Citation Nr: 1316037 Decision Date: 05/15/13 Archive Date: 05/29/13 DOCKET NO. 05-11 628 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for sleep apnea. 3. Entitlement to service connection for a lung disorder, claimed as a spot on the lung. 4. Entitlement to service connection for right knee pain. 5. Entitlement to a compensable disability rating for a scar of the left forearm, on appeal from an initial grant of service connection. REPRESENTATION Appellant (Veteran) represented by: The American Legion ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from October 1974 to October 1976, and then from July 1977 to March 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), located in Montgomery, Alabama. In May 2009 and July 2011, this matter was remanded for additional development and medical inquiry. The July 2011 Board remand requested additional medical inquiry into several claims to include the service connection claims for lung and sleep apnea disorders. As will be further detailed below, the development directed by the Board has not been accomplished. Therefore, a new remand is required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). The issues of entitlement to service connection for lung and sleep apnea disorders are addressed in the REMAND portion of the decision below and are again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Board has reviewed the entire record to include the Veteran's virtual VA claims file. No relevant evidence has been included in the claims file since the supplemental statement of the case (SSOC) dated in November 2012. FINDINGS OF FACT 1. The Veteran does not have a current hearing loss disorder under VA guidelines. 2. Evidence of record indicates that the Veteran did not experience a chronic right knee disorder during service or for many years following service; the current right knee disorder is not related to service. 3. Evidence of record indicates that, prior to April 11, 2005, the Veteran's left forearm superficial scar was less than 6 square inches in size, and was asymptomatic. 4. The Veteran reported in her VA Form 9, which was received by VA on April 11, 2005, that her left forearm scar was painful, which was confirmed by the VA examination of September 6, 2011; the Veteran's left forearm superficial scar has been stable and has not limited function. CONCLUSIONS OF LAW 1. A hearing loss disability was not incurred in active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). 2. A right knee disorder was not incurred in active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 3. Prior to April 11, 2005, the criteria for a 10 percent disability rating, for a scar on the left forearm, had not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7804 (2004, 2008). 4. Since April 11, 2005, the criteria for a rating of 10 percent, but no higher, for a scar on the left forearm, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7804 (2004, 2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks service connection for multiple disabilities that she believes began in or were caused by or the result of her ten years of military service. Because service connection has not been granted by the RO, she has appealed to the Board for relief. She has also claimed entitlement to a higher initial rating for a scar disability that has been granted service connection. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). Also, the Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Notice which informs the appellant of how VA determines disability ratings and effective dates should also be provided. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the agency of original jurisdiction (AOJ) has satisfied the duty to notify as required by the VCAA by means of letters sent to the Veteran in July 2004 and June 2009. The Veteran was informed of the types of evidence required to substantiate the claims for service connection and of her, and VA's, respective duties for obtaining evidence. The Veteran was also asked to submit evidence and/or information in her possession to the AOJ. It is noted that the letter provided to the Veteran in June 2009 included the notice provisions required by Dingess/Hartman. With respect to this initial increased rating claim, the Veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the Board finds that the Veteran's claim for service connection has been substantiated, additional notice was not required. Nevertheless, such additional notice was provided in June 2009. The AOJ has also satisfied the duty to assist the Veteran. The record indicates that the Veteran's VA medical records and her service treatment records (STRs) are of record. The Board has reviewed a statement from the Veteran's representative, dated in December 2012, which appears to indicate that, based on statements of record noted in an August 2004 VA report, VA treatment records and STRs are currently outstanding. However, a review of the record indicates that the medical evidence referred to in the August 2004 report is of record. The record contains VA treatment records dated from 1998 until 2012, and contains the Veteran's STRs dating from 1974 to 1984 as well. With consideration of the facts set forth above, the Board is satisfied that all reasonable efforts to obtain and include the Veteran's relevant medical records in the claims folder have been made. Additionally, the VA has a duty to obtain a medical examination or opinion when such examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012). In this respect, the record reflects that the Veteran did undergo a number of VA medical examinations with the most recent occurring in September 2011. The results from all of the examinations have been included in the claims folder for review. While the representative has argued that the credentials of the examiner who conducted the 2004 VA general medical examination are in question, the Board finds that the representative has not provided any evidence in support of the assertion. There is no evidence of record that would indicate the VA examiner is not competent or qualified to perform the examination. See Cox v. Nicholson, 20 Vet. App. 563 (2007). The examiner reviewed the claims folder, examined the Veteran and provided sufficient information concerning the scar disability at issue. With respect to the other issues, the examiner merely diagnosed disabilities and did not provide etiological opinions, accordingly, additional examinations were ordered. The representative also called into question the qualifications of the examiner who conducted a VA examination concerning the eyes in 2004. As that matter is no longer before the Board, the argument will not be addressed. The July 2011 remand was intended, in part, to clarify certain findings noted by an examiner in February and March 2010. With regard to the right knee disorder, the requested clarification was included in a September 2011 report and October 2011 opinion. Therefore, the Board finds that these reports are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Moreover, the Veteran was given the opportunity to present evidence and testimony before an RO hearing officer and the Board. The Veteran did not avail herself of these opportunities. Nevertheless, the Veteran was given notice that VA would help her obtain evidence but that it was up to the Veteran to inform VA of that evidence. During the course of this appeal, the Veteran has proffered documents and statements in support of her claims. VA has given the Veteran every opportunity to express her opinions with respect to the issues now before the Board and VA has obtained, or attempted to obtain, all known documents that would substantiate the Veteran's assertions. The duty to assist has been satisfied. I. Service Connection The Veteran claims that she incurred hearing loss and right knee disabilities during service. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). When a Veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154; 38 C.F.R. § 3.303(a). Service connection may be awarded where the evidence shows that a Veteran had a chronic condition in service or during an applicable presumptive period and still has the condition. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Certain disorders such as arthritis will be presumed to have been incurred in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. 38 C.F.R. § 3.303(b). The U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) is limited to the chronic diseases listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for disease that is diagnosed after discharge from active service, when the evidence establishes that such disease was incurred in service. 38 C.F.R. § 3.303(d). The Board will address the Veteran's hearing loss and knee claims separately below. Hearing Loss Under VA guidelines, hearing loss will be considered a disability for VA disability compensation purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least 3 of the frequencies 500, 1000, 2000, 3000 or 4000 Hz 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. In this matter, the preponderance of the competent evidence of record indicates that the Veteran did not have a hearing loss disability during service, did not experience a hearing loss disability following service, and does not have a current hearing loss disorder under 38 C.F.R. § 3.385. The Veteran's STRs are negative for a hearing loss disability. The January 1984 discharge medical examination found her hearing to be within normal limits, with auditory thresholds below 15 decibels from 500 to 4000 Hertz. The January 1984 discharge report of medical history indicates no problems with hearing. Moreover, the record contains no evidence of a hearing loss disability in the years following service. The Veteran underwent three VA audiology examinations during the appeal period. None of the examiners found the Veteran with a hearing loss disability. The first examination was conducted in August 2004. The examiner noted scores below 20 in each relevant auditory threshold (between 500 and 4000 Hz), and noted speech recognition scores of 94 percent in each ear. The examination is adequate as the Veteran's hearing acuity was assessed and sufficient information was provided for the Board to determine whether the Veteran has a hearing loss disability. The second examination was conducted in February 2010. The examination indicated normal middle ear status with acoustic reflexes present at normal sensation levels bilaterally. The examiner indicated normal otoscopy bilaterally. But in attempting to gauge specific information regarding auditory thresholds and speech recognition scores, the examiner found that the Veteran's "responses to testing were poor in their reliability." The examiner stated that the "reliability of the Veteran's responses to testing was inadequate for results to be reported." The responses were "inconsistent and demonstrated low test/re-test reliability." The examiner indicated that speech reception thresholds "fluctuated significantly from test to re-test." The examiner did note that the Veteran's hearing was deemed normal during service, and normal in August 2004. The third VA examination was conducted in August 2011. This examiner also found "unreliable pure tone threshold and speech discrimination scores for both ears." The examiner indicated divergence between pure tone thresholds and speech reception thresholds, suggesting "poor pure tone test reliability." In the right ear, the examiner noted the pure tone average to be 30 decibels higher than the speech reception threshold obtained. In the left ear, the examiner noted a 65 decibel difference between pure tone threshold average and speech reception threshold obtained. In sum, the August 2004 report is the only valid audiological testing information of record since service. This examination indicates no hearing disability, and its findings are not controverted by the February 2010 and August 2011 unreliable results. As the Veteran was provided two opportunities after the 2004 examination to have VA examinations and unreliable test results were obtained with no indication that another examination would obtain reliable results, the Board must conclude that she does not have hearing loss that meets the criteria set forth in 38 C.F.R. § 3.385. In the absence of proof of a current disability, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). While the Veteran is competent as a lay person to report that she experiences difficulty hearing, she is not competent to report that she has hearing loss that meets the criteria set forth in 38 C.F.R. § 3.385. As a preponderance of the evidence indicates that the Veteran does not have a hearing loss disability, a service connection finding for bilateral hearing loss is not warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Right Knee By contrast, the evidence of record demonstrates that the Veteran has a current right knee disorder. VA treatment records document treatment for a right knee disorder. The September 2011 VA examination report of record includes a diagnosis of right knee sprain/strain. This report also clarifies evidence of record with regard to the issue of whether the Veteran has arthritis in her right knee. As the examiner noted, an August 2004 VA x-ray examination indicated "minimal degenerative changes" in the Veteran's knees. However, the October 2011 VA examiner found that the Veteran did not have right knee arthritis, citing February 2010 and September 2011 VA x-ray examinations indicating a normal right knee. The examiner explained that the August 2004 x-ray examination results were "overreading by the radiologist" and that subsequent x-rays have not confirmed the August 2004 "abnormal findings." The Board finds the examiner's opinion regarding the absence of arthritis highly probative as the examiner reviewed the history and determined based on multiple radiographic studies that the Veteran does not have arthritis. This outweighs the earlier finding of "minimal degenerative changes" as the examiner explained that in light of subsequent evidence of record, the x-ray examination results were due to "overreading." As such, the evidence of record documents that the Veteran has a current right knee sprain/strain, but not current arthritis. With regard to whether the Veteran injured her right knee during service, the Board notes that the STRs do not indicate an in-service knee problem. Moreover, the January 1984 discharge reports of medical examination and history expressly indicate the absence of a right knee disorder. VA treatment records dated between 1991 and 2004 are negative for a right knee disorder as well. Indeed, the earliest medical evidence of record indicating the presence of a right knee disorder is found in VA records dated in 2004, nearly 20 years following discharge from active duty. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). Furthermore, the only medical professionals to comment on the Veteran's claim to service connection find the right knee disorder unrelated to service. The February 2010 VA examiner, in a March 2010 opinion, stated that the Veteran's right knee disorder (which the examiner characterized as arthralgia) did not relate to service. In support, the examiner indicated that the Veteran experienced no knee injury during service, and that radiographic studies conducted for that particular examination indicated a normal knee. As this opinion did not specifically address the August 2004 findings of degenerative changes, another VA examination was conducted pursuant to the Board's July 2011 remand. The report of that examination, conducted in September 2011, contained similar findings. In the October 2011 addendum opinion, the examiner opined that the Veteran's right knee disorder was not related to service that ended in 1984. In support, the examiner noted the absence of evaluation and treatment of the right knee during service that ended in 1984. The examiner indicated a review of the claims file, and an evaluation of the Veteran, and provided sufficient information for the Board to render an informed determination, accordingly, the examination was adequate. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). In assessing the issue of whether the right knee sprain/strain relates to service, the Board has also reviewed the Veteran's lay statements of record. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Since filing her claim in 2004, the Veteran has consistently asserted that she injured her right knee during service. The Veteran is competent to attest to an injury and symptoms such as knee pain and limitation of motion. These symptoms are observable in nature. However, her statements regarding the etiology of her knee disorder are of limited probative value - her theory regarding the development of a knee disability is not persuasive. The knee disability at issue involves an internal pathology that is beyond the capacity for lay observation. Its etiology and development cannot be determined through observation or by sensation such as feeling. The Veteran is simply not competent to render a medical opinion regarding the way in which the disorder with her knee developed. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). She does not have the training and expertise to provide medical evidence connecting service to the current symptoms regarding a strain or a sprain. This is particularly so in light of the convincing evidence of record that she did not injure her knee in service, and did not have a knee disorder for many years following service. On this essentially medical question, the medical evidence is of greater evidentiary value. And the medical evidence clearly indicates no relationship between the Veteran's service and her knee disorder. In sum, the record demonstrates that the Veteran has a current right knee disorder. However, the preponderance of the evidence of record demonstrates that the current disability is not related to a disease or injury of the right knee during service. The Veteran's knee was assessed as normal upon separation examination in 1984 and the VA examiner's opinion was negative concerning a nexus between current disability and service. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, supra. II. Higher Initial Rating On June 17, 2004, the Veteran claimed service connection for a scar on the left forearm. In November 2004, the disorder was granted service connection at a noncompensable rate effective the date of claim. The Veteran appealed the assigned rating. During the pendency of the appeal, the RO increased the assigned rating to 10 percent, effective September 6, 2011. The Veteran continues to maintain entitlement to higher ratings during the appeal period. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (an appellant is presumed to be seeking the maximum available benefit even where an increase is granted during the appeal period). As such, the Board will consider whether higher initial ratings have been warranted from June 17, 2004, the date of claim for service connection. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (where the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time); see also 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. As discussed further below, the Board finds that staged ratings are warranted in this case. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2012). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 (2012) requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 (2012) requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.7 (2012) provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. An evaluation of the level of disability present also includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2012). The scar on the Veteran's left forearm has been rated under 38 C.F.R. § 4.118, effective June 17, 2004. Rating criteria for scars addressed under this section are found in Diagnostic Codes 7801 through 7805. Diagnostic Code 7801 directs that scars other than on the head, face, or neck that are deep or cause limited motion are evaluated as 10 percent disabling for areas exceeding 6 square inches, 20 percent disabling for areas exceeding 12 square inches, 30 percent disabling for areas exceeding 72 square inches, and 40 percent disabling for areas exceeding 144 square inches. Notes following the rating criteria explain (1) scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of the extremities or trunk, will be rated separately and combined in accordance with 38 C.F.R. § 4.25, and (2) a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. Part 4 (2004). Diagnostic Code 7802 provides that scars other than head, face, or neck scars that are superficial and do not cause limited motion will be rated as 10 percent disabling for areas of 144 square inches or greater. Notes following the rating criteria explain (1) scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of the extremities or trunk, will be rated separately and combined in accordance with 38 C.F.R. § 4.25, and (2) a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. Part 4 (2004). Diagnostic Code 7803 notes that unstable superficial scars are evaluated as 10 percent disabling. Note (1) following indicates that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) indicates that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. Part 4 (2004). The next criteria, under Diagnostic Code 7804, provide that superficial scars that are painful on examination are rated as 10 percent disabling. Note (1) following states that a superficial scar is one not associated with underlying soft tissue damage. Note (2) states that a 10 percent evaluation will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable evaluation (see 38 C.F.R. § 4.68 of this part on the amputation rule). Finally, Diagnostic Code 7805 directs that other scars shall be rated on the limitation of function of the affected part. 38 C.F.R. Part 4 (2004). The relevant evidence pertaining to the Veteran's left forearm scar consists of VA treatment records, VA compensation examination reports dated in August 2004 and September 2011, and a lay statement dated in April 2005. VA treatment records dated from June 2004 to August 2004 do not refer to the left forearm scar. The August 2004 VA examiner diagnosed the Veteran with a left forearm scar measuring 2.5 x 1.25 (without specifying inches or centimeters). The examiner described the scar as stable, hyperpigmented, well healed, flexible, nontender, movable, irregular, without keloid, inflammation, edema, elevation, induration, or depression. The examiner further stated that the scar did not affect motion of the left forearm. VA treatment records dated between June 2004 and September 2011 do not indicate a left forearm scar that is at least 6 square inches in size, or that was painful, unstable, or deep. The September 2011 VA examiner described the scar as stable, superficial, nonlinear, and 2x3 cm (6 square centimeters) in size. The examiner stated that the scar did not affect function in the left arm. But the examiner also noted the scar was sensitive to touch. VA treatment records dated after the September 2011 examination do not indicate a left forearm scar that is at least 6 square inches in size, or that was unstable, or deep. Finally, the Board notes the Veteran's lay assertion in April 2005, that her scar was painful and disfiguring. During the pendency of the Veteran's appeal, the regulations pertaining to the evaluation of skin disabilities were amended. See 73 Fed. Reg. 54708 (effective Sept. 23, 2008). As the RO considered the new criteria in the November 2012 supplemental statement of the case, the Board will also consider whether the Veteran is entitled to a higher rating under these criteria. The changes with respect to Diagnostic Code 7800 pertaining to burn scars, scars, or other disfigurement of the head, face, or neck are not applicable here. Pursuant to Diagnostic Code 7801, scars not of the head, face or neck that are deep and nonlinear and are at least 6 square inches (39 sq. cm.) warrants a 10 percent rating and higher evaluations are warranted for larger scars. Pursuant to Code 7802 pertaining to superficial and nonlinear scars not located on the head, face or neck, if the scar has an area or areas of 144 square inches (929 sq. cm.) or greater, a 10 percent rating is warranted. In this case, the scar is 2.5 x 1.25 which does not meet the requirements for a compensable or higher rating under Codes 7801 and 7802. Code 7804 provides a rating of 10 percent for one or two scars that are unstable or painful. Higher evaluations are available for three or more service-connected scars. If one or more scars are unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Here, one scar is at issue and it was not found to be unstable on examination. Diagnostic Codes 7803 and 7805 were removed. In this case, neither the criteria in effect in 2004 nor the new criteria are more favorable. The preponderance of the evidence of record, dated prior to April 11, 2005, indicates that the Veteran's scar was smaller than 6 square inches in size, was superficial, was stable, was painless, and did not affect the function of the left arm. During the 2004 VA examination, the Veteran reported that she has a scar on the left forearm from falling of her bike in service and that she had no problems with it since it healed. She did not report that the scar was painful in the notice of disagreement. The first indication of record that the scar was painful was her substantive appeal which was received on April 11, 2005. As pain is an observable symptom, and this was objectively confirmed on examination in 2011, the criteria for a 10 percent evaluation for a painful scar are met as of April 11, 2005. However, prior to that date the Board finds the preponderance of the evidence of record is against her claim for a compensable rating. The August 2004 examiner found the Veteran's scar was nontender, while VA treatment records are silent regarding the left forearm scar, and the Veteran did not report the scar was painful. In sum, the evidence dated prior to April 11, 2005, does not show that a compensable rating is warranted under the criteria in effect at that time. As her scar was not deep and was not 144 square inches, a compensable rating is not warranted pursuant to Codes 7801 and 7802. The scar was also not shown to be unstable or painful prior to April 11, 2005, therefore a compensable evaluation pursuant to Diagnostic Codes 7803 and 7804 is not warranted. The first indication of a painful scar is dated April 11, 2005. Prior to that date, the VA examiner found the scar was not painful and the Veteran reported that she had no problems with the scar. Accordingly, a 10 percent evaluation for a painful scar is warranted as of April 11, 2005. The Veteran's report of increased symptomatology was confirmed by the VA examination in 2011, however, it is not the fault of the Veteran that another examination to confirm a worsening of the disorder was not conducted until many years after her statement. Pursuant to the current version of Diagnostic Code 7804, the criteria for a 10 percent rating continue to be met as the one scar that is at issue here is painful. A higher evaluation is not warranted as she does not have three or four scars that are unstable or painful under the current version of Code 7804. The Board further finds that there is no evidence that the manifestations of the Veteran's service-connected left forearm scar are unusual or exceptional to demonstrate that the rating schedule is inadequate for determining the proper level of disability. Furthermore, as there is no indication in the record as to why the Veteran's case is not appropriately rated under the schedular criteria, extraschedular consideration is not warranted in this case since the signs and symptoms of the Veteran's service-connected scar is addressed by the relevant criteria as discussed above. In this regard, it is pointed out that the assignment of a 10 percent schedular disability rating for the scar shows that the Veteran has commensurate industrial impairment. See also, 38 C.F.R. § 4.1 (2012) (noting that the percentage ratings represent as far as can be practically determined the average impairment in earning capacity resulting from service-related diseases and injuries and their residual conditions in civilian occupations). The Veteran's complaints of pain are fully contemplated by the schedular criteria. Therefore, the Board finds that the criteria for submission for an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Thun v. Peake, 22 Vet. App 111, 115-16 (2008). Finally, 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, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether a veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). TDIU may be a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the September 2011 report indicates that the Veteran is employed full time. Moreover, she has not asserted that her left forearm scar has rendered her unemployable. Therefore, TDIU is not raised by the record. In summary, the Board finds that a compensable rating was unwarranted prior to April 11, 2005, and that a rating in excess of 10 percent is not warranted from April 11, 2005. The Board has considered the applicability of the benefit-of-the-doubt doctrine in reaching these conclusions but has determined that the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for a right knee disorder is denied. Entitlement to a compensable initial disability rating, for a left forearm scar, is denied prior to April 11, 2005. Entitlement to a 10 percent rating but no higher, for a left forearm scar, is granted from April 11, 2005. REMAND The Board finds additional medical inquiry warranted into the claim for service connection for a lung disorder. In relevant part, the July 2011 remand requested a determination on whether the Veteran has a current lung disorder and whether such a disorder related to service. In response, the Veteran underwent VA examination in September 2011, for which an opinion was entered into the record in October 2011. The report of examination, and opinion, complied substantially with the Board's July 2011 remand. However, in one crucial respect, the report and opinion are incomplete. The September 2011 examiner clearly finds evidence of chronic obstructive pulmonary disease (COPD) in her September 2011 report, and clearly states that the disorder is unrelated to active service. Moreover, the examiner supported her opinion with a rationale. However, the examiner did not offer an opinion regarding the other lung disorder evidenced by her examination - the left hilar lymph nodes - as found by September 2011 x-rays. An opinion regarding whether this particular disorder relates to service is still necessary. As such, additional medical inquiry is still warranted in this matter. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Consequently, the Board regrettably must again remand this case. With regard to the claim for sleep apnea, the Board finds the issue inextricably intertwined with the service connection claim for a lung disorder. See Smith v. Gober, 236 F.3d. 1370 (Fed. Cir. 2001) (separate claims are adjudicated together when they are "intimately connected"); Harris v. Derwinski, 1 Vet. App. 180 (1991) (when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together). As such, the service connection claim for sleep apnea should not be decided until the service connection claim for a lung disorder has been resolved. Accordingly, the case is REMANDED for the following action: 1. Include in the claims file any VA treatment records dated after November 2012. 2. The Veteran's claims folder should again be made available to the September 2011 VA examiner for review and elaboration of her October 2011 opinion. The examiner is asked to address the following: Is it at least as likely as not (a probability of 50 percent or greater) that the Veteran's left hilar lymph nodes began in or are related to active service? Please provide a complete explanation for the opinion. A complete rationale for each opinion offered must be included in the report, and an explanation of the medical principles involved would be of considerable assistance to the Board. If the September 2011 VA examiner is unavailable, then the requested opinions should be obtained from another appropriately qualified clinician. If a new examination is deemed necessary, then one should be provided. 3. Thereafter, the AMC/RO should review the claims folder to ensure that the foregoing requested development has been completed. In particular, the AMC/RO should review the examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, the AMC/RO should implement corrective procedures. 4. After completing any additional development deemed necessary, the AMC/RO should readjudicate the two remaining issues on appeal - service connection for a lung disorder and service connection for sleep apnea - in light of any additional evidence added to the records assembled for appellate review. 5. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran should be furnished a SSOC, which addresses all of the evidence obtained after the issuance of the last SSOC in November 2012, and provided an opportunity to respond. 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). _________________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs