disability rating for service-connected laceration, upper lip, is denied.

A compensable disability rating for service-connected tinea versicolor, chest, is denied.

A compensable disability rating for service-connected cyst, chest, is denied



REMAND

Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's remaining vision claim so that he is afforded every possible consideration.  VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d).

In this case, the Veteran's service treatment records indicate that the Veteran was diagnosed in service with amblyopia, exanopsia, left eye, and left exotropia with associated hyperdeviation.  These were noted in a December 1989 Medical Board to be EPTE, not service aggravated.  A March 1989 treatment note indicated that the Veteran had a childhood history of left "lazy eye" and patch treatment.  The condition was noted to affect his depth perception.  After the Medical Board, the Veteran continued to seek treatment for his eyes and was noted in a May 1995 Medical History to have congenital diplopia/amblyopia.  The May 1995 Medical Examination Report also noted issues with the Veteran's left eye.  The Veteran's separation examination in April 1997 indicated that the Veteran had left exotropia.

After service, the Veteran was seen in June 1998 and was noted to have a history of exotropia and amblyopia since childhood.  Since childhood he was noted to have fixated his vision intermittently between his right and left eye, primarily using his right eye.  Because of this, the Veteran was noted to be able to see two images at one time some of the time, but the rest of the time will see one image.  On examination the Veteran was noted to have constant left exotropia at 8-16 degrees.  The examiner stated that the Veteran had probably always been able to use one eye at a time due to a large exotropia.  He was noted to have essentially no depth perception and occasional diplopia.  The examiner indicated that the Veteran should not drive due to his condition or operating heavy machinery.  No opinion was offered regarding whether the Veteran's vision disability pre-existed service or was aggravated thereby.

Other treatment records include an outpatient treatment note dated in June 2007 that indicated that the Veteran had a long history of strabismus as a child and that he reported periodic diplopia.  He was diagnosed with strabismus and amblyopia.  An eye examination the same month yielded diagnoses of strabismus, constant, alternating exotropia and hypertropia, and intermittent diplopia especially when OD was in primary gaze.  Images were indicated to be disparate.  He was indicated to have amblyopia OS, early macular degeneration OD, presbyopia, and asymmetric optic nerve cupping.  Another June 2007 treatment note indicated exotropia x birth OS.  General assessments in the treatment reports indicate that the Veteran had a history of diplopia/strabismus since childhood and that this made reading difficult in that he sees double.  In addition, a December 2004 private treatment note indicated that the Veteran had a constant left eye exotropia and occasional diplopia.  The physician indicated that this condition would make driving inadvisable due to the intermittent double vision and very poor depth perception.

Based on the foregoing, the Board finds that this matter must be remanded for a VA examination in connection with the claim.  The examiner should review all evidence of record, to include the prior diagnostic studies and VA examination reports, and should provide a report as to the nature and etiology of any currently diagnosed vision disability.  An opinion should be offered regarding whether any diagnosed disorder is a congenital or developmental defect, or a congenital or hereditary disease, and whether any such condition preexisted or was incurred or aggravated by service.  

In general, service connection may not be granted for congenital or developmental defects, as they are not considered a disease or injury for the purpose of service connection.  See 38 C.F.R. § 3.303(c), 4.9.  However, service connection may be granted for a congenital or hereditary disease, as opposed to a defect, where the disease first manifested during service (incurrence), or where it preexisted service but was worsened beyond its normal progression as a result of service (aggravation).  For VA purposes, a "defect" is defined as a structural or inherent abnormality or condition which is more or less stationary in nature, and is generally incapable of improvement or deterioration.  In contrast, a "disease" is capable of improvement or deterioration.  In addition, service connection may be granted for any additional disability that results where a congenital or developmental defect is subject to, or aggravated by, a superimposed disease or injury.  See VAOPGCPREC 82-90 (July 18, 1990); VAOPGCPREC 67-90 (July 18, 1990).  

Prior to affording the Veteran a VA examination, the RO should associate with the Veteran's claims file records of the Veteran's treatment for his claimed disability.  Here, the Board notes that the Veteran has been treated at the VA.  Updated records from the VA should therefore be associated with the Veteran's claims file.  The Veteran should also be afforded an opportunity to submit additional medical evidence relevant to his claim that may not be associated with the claims file.  

In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  Pursuant to the VCAA, VA must obtain outstanding VA and private records.  See 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c).

Accordingly, the case is REMANDED for the following action:

1.  The RO should take appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers, other than those already associated with the Veteran's claims file, that have treated him since service for his claimed disability.  This should specifically include updated treatment records from VA.  

The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed.  If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing.  The Veteran may submit medical records directly to VA.

2.  After all available treatment records have been associated with the claims file, the Veteran should be afforded a VA examination in connection with his vision claim.  Review of the claims file should be noted in the examination report.  All necessary tests and studies should then be conducted.  The examiner should respond to the following questions:

(a)  Identify any current vision disorders and associated symptomatology.  All lay and medical evidence of record and VA examination reports should be considered.

(b)  If a current vision disability is diagnosed, is such condition considered a congenital or developmental defect, or is it a congenital or hereditary disease?  For VA purposes, a "defect" is defined as a structural or inherent abnormality or condition which is more or less stationary in nature, and is generally incapable of improvement or deterioration.  In contrast, a "disease" is capable of improvement or deterioration.

(c)  If any current vision disability is a congenital or developmental defect, was it subject to, or aggravated by, a superimposed disease or injury during service which resulted in additional disability?  Please identify the additional disability.  Or, was the increase in severity due to the natural progress of the disorder?

(d)  In contrast, if any current vision disability is a congenital or hereditary disease, please state  whether the disease clearly and unmistakably both (i) preexisted the Veteran's entry into active service, and (ii) was not aggravated, beyond the normal progress of the disorder, during or as a result of active service (i.e., that it clearly and unmistakably did not increase or that any increase was clearly and unmistakably due to the natural progress of the disease).  

(e)  If any current vision disability is not congenital or developmental in nature, or if it did not clearly and unmistakably preexist the Veteran's service, is at least as likely as not (probability of 50 percent or more) that any such disorder was incurred in or aggravated by any incident, disease, or injury during service?  

In offering any opinion, the examiner must consider the Veteran's lay statements regarding the incurrence of his claimed disorder and the continuity of symptomatology.  
A complete rationale for all opinions is requested.  If the examiner finds that he or she cannot provide a nexus opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability.

3.  After undertaking any additional development deemed appropriate in addition to that requested above, re-adjudicate the issue remaining on appeal.  If any benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case.

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

The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655, failure to cooperate by attending a requested VA examination may result in an adverse determination.  See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991).

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 Supp. 2012).



______________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs