Citation Nr: 1309441	
Decision Date: 03/20/13    Archive Date: 04/01/13

DOCKET NO.  10-42 851	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to an initial compensable rating for the service-connected residual burn scar of the right forearm.

2.  Entitlement to an initial rating in excess of 10 percent for the service-connected congenital lumbar stenosis with disc bulge and chronic low back pain ("lumbar spine disability").

3.  Entitlement to service connection for bilateral hearing loss.

4.  Entitlement to service connection for tinnitus.

5.  Entitlement to service connection for residuals of frostbite of the feet.


REPRESENTATION

Appellant represented by:	Tennessee Department of Veterans' Affairs

ATTORNEY FOR THE BOARD

K. L. Wallin, Counsel


INTRODUCTION

The Veteran served on active duty from March 1984 to March 1987.  

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the claims of service connection for hearing loss, tinnitus, and frostbite of the feet.  The same decision also awarded service connection for a lumbar spine disability (10 percent) and residual burn scar of the right forearm (noncompensable) effective from August 2009.  

The Veteran has raised claims of entitlement to service connection for diabetes mellitus and congestive heart failure.  See VA Form 9 filed in October 2010.  These claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  

The claims of entitlement to a rating in excess of 10 percent for the lumbar spine disability and service connection for frostbite of the feet are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Throughout the appellate period, the Veteran's residual burn scar of the right forearm has not shown to be: unstable or painful; deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.); or superficial and nonlinear, in an area or areas of 144 square inches (929 square centimeters) or greater.  

2.  The competent and probative medical evidence of record preponderates against a finding that the Veteran's hearing loss is due to events in active service, and sensorineural hearing loss as an organic disease of the nervous system is not shown to have been manifested to a compensable degree within one year after the Veteran's separation from service in March 1987.

3.  The competent and probative medical evidence of record preponderates against a finding that the Veteran's tinnitus is due to events in active service.


CONCLUSIONS OF LAW

1.  The criteria for the assignment of an initial compensable evaluation for the service-connected residual burn scar of the right forearm have not been met.          38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.118, including Diagnostic Codes 7800-7805 (2012).

2.  The criteria for service connection for hearing loss have not been met.  
38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2012).

3.  The criteria for service connection for tinnitus have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Notice and Assistance

Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim.  Dingess v. Nicholson, 19 Vet. App. 473   (2006).

The RO provided the Veteran pre-adjudication notice by letter dated in August 2009. 

As the rating decision on appeal granted service connection for lumbar spine disability and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  A September 2010 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased rating and readjudicated the matter.  38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006).  The August 2009 letter previously provided him with general disability rating and effective date criteria.  The Veteran has had ample opportunity to respond/supplement the record.  He has not alleged that notice in this case was less than adequate.  See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ( "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error).

VA has obtained service treatment records, assisted the Veteran in obtaining evidence, provided the Veteran VA examinations, and afforded the Veteran the opportunity to give testimony before the Board, which he declined.  

The Board notes that additional audiological records were added to the claims folder after the January 2012 supplemental statement of the case was issued. However, remand is not necessary as it was duplicative of evidence already of record, i.e. the new evidence simply confirmed the diagnosis of bilateral sensorineural hearing loss, which is not in dispute.  38 C.F.R. § 19.31.  

All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise.  VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time.

II. Analysis

The Board has reviewed all the evidence in the Veteran's paper claims file and Virtual VA record, which does not contain any additional pertinent information.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  

Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

A. Increased Rating for Residual Burn Scar of the Right Forearm

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  

VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability.  38 C.F.R. § 4.2.  Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 4.3.  

Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating.  38 C.F.R. § 4.7.  

When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity.  38 C.F.R. § 4.10.  See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability.  Schafrath, 1 Vet. App. at 594.  

In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994).  

The Board also acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation at any stage since the effective date of service connection.  See Fenderson v. West, 12 Vet. App 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods.  

Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience.  

To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).

Historically, service connection was awarded for residual burn scars of the right forearm in an April 2010 rating decision.  An initial noncompensable evaluation was assigned effective in August 2009.  The Veteran disagreed with the initial rating assigned and initiated the instant appeal.  

The Veteran's scar has been rated under 38 C.F.R. § 4.118, Diagnostic Code 7804, as noncompensable.  Under that code, a 10 percent rating is assigned for one or two scars that are unstable or painful; 20 percent is assigned for three or four scars that are unstable or painful.  Note (1) defines an unstable scar as one where, for any reason, there is frequent loss of skin over the scar.  38 C.F.R. § 4.118.  In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.

The pertinent facts found in the medical evidence of record are discussed below.  Having carefully considered the Veteran's claim in light of the evidence of record and the applicable laws and regulations, and as outlined in the reasons and bases below, the Board finds that the currently assigned noncompensable rating for  residual burn scar of the right forearm is appropriate and no higher rating is warranted under any applicable diagnostic code for rating the skin.  38 C.F.R. §§ 4.7, 4.118.  

Notably, private treatment records dated between 2005 and 2008 from A. M. Diabetes and Endocrinology Center contain no complaints or treatment for the burn scar.  Repeatedly, the provider found no rashes or non-healing lesions.  Upon VA examination in October 2009, the Veteran had a 3 centimeter by 2 millimeter barely discernible scar over the subcutaneous border of the ulna.  The scar was mobile without any evidence of contraction.  It was nontender to palpation.  He had slight dysesthesias on sensory examination over the scar, but not in the surrounding area.  He had full elbow range of motion.  He had intact 2/2 light touch sensation for radial, median, and ulnar nerves.  He had palpable radial pulse.  The examiner concluded there were no functional limitations related to the scar. 

In a separate October 2009 cold injury protocol examination, the scar was located on the ventral ulnar aspect of the right forearm and measured 4 centimeters by 6 centimeters.  It was not painful or tender on examination.  There was no skin breakdown.  The scar was superficial and not deep.  There was no limitation of motion or function.  There was no inflammation, edema, or keloid.  It was slightly darker that the rest of the skin, but there was no elevation or depression.  It was nonadherent.  There was no abnormal texture, induration or inflexibility.  

Private medical records from Dr. SB and Dr. Y were also devoid of complaints, treatment, or reference to the residual burn scar of the right forearm.  

While a noncompensable rating is warranted throughout the appeal period, a 10 percent rating is not warranted  under Diagnostic Code 7804 as the burn scar has not been shown to be either unstable or painful.  The Board has also considered other potentially applicable diagnostic codes that provide for the assignment of higher evaluations for the Veteran's residual burn scar of the right forearm.  After review, however, the Board observes that no other code provisions can be applied for a higher rating based on the evidence of record.  There was no evidence of  
a burn scar not of the head, face, or neck that is deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) (Diagnostic Code 7801) or  burn scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear, in an area or areas of 144 square inches (929 square centimeters) or greater (Diagnostic Code 7802) to warrant a higher rating.  38 C.F.R. § 4.118 (2012).  

"Staged" ratings, other than what has been awarded in the instant decision, are not warranted for any period of the appeal.  38 C.F.R. § 4.71a; see Fenderson, supra.  Should the Veteran's disability picture change in the future, he may be assigned a higher rating.  See 38 C.F.R. § 4.1.  

The above determinations are based upon application of the pertinent provisions of VA's rating schedule.  With regard to possible extraschedular consideration, the threshold factor is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Thun v. Peake, 22 Vet. App. 111 (2008).  In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required.  Id.  Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). 

The schedular criteria, in general, are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1.  The Board finds that the symptoms and resulting impairment demonstrated with regard to the burn scar disability falls within the schedular criteria.  The Veteran's disability is manifested by a scar covering a described percentage of his body, and other reported symptoms including pain.  The rating criteria contemplate these symptoms.  See Diagnostic Codes 7800-7806.  Accordingly, referral for consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case. 

A total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Entitlement to TDIU is raised where a Veteran : (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met.  Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009).  The evidence of record shows the Veteran was working as a correctional officer and he has not made any assertions of unemployability during the appeal period.  Hence further consideration of TDIU is not warranted. 

B. Service Connection for Hearing Loss and Tinnitus

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).  

For some 'chronic diseases,' such as other organic diseases of the nervous system (sensorineural hearing loss), presumptive service connection is available.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  With 'chronic disease' shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 C.F.R. § 3.307.  The term 'chronic disease', whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429, slip op. at 13 (Fed. Cir. Feb. 21, 2013).  

Impaired hearing will be considered a disability for VA purposes when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 40 decibels or more; or when the thresholds for at least three of these 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.  The provisions of § 3.385, however, do not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Although that regulation speaks in terms of service connection, it operates to establish when a measured hearing loss is (or, more accurately is not) a "disability" for which compensation may be paid, provided that other requirements for service connection are otherwise met under 38 U.S.C.A. §§ 1110, 1112 and 38 C.F.R. §§ 3.303, 3.307.  Hensley  v. Brown, 5 Vet .App. 155 (1993). 

In this decision, the Board has considered all lay and medical evidence as it pertains to the issues.  38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. § 3.303(a).  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.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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 determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment.  Caluza v. Brown, 7 Vet. App. 498 (1995). 

The Veteran reports that he has tinnitus and hearing loss as a result of his active military service.  Specifically, he contends that the claimed conditions are the result of noise exposure while performing duties as a cannon crew member.  He also asserts that he was exposed to field artillery noise from 50 caliber machine guns, claymore mines, M-16's, and M-72 laws without the benefit of hearing protection.  See VA Form 9 received in October 2010.

The service treatment records reflect no histories, findings, or treatment suggestive of tinnitus or hearing loss.  The October 1983 enlistment examination contained auditory thresholds as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
15
20
10
LEFT
5
0
15
20
20

A July 1984 audiogram contained auditory thresholds as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
10
20
15
10
20
LEFT
10
0
20
5
0

A June 1987 report of medical history conducted after separation (an attempt at reenlistment), reveals that the Veteran specifically denied ear trouble or hearing loss.  The corresponding examination reflected normal clinical findings.  On the authorized audiological evaluation, pure tone thresholds were as follows: 





HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
0
20
10
LEFT
5
0
15
20
20


Post-service, private medical records from A. M. Diabetes and Endocrinology Center show that hearing was evaluated as grossly normal between 2005 and 2008.  In September 2006, the Veteran specifically denied tinnitus and hearing loss.  

The Veteran was afforded a VA examination in January 2010.  The Veteran reported noise exposure from gunfire, artillery, and grenades during service.  He indicated that he worked in a paint booth at a factory for four years after service and had been working at a prison for the past 18 years.  He indicated that he wore hearing protection for weapons qualifications.  The Veteran reported intermittent  tinnitus beginning in the early 1990s.  The Veteran was diagnosed with bilateral sensorineural hearing loss.  The examiner opined hearing loss and tinnitus were less likely as not caused by or a result of service-related noise exposure.  The examiner reasoned that the Veteran's hearing loss was normal in each ear when tested in 1983, 1984, and 1987. The examiner further explained that there were no significant changes in hearing thresholds when the test from 1983 was compared to the test from 1987.  The examiner also indicated that the tinnitus was not noticed until the early 1990's.   Finally, the examiner indicated there was some civilian noise exposure.       

The Board acknowledges that the Veteran reported that he has had tinnitus since the early 1990's.  The Board finds this history is not credible, and thus not probative, however, as it is contradicted by the absence of complaints or treatment for the claimed condition post-service (except on VA examination) and the negative histories as to hearing disturbances provided to private providers, notably in September 2006 when he specifically denied tinnitus (as well as hearing loss).  

Assuming the Veteran is alleging continuity of symptoms since service in the form of problems with his hearing, though not specifically argued in this case, sensorineural hearing loss is a "chronic disease" under 38 C.F.R. § 3.309(a).  It is considered an organic diseases of the nervous system.  Thus, consideration under 38 C.F.R. § 3.303(b) is warranted.  Where a combination of manifestations sufficient to identify a 'chronic disease' in service, and establish chronicity at the time are present, any later manifestation of the same 'chronic disease' is subject to service connection unless attributable to an intercurrent cause.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  

The service treatment records are silent as to any complaints suggestive of hearing loss (or tinnitus for that matter), and the first objective evidence of either upon VA examination in 2009 dates 22 years after separation.  The long time lapse can be considered, along with other factors, as evidence of whether an injury or disease was incurred in service which resulted in any chronic or persistent disability.  See Maxson v. Gober, 230 F.3d 1330   (Fed. Cir. 2000).  

The Veteran is competent to report complaints of hearing loss.  The Veteran is not, however, competent to report whether these complaints were manifestations of a 'chronic disease.'  See Jandreau, supra.  As outlined above, the competent medical evidence of record concludes that bilateral sensorineural hearing loss is not related to noise exposure in service.  The 'chronic disease' was not present to a degree capable of identifying the disease entity during service.  No symptoms related to hearing loss have been identified in the post-service medical record for continuity of symptomatology.  The Board concludes that service connection for hearing loss is not warranted under 38 C.F.R. § 3.303(b).

Service connection may also be granted when the evidence establishes a nexus between active duty service and current complaints.  The Board finds that the preponderance of the competent evidence is against a finding of a nexus between the Veteran's hearing loss and tinnitus and his active service, despite his contentions to the contrary. 

In that regard, the Board finds substantially probative the January 2010 opinion that tinnitus and bilateral hearing loss were less likely than not incurred in or caused by noise exposure in service.  The opinion was rendered after review of the Veteran's claims file, including his service treatment records, and physical examination of the Veteran; the opinions are clearly based on an accurate history.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (finding that a physician's access to the claims file and the thoroughness and detail of the opinion are important factors in assessing the probative value of a medical opinion).  

The only evidence of record to support the Veteran's contentions is his statements.  The Veteran has claimed that his hearing loss and tinnitus are the result of noise exposure while performing duties as a cannon crew member.  The Board acknowledges that the Veteran is competent to report a history of noise exposure.  However, his statements do not establish a nexus between any acquired pathology and his military service.  Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise.  With regard to sensorineural hearing loss, it requires specialized training for a determination as to diagnosis and causation and is not susceptible of lay opinions on etiology.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer").  Tinnitus is also not susceptible of lay opinion on etiology.  Therefore, the Board cannot give decisive probative weight to the opinions of the Veteran about the origins of his bilateral sensorineural hearing loss and tinnitus because he is not qualified to offer such opinions.  Likewise, his representative is not competent to provide a probative opinion on the question of etiology, either.

Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus, and thus, the benefit-of-the-doubt doctrine does not apply.  As such, the evidence is insufficient to support a grant of service connection for any such 
hearing loss or tinnitus.  Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).


ORDER

Entitlement to an initial compensable rating for the service-connected residual burn scar of the right forearm is denied.

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for tinnitus is denied.


REMAND

The Veteran additionally claims entitlement to an initial evaluation in excess of 10 percent for the service-connected lumbar spine disability and service connection for frostbite of the feet.  A preliminary review of the record discloses the matters are not ready for appellate disposition.

The record compiled for appellate review of this matter appears incomplete.  The Veteran contends that he suffered frostbite of the feet while stationed in Germany during an extremely cold winter.  Specifically, he asserts that he was in field training sometimes up to 30 days and would have to perform field exercises in the snow, ice and watery trenches.  He additionally claims that he was sent home on furlough from field training for two weeks in/around January 1985 due to frostbite of the feet.  See VA Form 9 received in October 2010.   The Veteran's service personnel records, which would presumably show duty assignments and any such furloughs, have not been associated with the claims folder.  Attempts must be made to obtain them upon Remand.  38 C.F.R. § 3.159(c)(2).  

With regard to the claim for increase for the service-connected lumbar spine disability, the Veteran contends that his disability is now productive of uncontrollable bowel movements that sometimes occur at night when he is asleep.  See VA Form 9 received in October 2010.  The last VA examination with regard to the spine was dated in October 2009, over three years ago.  Applicable rating criteria provide that compensable neurological manifestations of the lumbar spine disability are to be separately rated.  It is not clear from current record whether or not the Veteran's service-connected lumbar spine disability has compensable neurological manifestations, and further examination is needed to address that question.  38 C.F.R. § 3.327(a); See Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997).  The Board is not free to substitute its own judgment for that of such an expert.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).  

The RO should ensure that all due process requirements are met.  The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal.  38 U.S.C.A. § 5103A (b) (West 2002).

Accordingly, the case is REMANDED for the following action:

1.  Take all indicated action in order to obtain copies of any of the Veteran's service personnel records not on file.  All records and/or responses received should be associated with the claims file. 

2.  Obtain the names and addresses of all medical care providers who treated the Veteran for his back or feet since service.  After securing the necessary release, the obtain these records.

3.  After completion of the foregoing, schedule the Veteran for a VA orthopedic examination to ascertain the severity of his service-connected lumbar spine disability.  The Veteran's entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner before the examination.  If the examiner does not have access to Virtual VA, any relevant treatment records in Virtual VA that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.  All indicated tests or studies must be completed (e.g., to assess any neurological manifestations).  The examiner should describe all findings  in detail.    

The examiner should describe all findings (to include ranges of motion) in detail.  The examiner should perform repetitive range of motion testing and also comment on the degree of limitation of function, if any, due to pain, weakness, lack of endurance, fatigue, or incoordination.  The examiner should further indicate the total duration of incapacitating episodes (required bed rest prescribed by a physician and treatment by a physician) of intervertebral disc syndrome during the previous 12 months, if any.  

The examiner should also ascertain whether or not the Veteran has any neurological manifestations of his lumbar spine disability, to include bladder and/or bowel impairment (if a neurological consultation is deemed necessary, such should be arranged) and, if so, describe their nature, severity and comment on any associated impairment of function.  The examiner should identify any neurological impairment found by indicating the nerve affected, and comment regarding whether it is best described as neuritis, neuralgia, or complete or incomplete paralysis (indicating the degree of any such involvement, and describing any related impairment of function).  The examiner must explain the rationale for all opinions.

4.  In the interest of avoiding further remand, ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND.  

5.  After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the issues in light of all evidence of record, to include any pertinent evidence contained within Virtual VA.  If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response.

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

These claims 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).



______________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs