Citation Nr: 1316014 Decision Date: 05/15/13 Archive Date: 05/29/13 DOCKET NO. 09-30 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for carpal tunnel syndrome, right hand. 3. Entitlement to an increased, compensable rating for scar due to second degree burns, left hand. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Michel INTRODUCTION The Veteran served on active duty from January 1976 to December 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which continued a noncompensable rating for residual scar of the left hand and denied entitlement to service connection for the other disabilities on appeal. The Veteran requested a travel Board hearing in his formal appeal, VA Form 9, received in August 2009; however, he withdrew his request in October 2009. It appears from an August 2009 VA Form 21-4142 that the Veteran is raising the issues of entitlement to service connection for diabetes and epilepsy. These issues have not been addressed by the RO. Therefore, they are referred to the RO for appropriate action. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file has been accomplished in order to ensure complete review of the record. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss disability is not etiologically related to his active service. 2. The Veteran's carpal tunnel syndrome, right hand, is not etiologically related to his active service. 3. Scar of the left hand is superficial, encompasses an area less than 144 square inches (929 square centimeters), is not unstable or painful on examination, and does not result in limitation of function of the left hand. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in active service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5107 (2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2011). 2. The criteria for service connection for carpal tunnel syndrome, right hand are not met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 3. The criteria for a compensable disability rating for service-connected scar of the left hand have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 38 C .F.R. § 4.118, Diagnostic Codes 7801-7805 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). However, the Court also stated that the failure to provide such notice in connection with adjudications prior to the enactment of the VCAA was not error and that in such cases; the claimant is entitled to "VCAA-content complying notice and proper subsequent VA process." Id. at 120. The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects the Veteran was provided VCAA notice in a letter mailed in September 2008, containing notice concerning the disability-rating and effective-date elements of the claims. The Board also finds VA has complied with its duty to assist the Veteran in the development of his claims. In this regard, the Board notes that service treatment records, pertinent post-service VA, private medical, and Social Security Administration (SSA) records have been associated with the claims folders. The Veteran has not been afforded a VA medical examination in response to the claim for service connection for right hand carpal tunnel syndrome, herein decided. However, medical examination is not required if the appellant has not presented a prima facie case for the benefit claimed. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c) (4). See also Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003); Duenas v. Principi, 18 Vet. App. 512 (2004) (per curiam). As noted in detail below, the Veteran has not presented a prima facie case for service connection. The Veteran was afforded VA examinations for the claims regarding bilateral hearing loss and left hand scar. The Board has reviewed the examination reports and determines that the examination reports and opinions are adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Neither the Veteran nor his representative has identified any other evidence that could be obtained to substantiate the claims. The Board also is unaware of any such outstanding evidence. Therefore, the Board is satisfied that the originating agency has complied with the duty to assist requirements of the VCAA and the pertinent implementing regulation. In sum, the Board is satisfied that any procedural errors in the RO's development and consideration of the claims were insignificant and non prejudicial to the Veteran. Accordingly, the Board will address the merits of the claim. Legal Criteria Service Connection Claims Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. For the showing of 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. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and an organic diseases of the nervous system, which includes sensorineural hearing loss, becomes 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 or aggravated by service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The record does not reflect a diagnosis of bilateral hearing loss disability within one year of service separation. The Veteran cannot benefit from application of the presumption. Id. For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Disability Rating Claim Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). 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. (2012). The evaluation of the same disability under various diagnoses is to be avoided. C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The RO has rated the Veteran's left hand scar under Diagnostic Code (DC) 7802. DC 7802 provides that scars, other than the head, face or neck, that are superficial and that do not cause limited motion are assigned a 10 percent rating when the area is 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, DC 7802 (2008). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis Service Connection Claims A. Bilateral Hearing Loss The Veteran asserts he has bilateral hearing loss due to noise exposure in service, specifically truck engines and weapons fire. At the outset, the Board notes that the Veteran is competent and deemed credible to report his in-service experiences. The Board has reviewed the evidence of record and finds, for the reasons expressed below, that the Veteran's bilateral hearing loss disability is not etiologically related to his active service. Service personnel records show that the Veteran's occupational specialty was generally motor transportation. Service treatment records, to include enlistment and separation examinations, do not show hearing impairment. A private treatment record in May 2006 appears to show sensorineural hearing loss. A letter from Dr. A.M.P., M.D., in May 2006 stated that the Veteran had progressive hearing loss for 15 to 20 years; he noted exposure to loud noise for at least 19 years as a truck driver. Audiometric testing showed mild to moderate degree sensorineural hearing loss. The doctor stated that it appeared the sensorineural hearing loss was related to exposure to loud noise and the aging progress. The Veteran was afforded a VA audiological evaluation in May 2009. The Veteran reported noise exposure in the service to include weapons in basic training and of jet engines while delivering fuel. Puretone threshold values showed the presence of bilateral hearing loss disability per VA regulations, thus a disability was established at that time. The examiner opined that the hearing disability found at the examination was not the result of military service. The examiner explained that the Veteran's service treatment records contained audiometric evidence that at the time of his separation from the Army in 1977 and some years later (1991) his hearing was clinically normal. Correspondence from R.E.Conn received in January 2010 showed that the Veteran was seen in June 2006 because of hearing loss, moderate hearing loss bilaterally was found, and the Veteran was fitted with hearing aids at that time. With respect to the Veteran's bilateral hearing loss, the medical evidence does not provide a nexus between his in-service acoustic trauma and his current disability. It should be noted that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). While there is evidence of current bilateral hearing loss and evidence of acoustic trauma during service, there is no medically sound basis upon which to attribute the post-service findings to the in-service acoustic trauma. As such, service connection must fail. That is, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). Again, the Veteran is competent to report his in-service experiences and acoustic trauma is conceded. However, hearing loss (sufficient to meet the requirements of § 3.385) is not a condition capable of lay diagnosis, much less the type of condition that can be causally related to military service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006), Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In this case, the opinions of the private examiner in May 2006 and the VA examiner in May 2009 are against the claim. That is, the private examiner noted exposure to loud noise for at least 19 years as a truck driver when the Veteran was in service for less than two years, and the examiner attributed the sensorineural hearing loss to exposure to loud noise and the aging progress. The VA examiner opined that the hearing disability found at the examination was not the result of military service. Accordingly, the Board concludes that the Veteran's bilateral hearing loss disability is not etiologically related to his active service. B. Carpal Tunnel Syndrome, Right Hand The Veteran contends that he is entitled to service connection for carpal tunnel syndrome, right hand, claimed as a problem secondary to burns received in the service. The Board has reviewed the evidence of record and finds, for the reasons expressed below, that the Veteran's claimed right hand carpal tunnel syndrome is not etiologically related to his active service. Service treatment records show that the Veteran was treated for burn scars on both hands; however, his separation examination in November 1977 showed no chronic residual disabilities of the right hand. A February 2008 private treatment record shows a diagnosis of carpal tunnel; however, this record is from six months prior to the Veteran filing his claim for service connection and does not provide a nexus opinion. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In a March 2009 notice of disagreement, the Veteran also stated that his hand would swell up and go numb. The record establishes that the Veteran did not have this disability at the time the claim for VA disability compensation was filed in August 2008, or during the pendency of the claim. Based upon review of the evidence above, the Board finds the Veteran's claim for service connection for carpal tunnel syndrome of the right hand must fail because service treatment records did not show a chronic residual disability of the right hand and the medical evidence of record does not provide a nexus between his service and his claimed disability. That is, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between service and the disability. Boyer, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard, 13 Vet. App. 546, 548; Collaro, 136 F.3d 1304, 1308 (Fed. Cir. 1998). Again, the Veteran is competent to report his in-service experiences. However, carpal tunnel syndrome is not a condition capable of lay diagnosis, much less the type of condition that can be causally related to military service. Jandreau, 492 F.3d 1372, 1377(Fed. Cir. 2007), Buchanan, 451 F .3d 1331, 1337 (Fed.Cir.2006), Davidson, 581 F.3d 1313 (Fed. Cir. 2009). Accordingly, the Board concludes that the service connection is not warranted. Disability Rating Claim In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Historically, in a July 1997 rating decision the Veteran was granted service connection for second degree burns with residual scar, left hand, with an evaluation of 0 percent, effective December 16, 1992. The Veteran filed the instant claim for an increased rating in August 2008. The Board notes that the applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended in October 2008. The October 2008 revisions are applicable to claims for benefits received by VA on or after October 23, 2008. See 73 Fed. Reg. 54708 (September 23, 2008). In this case, the Veteran filed his claim before the applicable date. Therefore, the Board will only consider the scheduler criteria for scars in effect before October 2008. Based on thorough review of the evidence of record, the Board finds that the Veteran is not entitled to a compensable disability rating for his scar. The Veteran was afforded a VA examination in May 2009 for scars in which no pain was noted. The Veteran reported getting scaly spots on his hands that would break open and bleed. The examiner noted that he could not appreciate any discernible burn scars on the right hand and that burn scar on the left dorsal hand covered most of the dorsal hand with 13 centimeter (cm) by 12 cm round area was mildly hypopigmented, but there was no other obvious residuals and the skin texture appeared normal. The examiner also noted that the faint scar caused no impairment to movement or grip; there was no tenderness on palpation, no adherence to underlying tissue, no limitation of motion or loss of function, no underlying soft tissue damage, and no skin ulceration or breakdown over scar. The Veteran was also afforded a VA examination in January 2013 in which the examiner noted that the scar was not painful; the scar was not unstable, with no frequent loss of covering of skin over the scar. There were nine very small scars to the dorsal surface of the hands, less than deep partial thickness; left upper extremity approximate total area of scars was 0.628 cm2. The examiner noted that there was no limitation of function due to scars and scars did not impact the Veteran's ability to work. Based on the evidence of record, the most pertinent of which was discussed above, the Board finds that the Veteran's scar does not encompass an area that is 144 square inches (929 square centimeters) or greater. Accordingly, the Veteran's left hand scar does not warrant a compensable disability rating under DC 7802. The Board has considered whether the Veteran is entitlement to a compensable rating under other Diagnostic Codes for scars. DC 7800 evaluates disfigurement of the head, face, or neck. As the scar is not located on the head, face, or neck, DC 7800 is not applicable. A 10 percent rating is warranted for scars, other than head, face, or neck, that are deep or that cause limited motion, when the area exceeds 6 square inches (39 square centimeters) under DC 7801. 38 C.F.R. § 4.118, DC 7801 (2008). A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Note (2) (2008). Under DC 7803, scars that are superficial and unstable warrant a 10 percent rating. 38 C.F.R. § 4.118, DC 7803 (2008). An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. Under DC 7804, scars that are superficial and painful on examination warrant a 10 percent rating. 38 C.F.R. § 4.118, DC 7804 (2008). DC 7805 provides that all other scars are to be rated based on limitation of function of the affected part. 38 C.F.R. § 4.118, DC 7805 (2008). The evidence of record shows that the Veteran's left hand scar is not manifested by deep or limited motion of an area in excess of 6 square inches (39 square centimeters). Although the Veteran's left hand scar is superficial and does not cause limited motion, it encompasses an area less than 144 square inches (929 square centimeters). Furthermore, the evidence of record shows that the Veteran's left hand scar is not unstable and it was not painful on examination. The competent medical evidence of record shows that the left hand scar has not fluctuated materially during the course of this appeal. As such, a staged rating is not warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). VA must also consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has carefully considered the Veteran's account of his symptoms, in the form of his correspondence to VA. Although the Veteran is competent to report his own overall symptomatology, there is no medical evidence showing a degree of impairment due to his scars that approximates a compensable disability rating. In the Board's opinion, the objective medical evidence prepared by skilled examiners is more probative than the statements of the Veteran. In this regard, the Board notes that the examiners have considered the Veteran's statements in assessing the degree of disability and have addressed the specific rating criteria applicable to scars. The Board has also considered whether this claim should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a) (2012). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case the manifestations of the scar are those specifically contemplated by the schedular criteria. Therefore, the Board has determined that referral of the claim for extra-schedular consideration is not required. In sum, the Board finds the criteria for increased, compensable evaluation for scars are not met. Accordingly, the claim must be denied. As the evidence preponderates against the claim, the benefit-of-the-doubt rule is not for application. The Court has recently held that a request for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation; there must be convincing evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). In this case the Veteran has not claimed and there is no indication in the evidence that he is unemployable due solely to the service-connected disabilities. Thus, the issue of entitlement to TDIU is not a component of the issue on appeal. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for carpal tunnel syndrome, right hand, is denied. Entitlement to an increased, compensable rating for scar due to second degree burns, left hand, is denied. ____________________________________________ MARK GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs