Citation Nr: 1327171 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 10-04 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a bilateral lower extremity disability, to include shin splints and compartment syndrome. 2. Entitlement to service connection for a neck disability, to include cervical strain and disc herniation. 3. Entitlement to service connection for a back disability, to include thoracic strain. 4. Entitlement to service connection for a bilateral hearing loss disability. 5. Entitlement to an initial disability evaluation in excess of 10 percent for service-connected right shoulder strain. 6. Entitlement to a compensable initial disability evaluation for acne. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active commissioned service in the United States Marine Corps from October 2004 to October 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran's claims file, to include the portion contained in the electronic Virtual VA system, has been reviewed. FINDINGS OF FACT 1. The Veteran was diagnosed with his current bilateral shin splints/compartment syndrome in active military service. 2. The Veteran was diagnosed with his current cervical strain in active military service; his persistent symptoms since service have also been causally linked to current disc herniation in the cervical spine. 3. The Veteran was diagnosed with his current thoracic strain in active military service. 4. The Veteran does not currently experience a bilateral hearing loss disability for VA purposes. 5. The Veteran's right shoulder strain is not productive of limitation of motion to any degree, and there is no impairment in the humerus, clavicle, or scapula; the strain manifests with some pain, lack of endurance, weakness, and fatigability after physical exertion. 6. The Veteran experiences acne that is not deep (is superficial) on parts of his face and the back of the neck/scalp; the acne is not disfiguring and has not produced scarring. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral lower extremity disability, to include shin splints/compartment syndrome, have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for service connection for a neck disability, to include cervical strain and disc herniation, have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 3. The criteria for service connection for a back disability, to include thoracic strain, have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 4. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 5. The criteria for a disability rating in excess of 10 percent for right shoulder strain have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5024, 5200-5203 (2012). 6. The criteria for a compensable initial disability evaluation for acne have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.118, Diagnostic Code 7828 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Applicable law provides that service connection will be granted if it is shown that the Veteran experiences a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran has been diagnosed with shin splints/compartment syndrome, thoracic strain, and cervical strain/disc herniation, and he has claimed that a bilateral hearing loss disability is present. Other organic diseases of the nervous system (which would include bilateral hearing loss) are listed as a "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies to that claim. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). The assessed neck, back, and lower extremity disabilities (shin splints/compartment syndrome) are not, however, "chronic diseases" under the meaning of the regulation. Certain chronic conditions, such as other organic diseases of the nervous system (hearing loss), if manifest to a compensable degree within the first post-service year, will be presumed to have been incurred in active service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309 (2012). Bilateral Lower Extremity Disability/Neck Disability/Back Disability The Veteran contends that he developed current "shin splints" in the bilateral lower extremities, a neck disability, and a thoracolumbar spine disability, as a result of his active service in the Marines between 2004 and 2008. Specifically, he attributes his injuries to running during Officer Candidate School (OCS) and to a weightlifting injury experienced in service. In this regard, Congress has specifically limited entitlement to service connection for disease or injury to cases where such have resulted in a disability. 38 U.S.C.A. § 1110. Thus, in the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The United States Court of Appeals for Veterans Claims (Court) has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly affirmed by the United States Court of Appeals for the Federal Circuit (Federal Circuit), which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The service treatment records do show that the Veteran was assessed as having shin splints when he was an Officer Candidate in 2004. There are other clinical assessments of shin pain occurring throughout active duty, to include a June 2005 medical assessment of "shin pain triggered by running." In August 2008, the Veteran was afforded a separation examination, and he noted that he had been treated several times for shin splints with a "prognosis of compartment syndrome" having been relayed to him. The physician's assistant (PA) who conducted the examination assessed the Veteran as having bilateral shin splints with compartment syndrome. Upon separation, the Veteran was afforded a VA examination in May 2009. In the associated report, the Veteran's in-service shin splints were noted, and the Veteran relayed that he still experienced pain as a consequence of this condition. The Veteran reported pain being elicited upon physical activity, and that medication is needed to help when he is experiencing pain in the lower extremities. He reported taking 800mg of Motrin, with some episodes requiring up to 3200 mg. The Veteran ices, stretches, massages, and does exercises to help with the pain. The VA examiner took X-rays of the bilateral lower extremities, and noted that the impression was normal. Based on this, it was concluded that no pathology was present to establish a diagnosis. On this basis, the RO denied the claim. The Veteran had been diagnosed with bilateral shin splints with compartment syndrome in 2008, and a review of the service treatment records indicates that at the time this was first assessed in 2004, radiographic evidence also showed a normal impression of the legs. From this, it can be concluded that despite this lack of radiographic evidence, service medical personnel still determined that the Veteran experienced shin splints, and it is evident that the pain in his legs persisted throughout his time in the Marines. There was no determination of a recovery from this condition according to the diagnosis made at the 2008 service separation examination. Essentially, the Board notes that the Veteran was diagnosed with bilateral shin splints/compartment syndrome on active duty, and that he had consistent pain in the legs throughout his service. At separation, the bilateral shin splint/compartment syndrome diagnosis was confirmed, and the Veteran has reported symptoms post-service that are similar to those associated with the diagnosed condition during his active duty service. The 2009 examination did not adequately review the in-service history, and there is nothing of record to indicate that the diagnosis established in service has remitted. Thus, the Board concludes that bilateral shin splints/compartment syndrome was first diagnosed in service and is currently present. Accordingly, the claim is granted. With respect to the neck and back claims, the Board notes that the Veteran did not report any difficulty with his spine upon entry into active duty. In April 2008, the Veteran was engaged in weightlifting, and he reported to service medical personnel after experiencing pain in the neck and mid-back while doing a military press exercise. The back was noted to be tender at that time, and muscular strain for both areas was assessed. In a military clinical note of April 2008, the Veteran was diagnosed with thoracic strain and cervical strain, and it was explained at that time that X-rays were not necessary as there was no suspected involvement of the bones in the spine. The Veteran reported experiencing cervical strain and back pain at his separation physical examination, and this was assessed by the examining PA. In the same May 2009 VA examination as noted above, the Veteran was found to not have pathology in the neck or back, as radiographs were within normal limits. Simply, the examiner determined that there was no diagnosis available for any current back or neck disability. As with the shin splints, the examiner recorded the Veteran's complaints of in-service injury and subsequent pain; however, save for reviewing X-rays, the examiner did not discuss the in-service diagnoses of cervical strain and thoracic strain as related to the April 2008 lift injury. In December 2011, the Veteran's pain in his lower neck and upper back was severe enough for him to seek out treatment from a private orthopedist. It was initially noted at that time that "X-rays were obtained which showed no bony pathology," and it was encouraged that the Veteran engage in more thorough exercises for his back. Following this, in February 2012, the Veteran was eventually scheduled for magnetic resonance imaging (MRI) studies, which revealed disc herniation at C5-C6 which were "consistent with the Veteran's symptoms." Essentially, the Board notes that the Veteran was diagnosed with thoracic and cervical strain in 2008 prior to separation from service, and the military provider noted that radiographs were not necessary, as strain involves muscle impairment and does not have associated bony abnormality that can be detected by X-ray. The 2009 examination, which relied on a lack of X-ray evidence as a determination that disablement was not present, is thus not probative. See Nieves-Rodriguez v. Peake at 295. There is, in fact, no probative indication that the cervical and thoracic strains diagnosed in service have ever remitted, and a physician has recently noted that further disability in the neck (i.e. bony abnormality [disc herniation]) has developed as something that is consistent with the reported symptoms. Accordingly, the Board can conclude that cervical strain and thoracic strain were diagnosed in service, have not remitted, and that cervical disc herniation has been related by a medical professional to the neck symptoms experienced since service discharge (such an assessment was based on a long-standing treatment history with the Veteran, and a noted failure of X-ray technology to obtain the most current diagnosis). There is nothing of significant probative value to contradict this, and accordingly, the claims for service connection for neck and back disabilities will be granted. The nature and extent of these problems is not before the Board at this time. Bilateral Hearing Loss Disability The Veteran contends that he experiences a bilateral hearing loss disability as a result of his active service in the Marine Corps. As noted in the section of this decision pertaining to the claimed orthopedic disabilities, for claims for service connection, it is first and foremost a requirement that a current disability be present. See Brammer at 223. The Board also recognizes that the Court has held that the presence of a disability at any time during the claim process can support a grant of service connection if there is a relationship to service, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, where, as discussed below, there is no evidence of a hearing loss disability during the claim period, that holding is inapplicable. Service connection for impaired hearing is subject to the requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See also Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran was afforded audiograms in service in both June 2005 and prior to his separation from service in August 2008. While it is not clear as to if the Maryland CNC Test was utilized, there was nothing in the service treatment records to indicate any depreciation of hearing. The Veteran was afforded a VA audiology examination in May 2009, and at that time, the Veteran stated that he was exposed to small arms fire in service, and that he had a problem with his eardrum when he went SCUBA diving in Okinawa. Objective testing via an air conduction test revealed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 0 0 -5 LEFT 20 15 0 5 0 Speech audiometry revealed speech recognition ability (Maryland CNC) of 100 percent in the right ear and 100 percent in the left ear. The VA examiner concluded that the air conduction study was the most ideal way to assess hearing loss. The examiner concluded that "the examination reveals no hearing problems." The Veteran has not stated that he has noted any hearing depreciation since the time of his examination in 2009, and there is no other evidence of treatment for hearing complaints of record. In essence, the only evidence supportive of the Veteran's claim that he experiences a hearing loss disability related to active service consists of the statements of the Veteran himself. The Board acknowledges that the Federal Circuit has suggested that laypersons perhaps can establish the required nexus to service in some cases. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (vacating and remanding a decision in which the Court categorically held in a service connection case that "'a valid medical opinion' was required to establish nexus, and that [a lay person] was 'not competent' to provide testimony as to nexus because [that individual] was a layperson."). However, the Court has also held that a layperson, such as the Veteran, is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated that lay evidence is competent and sufficient in certain instances related to medical matters. Specifically, the Federal Circuit commented that such instances include establishing a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Id. Similarly, the Court has held that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran, in opining that he has a current hearing loss disability within the meaning of 38 C.F.R. § 3.385, and his assertion that such a disability is related to noise exposure and/or recreational diving in service, is making an assertion that is "medical in nature." While the Veteran is competent to report that he has noticed some hearing difficulties since separation from service, he has not shown that he has the requisite medical knowledge to diagnose a hearing loss disability or to offer an opinion regarding etiology. Simply put, the competent and credible evidence of record establishes that the Veteran has normal hearing, and does not experience a hearing loss disability for VA purposes. Given that the Veteran was a Marine officer, there is no doubt that he was exposed, at least to some degree, to loud noises in service; however, without the establishment of a diagnosis, the most basic element of a claim for service connection is not met. Accordingly, the claim must be denied. Initial Ratings-General Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should 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. See 38 C.F.R. § 4.7. In determining the disability evaluation, VA has a duty to consider all possible regulations which may be potentially applicable based upon the assertions and issues raised in the record. After such a consideration, VA must explain to the Veteran the reasons and bases utilized in the government's decision. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). For claims for increased rating which arise out of an initial grant of service connection, the Board must consider the application of "staged" ratings for different periods from the filing of the claim forward, if the evidence suggests that such a rating would be appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). Here, the disabilities at issue have not significantly changed and a uniform evaluation is warranted for each condition. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. Right Shoulder The Veteran was awarded service-connected compensation benefits for right shoulder strain in a July 2009 rating decision. A 10 percent disability evaluation was assigned at this time, and the Veteran posited a timely disagreement with this rating. Essentially, he contends that his right shoulder strain is more severe than what is contemplated by the assignment of a 10 percent rating. At the Veteran's separation examination of August 2008, he reported having had a right shoulder injury that required physical therapy. The Veteran complained of numbness after extreme activity that would last for several weeks. At that time, a possible labrum tear was assessed. In May 2009, following separation, the Veteran was afforded a VA examination to assess the severity of his right shoulder. The Veteran's range of motion was within normal limits, although some pain was noted. Radiographic studies were within normal limits, the Veteran was not diagnosed with arthritis, and there was no swelling, heat, "giving way," "locking," or dislocation associated with his condition. The Veteran reported having "clicks" in his shoulder, and he stated that he never had surgery for his disability. There was no functional impairment associated with the condition, the Veteran reported that he was never hospitalized for right shoulder problems, and the pain was managed by medication, exercise, and therapy. Weakness, stiffness, fatigability, and lack of endurance were reported, and the examiner noted that weakness and numbness would be present after long periods of activity. The Veteran was diagnosed with right shoulder strain. While this examination was over four years ago, the Veteran has not asserted that his condition has grown in severity since that time; rather, he simply disagrees with the assignment of the 10 percent rating. The Veteran's representative has noted that the last examination was four years ago, and has taken exception to this; however, there was no accompanying allegation that the Veteran's shoulder has increased in severity since the 2009 assessment. The age of an examination, in itself, is not a sufficient reason to remand a claim. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Hyder v. Derwinski, 1 Vet. App. 221 (1991). Rather, the Board must assure that it has an accurate understanding of the disability picture so as to make an informed decision. In this case, there are no additional medical records documenting treatment for his right shoulder, and based on this and the lack of an allegation of worsening, the Board is satisfied that it has the most accurate impression of the current disability picture despite the age of the last examination. The Board notes that there are no rating criteria specifically applicable to shoulder strain, and thus, it is necessary to rate the Veteran via an analogous provision. Currently, the Veteran is evaluated under Code 5024, which pertains to tenosynovitis. As this describes a soft tissue impairment similar to the one experienced by the Veteran, the Board concedes that a rating under such analogous criteria is appropriate. It is noted that he Veteran has not demonstrated that he experiences ankylosis in his shoulder joint, and has not shown impairment in the scapula, clavicle, or humerus, and accordingly, a rating under criteria addressing these manifestations is inappropriate. See 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203. Diagnostic Code 5024 directs that the disease be rated on limitation of motion of the affected parts, as arthritis, degenerative. See 38 C.F.R. § 4.71a, Diagnostic Code 5024. In rating arthritis under Code 5003, it is pertinent to note that should there be limitation of motion in the affected joint that is compensable under joint-specific criteria, that is that that specific criteria that should be used in establishing a rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. In the current case, the Veteran has no limitation of motion at all, and thus, there is no compensable limitation available under joint-specific guidelines. See 38 C.F.R. § 4.71a, Diagnostic Code 5201. When, as in this case, there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive (emphasis added). Id. That is, as in the current case, where Code 5024 is the most appropriate, the requirement for X-ray confirmation of arthritis is not necessary; rather, it is enough to note the involvement of affected joint groupings which produce limitation of motion to a degree less than what would be compensable under joint-specific guidelines. Simply put, the Veteran has not shown that he has any limitation of motion in his right shoulder joint, and thus, there is no entitlement to a 20 percent evaluation under the applicable schedular criteria. The assigned 10 percent rating does, however, take into account the reported pain, fatigue, weakness, and lack of endurance assessed during the 2009 VA examination, and accordingly, is the appropriate rating for the service-connected disability picture. See DeLuca at 202. Without taking into consideration the Veteran's complaints of pain, there would be no basis for the current findings, let alone a higher rating. With regard to potential extraschedular entitlement, the Board notes that there was no functional impairment assessed in the right shoulder joint at the Veteran's VA examination, and that there is nothing so unique as to take the disability picture outside the norm. That is, there is nothing of record to suggest that the schedular 10 percent rating currently assigned does not fully contemplate the severity of the right shoulder disability, and thus the claim will not be referred to the Director of VA's Compensation Service for consideration of an extraschedular award. See Thun v. Peake, 22 Vet. App. 111 (2008). Acne Service connection for acne was awarded in a July 2009 rating decision; however, the disability was not thought to be severe enough to warrant the assignment of a compensable rating. The Veteran posited a disagreement with this, and contends that his acne is of a more severe nature. At the Veteran's separation examination in August 2008, he reported episodes of "break out" numerous times while on active duty. An October 2006 treatment note included a diagnosis of acne with topical medications prescribed to treat the condition. At the May 2009 VA examination, it was noted that the Veteran used topical creams twice daily for a four-week period, and that acne with possible rosacea had been present for the last four years. Rosacea was present, and it was described as very mild in nature by the examiner, providing evidence against this claim of high probative value. There was no ulceration, exfoliation, crusting, disfigurement, tissue loss, induration, inflexibility, pigmentary changes, abnormal texture, or limitation of motion upon examination; however, the examiner did note a history of some crusting and the presence of exudation forehead with itching. No scars were noted. The Veteran had 290 episodes of acne flare-ups over the last year according to his account; however, there was no functional impairment associated with the condition. The examiner determined that the coverage of skin lesions was zero percent of exposed areas and one percent relative to the entire body. The impression was acne. Similar to the claim for an increase regarding the right shoulder disability, the May 2009 VA examination report is the most recent record documenting the severity of the Veteran's acne condition. Also similar to the right shoulder claim, the Veteran has not alleged a worsening in severity of his symptoms since this time. The Veteran's representative has noted that four years have passed since the affording of the last VA examination; however, this statement was not accompanied by any indication or allegation that the service-connected acne had increased in severity since the time of the last examination. It was also not accompanied by any allegation of further treatment for the condition, and essentially, the Board is satisfied that the findings of the 2009 examiner represent the current status of the acne disability despite being four years old (the age of an examination, without indication of a change in the level of disability, is not a sufficient reason to remand). See Green at 121. Under Diagnostic Code 7828, which pertains to acne, a noncompensable or zero percent rating is for application for superficial acne (comedones, papules, pustules, superficial cysts) of any extent. A 10 percent evaluation is assigned for deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the face and neck, or; deep acne other than on the face and neck. A 30 percent evaluation is assigned for deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck. There is no available schedular evaluation for acne greater than 30 percent. See 38 C.F.R. § 4.118, Diagnostic Code 7828. Code 7828 instructs that acne may be rated under alternate codes for disfigurement of the head, face, or neck (Code 7800), or scars (Codes 7801, 7802, 7803, 7804, 7805), depending upon the predominant disability. As the Veteran has not been found to exhibit disfigurement or scarring, a rating under the specific provisions of Code 7828 is most appropriate in the current case. Id. Essentially, the evidence shows that Veteran has acne on the back of the neck and face that is recurrent in nature, and that is not deep. Indeed, the Veteran has never been assessed as having deep inflamed nodules or pus-filled cysts, and there has been only some itchiness with a history of occasional crusting assessed. The Board can thus conclude, given the evidence of record and the requirements for a higher initial rating, that the Veteran experiences superficial acne, and that the assignment of a compensable rating is not warranted at this time. Accordingly, the claim for an increase must be denied. The Veteran simply does not meet the criteria for the compensable rating based on the best evidence. As with the right shoulder disability, there is nothing so unique in the service-connected disability picture so as to take it outside the norm. Indeed, the noncompensable rating fully contemplates the severity of the Veteran's acne, and the claim will not be remanded for a referral to the Director of VA's Compensation Service for consideration of an extraschedular rating. See Thun at 111. Benefit of the Doubt With regard to the claim for entitlement to service connection for a bilateral hearing loss disability and for higher initial ratings for right shoulder strain and acne, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable for these claims because the preponderance of the evidence is against them. 38 U.S.C.A. § 5107(b); see also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claims for service connection for a bilateral hearing loss disability and his claims for higher initial ratings. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Compliance with the first Quartuccio element requires notice of the five service connection elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a); see also Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). It is pertinent to note that the Veteran is represented by Disabled American Veterans (DAV), and that organization is presumed to have knowledge of what is necessary to substantiate claims for service connection and for higher initial ratings. Neither the Veteran nor his representative have pled prejudicial error with respect to the content or timing of VCAA notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding VA's duty to assist the Veteran in obtaining evidence needed to substantiate his claims, the Board finds that all necessary assistance has been provided in this case. With regard to the claims for service connection for bilateral lower extremity, neck, and back disabilities, the decision above represents a full grant of the benefits sought, and hence any potential defect with regard to notice is moot. With respect to the claims denied in the above decision, the Board notes that the evidence includes service treatment records and post-service pertinent medical records. Furthermore, the Veteran has been afforded comprehensive VA audiology, skin, and joint examinations which addressed his claimed conditions. The audiology examination did not find a current hearing loss disability for VA purposes, and the severity of the Veteran's acne and right shoulder disability were fully discussed (and the Veteran has not alleged a worsening of severity since that time, despite the findings being four years old). Thus, there is no indication of any additional relevant evidence that has not been obtained. There is no duty to provide another examination or a medical opinion. See 38 C.F.R. §§ 3.326, 3.327 (2012). ORDER Entitlement to service connection for a bilateral lower extremity disability, to include shin splints and compartment syndrome, is granted. Entitlement to service connection for a neck disability, to include cervical strain and disc herniation, is granted. Entitlement to service connection for a back disability, to include thoracic strain, is granted. Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to an initial disability evaluation in excess of 10 percent for service-connected right shoulder strain is denied. Entitlement to a compensable initial disability evaluation for acne is denied. ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs