Citation Nr: 1304569 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 10-08 054 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to a compensable rating for a shell fragment wound scar on the left arm. 2. Entitlement to increased ratings for bilateral hearing loss, currently rated as noncompensable prior to January 6, 2011; 20 percent disabling from January 6, 2011 through August 17, 2011; and 10 percent disabling from August 18, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from June 1943 to December 1945. He was awarded the Purple Heart Medal. These matters come before the Board of Veterans Appeals (Board) from a September 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The matters were remanded in June 2012 for further development. The issue of entitlement to a separate rating for a left forearm injury (separate from that of the Veteran's scar) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Specifically, at a July 2012 examination of the left elbow, the Veteran appeared to be complaining of orthopedic pain in his left upper extremity as a result of his shell fragment wound. The Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's shell fragment wound scar on the left arm is superficial and nonlinear, and not of an area of 144 square inches or greater; nor is it unstable or painful. 2. Prior to January 6, 2011, the Veteran's service-connected bilateral hearing loss disability was productive of level II hearing acuity in the right ear and level II hearing acuity in the left ear. 3. From January 6, 2011 through August 17, 2011, the Veteran's service-connected bilateral hearing loss disability was productive of level VIII hearing acuity in the right ear and level IV hearing acuity in the left ear. 4. From August 18, 2011, to July 3, 2012, the Veteran's service-connected bilateral hearing loss disability was productive of level VIII hearing acuity in the right ear and level IV hearing acuity in the left ear. 5. From July 3, 2012, the Veteran's service-connected bilateral hearing loss disability has been productive of level IV hearing acuity in the right ear and level II hearing acuity in the left ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable disability evaluation for the Veteran's service-connected shell fragment wound scar on the left arm have not been met. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.118, Diagnostic Codes 7802, 7804 (2012). 2. Prior to January 6, 2011, the criteria for entitlement to a compensable disability evaluation for the Veteran's service-connected bilateral hearing loss have not been met. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012). 3. From January 6, 2011 through August 17, 2011, the criteria for entitlement to a disability evaluation in excess of 20 percent for the Veteran's service-connected bilateral hearing loss have not been met. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, 4.86(a) Diagnostic Code 6100 (2012). 4. Effective August 18, 2011, the criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected bilateral hearing loss has not been met. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, No. 08-7150, 2009 WL 2835434 (Fed. Cir. Sept. 4, 2009). Here, the Veteran was sent a letter in July 2009 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). However, 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). Nevertheless, the Board acknowledges that 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). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Scar The Veteran's service-connected shell fragment wound scar on the left arm has been rated by the RO under the provisions of Diagnostic Code 7802. Under this regulatory provision, a rating of 10 is warranted for burns or scars not of the head, face, or neck that are superficial and nonlinear, and that are of an area of 144 square inches or greater. Additionally, pursuant to Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. The Veteran underwent a VA examination in August 2009. The examiner noted a scar measuring 1 inch by 1 inch on the left arm. There was no skin breakdown or pain. The scar caused no limitation with respect to daily routines or employment. The scar was rounded (nonlinear). There was no underlying soft tissue scale damage. There was some hypertrophy in the middle of the scar and some limitation of motion of just elevation. There was no limitation of function caused by the scar. There was no inflammation, edema, or keloid formation. The Veteran underwent another examination in September 2011. He reported no pain associated with the scar. The examiner noted that the scar was stable, with no loss of covering of skin over the scar. The only scar noted by the examiner on the left arm was a 1.5 cm. circular scar consistent with a smallpox vaccination. That scar was superficial and nonlinear. The Veteran underwent a third VA examination in July 2012. The examiner noted that the Veteran's left forearm scar was not painful and was not unstable. She noted that the shrapnel scar was 4 cm. by 3 cm. (total area was 12 square centimeters). It was located on the mid forearm and was nontender. In order to warrant a compensable rating, the Veteran's superficial and nonlinear scar would have to be of an area of 144 square inches or greater. In the alternative, the scar would have to be unstable or painful pursuant to Diagnostic Code 7804. At the Veteran's August 2009 and September 2011 VA examinations the only scar noted measured 1 inch by 1 inch (1 square inch at the August 2009 VA examination), and 1.5 cm. at the September 2011 VA examination. Thus, that examination does not show a scar measuring or approximating the 144 square inches required under Diagnostic Code 7802. Likewise, the July 2012 examiner noted that the scar measured 12 square centimeters (again, well short of the 144 square inches required for an increase). Consequently, a compensable rating is not warranted under Diagnostic Code 7802. Additionally, all three examiners stated that the Veteran's scar was stable and not tender or painful. The Board acknowledges that the Veteran also underwent a July 2012 orthopedic examination in which he complained that pain in his forearm has resulted in left shoulder pain. As noted in the introduction, it appears that he is referring to pain of an orthopedic nature (since he denied pain in the scar at his July 2012 skin examination). Whether the shell fragment wound has resulted in an orthopedic disability (for which a separate rating might be established) is an issue the Board has referred to the RO. Finally, the record consistently shows that there was no limitation of function due to the scar. In the absence of a scar that is superficial and nonlinear and of an area of 144 square inches or greater, or a scar that is unstable or painful, the preponderance of the evidence weighs against the claim. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for a compensable rating for a shell fragment wound scar on the left arm must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). Hearing loss The current version of the Ratings Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. If impaired hearing 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 §3.383 of this chapter. Id. A noncompensable evaluation is provided where hearing in the better ear is I and hearing in the poorer ear is I through IX; where hearing in the better ear is II, and hearing in the poorer ear is II to IV; or where there is level III hearing in both ears. A 10 percent disability rating is warranted where hearing in the better ear is I, and hearing in the poorer ear is X to XI; or where hearing in the better ear is II, and hearing in the poorer ear is V to XI; or where hearing in the better ear is III, and hearing in the poorer ear is IV to VI. A 20 percent disability rating is warranted where hearing in the better ear is III, and hearing in the poorer ear is VII to XI; or where hearing in the better ear is IV, and hearing in the poorer ear is VI to VIII; or where hearing in the better ear is V, and hearing in the poorer ear is V to VI. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. Table VIa will be used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. 38 C.F.R. § 4.85(c). When the puretone 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. 38 C.F.R. § 4.86(a). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran underwent a VA examination in August 2009. The examiner reviewed the claims file in conjunction with the examination. Pure tone thresholds for the ears were as follows: HERTZ 1000 2000 3000 4000 RIGHT 45 50 55 60 LEFT 45 45 60 70 The pure tone average was 53 decibels in the right ear and 55 decibels in the left ear. Speech recognition scores were 90 percent in the right ear and 88 percent in the left ear. Such examination findings translate to level II hearing in the right ear and level II hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII, Diagnostic Code 6100, this equates to a 0 percent rating. The Veteran underwent another VA examination in January 2011. Pure tone thresholds for the ears were as follows: HERTZ 1000 2000 3000 4000 RIGHT 70 85 95 100 LEFT 45 45 60 75 The pure tone average was 88 decibels in the right ear and 56 decibels in the left ear. Speech recognition scores were 80 percent in the right ear and 82 percent in the left ear. Such examination findings translate to level V hearing in the right ear and level IV hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Since the Veteran's hearing loss in the right ear represents an exceptional pattern of hearing loss as defined by 38 C.F.R. § 4.86(a), Table VIa may be used if it reflects a higher level of hearing loss. The Board notes that, pursuant to Table VIa, the findings translate to level VIII hearing in the right ear. Applying Table VII, Diagnostic Code 6100, to the higher ratings (VIII in the right ear and IV in the left) this equates to a 20 percent rating. The Veteran underwent another VA examination in August 2011. Pure tone thresholds for the ears were as follows: HERTZ 1000 2000 3000 4000 RIGHT 45 50 65 70 LEFT 50 55 65 75 The pure tone average was 58 decibels in the right ear and 61 decibels in the left ear. Speech recognition scores were 86 percent in the right ear and 80 percent in the left ear. Such examination findings translate to level III hearing in the right ear and level IV hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII, Diagnostic Code 6100, this equates to a 10 percent rating. The Veteran underwent another VA examination in July 2012. Pure tone thresholds for the ears were as follows: HERTZ 1000 2000 3000 4000 RIGHT 45 45 60 70 LEFT 50 50 60 70 The pure tone average was 55 decibels in the right ear and 58 decibels in the left ear. Speech recognition scores were 82 percent in the right ear and 76 percent in the left ear. Such examination findings translate to level IV hearing in the right ear and level IV hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII, Diagnostic Code 6100, this equates to a 10 percent rating. Per the Board's June 2012 Remand instructions, the examiner addressed the basis for the Veteran's increased hearing loss at his January 2011 VA examination. She noted that the increased hearing loss was due to effusion (middle ear fluid) in the right ear. She noted that the Veteran had abnormal tympanometry at his January 2011 examination, and that this suggested ear disease. She noted that the Veteran had normal tympanometry at the time he underwent his August 2011 VA examination. She noted that the increase in hearing loss reflected in the January 2011 VA examination report was not permanent (inasmuch as the tympanometry is now normal and there is no longer any apparent ear disease). Analysis The Veteran has been assigned a noncompensable rating prior to January 6, 2011. This rating was based on the results of August 2009 VA examination, which showed puretone averages and speech recognition scores which translated to level II hearing in the right ear and level II hearing in the left ear. As noted above, applying Table VII, Diagnostic Code 6100, this equates to a 0 percent (or noncompensable rating). Exceptional patterns of hearing loss not were shown. Based on these audiological test results, a rating in excess of 0 percent is not warranted. The Veteran has been assigned a 20 percent rating effective January 6, 2011 to August 11, 2011. This rating was based on the results of January 2011 VA examination, which showed puretone averages and speech recognition scores which translated to VIII in the right ear (after consideration of the Veteran's exceptional pattern of hearing loss) and IV in the left. As noted above, applying Table VII, Diagnostic Code 6100, this equates to a 20 percent rating. Based on these audiological test results, a rating in excess of 20 percent is not warranted. A 10 percent rating has been in effect since August 11, 2011. This rating was based on the results of August 2011 and July 2012 VA examinations, which showed puretone averages and speech recognition scores which translated to IV in the right ear and IV in the left. As noted above, applying Table VII, Diagnostic Code 6100, this equates to a 10 percent rating. Based on these audiological test results, a rating in excess of 10 percent is not warranted. The Board acknowledges the Veteran's contentions regarding the impact of his hearing loss on his daily activities, and VA's obligation to resolve all reasonable doubt in the Veteran's favor. However, as noted previously, because assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered there is no doubt as to the proper evaluation to assign. Lendenmann, supra; 38 C.F.R. § 4.85, Tables VI, VIA, and VII, Diagnostic Code 6100. Applying the audiological test results to the regulatory criteria, the Board is compelled to conclude that the preponderance of the evidence is against entitlement to increased ratings. There is no reasonable doubt to be resolved. The Veteran may always advance an increased rating claim should the severity of his hearing loss disability increase in the future. The potential application of various provisions of Title 38 of the Code of Federal Regulations have also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1); see also See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (noting that functional effects of hearing loss must be considered in an extraschedular determination). However, as discussed above, the evidentiary record in this case persuasively shows that the Veteran's hearing loss symptoms squarely match the type and degree of the examples set forth under the criteria for the current 10 and 20 percent schedular ratings. Likewise, the consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is not appropriate in such a case where the rating criteria reasonably describe the Veteran's disability level and symptomatology. See generally Thun v. Peak, 22 Vet.App. 111 (2008). The Board therefore finds that referral for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is not warranted in this case. ORDER A compensable rating for a shell fragment wound scar of the left forearm is denied. An increased rating for bilateral hearing loss, rated as noncompensable prior to January 6, 2011, as 20 percent disabling from January 6, 2011 to August 18, 2011, and as 10 percent disabling therefrom, is denied. ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs