Citation Nr: 1327945 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 09-15 188A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to a higher rating (evaluation), greater than 10 percent for residuals of a shell fragment wound of the left forearm. 5. Entitlement to a higher rating (evaluation), greater than 10 percent for residuals of a shell fragment wound of the left upper back. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from August 1965 to October 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2008 and August 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In its 2008 decision, the RO denied service connection for right and left knee disabilities, and hearing loss. The Veteran appealed the denials of service connection. In its 2010 decision, the RO denied the Veteran's claims for increased ratings for shell fragments wounds of the left forearm and upper back; the Veteran appealed these denials. The matters are now before the Board. A review of the Virtual VA paperless claims processing system reveals some treatment records which relate to treatment of hearing loss and the Veteran's left forearm and upper back scars. These records have been considered as part of the Veteran's claim and are discussed accordingly below. The most recent Supplemental Statement of the Case (SSOC) was issued in November 2010 and the case was certified to the Board in November 2011. Since that time, additional records have been added to the claims file via the Virtual VA system, including medical treatment records and a May 2013 waiver of initial consideration by the Agency of Original Jurisdiction of the newly added evidence. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran engaged in combat with the enemy during service. 2. The Veteran injured his knees during service. 3. Bilateral knee symptomatology has been continuous since service. 4. The Veteran's current bilateral knee disability was incurred during service. 5. The Veteran was exposed to loud noise (acoustic trauma) during service. 6. The Veteran's bilateral hearing loss was incurred during service. 7. Throughout the entire initial rating period, residual shell fragment wound of the left forearm have been productive of a painful scaring. 8. Throughout the entire initial rating period, residual shell fragment wound of the left upper back have been productive of a painful and unstable scar. CONCLUSIONS OF LAW 1. Bilateral knee arthritis was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 1153, 1154 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a) (2012). 2. Bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 1153, 1154 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a) (2012). 3. The criteria for a rating in excess of 10 percent for residual shell fragment wound of the left forearm have not been met at any time during the rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.118, Diagnostic Code 7804 (2012). 4. The criteria for a rating in excess of 10 percent for residual shell fragment wound of the left upper back have not been met at any time during the rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.118, Diagnostic Code 7804 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties 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); 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 and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). VCAA notice should 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). For an increased-compensation claim, the US Court of Appeals of Veterans Claims (the Court) has held that § 5103(a) required, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). In this case, the RO provided a VCAA notice letter to the Veteran in May 2010, prior to the initial adjudications of the increased rating claims on appeal. The letter notified the Veteran of what information and evidence must be submitted to substantiate the claims, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claims to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Based on the foregoing, timely and adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . or all [Social Security Administration] disability records must be sought - only those that are relevant to the veteran's claim"). In this case, service records have been obtained, as have records of private and VA treatment. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issues before the Board. On VA examination in July 2008, the Veteran indicated that he was receiving Social Security Administration (SSA) benefits due to his age. The Veteran has not indicated that SSA benefits are related to any of the claimed issues on appeal, and thus VA does not have a duty to seek such records. The Veteran was afforded VA examinations in August 2008, July, 2009, November 2009, and June 2010. During each of these examinations, the examiners conducted physical examinations of the Veteran, took down the Veteran's history, considered the lay evidence presented, laid factual foundations for the conclusions reached, and reached conclusions and offered opinions based on history and examination that are consistent with the record. In the case of June 2010 scar examination, as well as August 2008 audio examination, the VA examiners were not provided the Veteran's claims file for review. Nonetheless, in each case an accurate history was elicited from the Veteran regarding his history of left forearm scaring, upper back scaring, and hearing loss. See VAOPGCPREC 20-95 (interpreting that in some cases an accurate history by a veteran may be a valid basis for an examination report rather than claims file review); see also Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran). Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions regarding the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the Veteran's statements in support of the claims are also of record. The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of these claims have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). With regard to the Veteran's claims for service connection, the benefits sought are granted. Thus, to the extent that there has been any deficiency in VA's notice or assistance to the Veteran, the matter of such deficiency is moot. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran has been diagnosed with degenerative joint disease of the knees (e.g. arthritis) and sensorineural hearing loss (an organic disease of the nervous system). Both arthritis and organic diseases of the nervous system are "chronic diseases" which are listed under 38 C.F.R. § 3.309(a); therefore the presumptive provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. In order to show a "chronic" disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required in order to establish entitlement to service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, including arthritis and organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Pertinent to the immediate appeals, changes in hearing acuity and knee pain are both symptoms which are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. A layperson is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "[i]t is clear that 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. Service Connection for a Bilateral Knee Disability The Veteran has contended that he hurt his knees during a helicopter assault in 1967. Specifically, he states that his knees were injured jumping from a helicopter during a combat operation in Vietnam, and that his knees have hurt continuously ever since. A July 2008 statement from the Executive Officer (EO) of the Veteran's battalion during his active duty in Vietnam indicated that the unit was involved in fighting around the Demilitarized Zone (DMZ), and that the unit's rifle companies in particular were constantly moving. In an August 2008 statement from a Marine who served with the Veteran, the Marine stated that he witnessed the Veteran limping following an ambush sometime between July 28 and July 30. Also received in August 2008 was an additional statement from a Marine who served with the Veteran and was with him when the unit was forced to jump out of helicopters into an active combat zone from a height of 15 to 20 feet. The Veteran has submitted excerpts from the memoir of a Marine who was involved in an ambush near the DMZ July 1967, as well as contemporary newspaper articles describing the event. The Board finds that the Veteran injured his knees in service. The Veteran's service records indicate that his primary specialty was that of rifleman, and that he received the Combat Action Ribbon, among other recognitions, which is indicative of combat service. Pursuant to 38 U.S.C.A. § 1154(b), with respect to combat veterans, VA shall accept as sufficient proof of service-connection satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions and hardships of such service. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. See also 38 C.F.R. § 3.304(d). To the extent that the Veteran's description of jumping from a helicopter at 15 to 20 feet, into an active combat situation is consistent with the circumstances, conditions and hardships of his service, the Board accepts the Veteran's description of such event, and that he injured his knees during service. 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522- 23 (1996). 38 U.S.C.A. § 1154(b) does not establish service connection for a combat veteran; it aids him or her by relaxing the adjudicative evidentiary requirements for determining what happened in service. See Wade v. West, 11 Vet. App. 302, 305 (1998) (holding that "a combat veteran who has successfully established the in-service occurrence or aggravation of an injury pursuant to § 1154(b), must still submit sufficient evidence of a causal nexus between that in-service event and his or her current disability"). A veteran (or in this case, the appellant) must still generally establish the claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996). Service treatment records are silent to any in-service complaints referable to the knees and at separation the Veteran's lower extremities were normal. Private treatment records from August 2007 confirm the diagnosis of arthritis of the knees, with lower extremity weakness. X-ray imaging conducted at a VA facility in September 2008 revealed a possible old fracture deformity of the right proximal tibia and sclerotic densities bilaterally in the lateral femoral condyles as well as the medial femoral condyle of the right knee. These represented possible old bone infracts. A November 2008 letter from Dr. I.I. indicated that the Veteran has severe chronic bilateral knee arthritis, which impairs his ability to walk. On VA treatment in January 2009, the Veteran endorsed worsening knee pain and arthralgias, and the VA physician indicated that the Veteran could not return to work due to his knees. A January 2009 letter from a VA physician indicated that the Veteran had reported progressively worsening bilateral knee pain since jumping from a helicopter in service. The physician opined that X-ray imaging confirmed arthritic changes in the knees with a possible old fracture of the right tibia. She went on to conclude that the Veteran was permanently disabled due to his knee condition and was unable to return to any form of employment. On VA examination in November 2009, the Veteran stated that he first began having knee pain in 1967 following a 15 foot jump from a helicopter into a "hot zone." Imaging showed bilateral sclerotic densities of the distal femurs, which may represent bony infarct. There was also decreased joint spaces in each knee, though more severely in the right knee. The right knee showed a questionable previous fracture deformity at the right tibia. The examiner conducted a physical examination and functional impairment assessment of the Veteran's knees and diagnosed bilateral degenerative joint disease of the knees. The examiner concluded that the Veteran's bilateral knee disorder was most likely not related to service. Specifically the examiner opined that the most significant knee condition was degenerative in nature and that the majority of this was believed to have accumulated within the preceding four years. In reaching this opinion, the examiner relied on the Veteran's service treatment records' lack of any record of in-service history of knee pain. The Board finds that the Veteran's bilateral degenerative joint disease of the knees is related to service. The Board has already found that the Veteran injured his knees in service. The Veteran's endorsement of continuous knee pain since his in-service jump from a helicopter is competent. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board further finds such endorsement credible. While the Veteran's service separation examination does indicate that the Veteran's lower extremities were normal, the Board nonetheless must weigh this single piece of evidence against the Veteran's otherwise credible endorsement of continuous symptomatology. Further bolstering the Veteran's claim is radiographic evidence of possible old knee fracture and bony infracts. Based on the competent history given by the Veteran, the only traumatic knee injury he has had was the helicopter jump he has described. In light of the lack of evidence suggesting otherwise, the Board is left to conclude that any old fracture seen on X-ray is more likely than not due to his in-service knee trauma. In considering the lay history detailed above, the Board notes that the amount of time that elapsed between military service and first post-service evidence of complaint or treatment can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). However, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board finds that the Veteran injured his knees during service when jumping from a helicopter, has had continuous symptoms ever since the injury, and currently has a bilateral knee disability. Accordingly, resolving doubt in the Veteran's favor the Veteran's bilateral knee disability is presumed to have been incurred in service, and service connection is established. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.309(a). Service Connection for Hearing Loss The Veteran is claiming entitlement to service connection for hearing loss which he contends began following the explosion of a mortar round during service, in 1967. The Board notes that the Veteran is service connected for left upper extremity wounds associated with a mortar shell explosion. For the purposes of this claim, the threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. Service treatment records do not reflect any complaints referable to the ears or hearing, and at separation examination, no audiometric data was recorded. On VA examination in August 2008, the Veteran denied any civilian noise exposure, and endorsed tinnitus as having begun following the above-described mortar round explosion in 1967. During his audio examination, the examiner noted that behavioral responses to pure tones thresholds appeared between 30 and 50 dB, and were not adequate for rating. The examiner also noted that the Veteran's responses to Maryland CNC wordlist testing were unusual, unpredictable, and not representative of his communication ability as the Veteran had no problems during the interview. The examiner stated that she could not determine whether the Veteran's hearing loss was related to service without resort to mere speculation as there was no audiogram data from the Veteran's service separation examination. On audiological evaluation in May 2009, conducted at a private facility on behalf of VA, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 4000 6000 RIGHT 55 60 55 50 55 LEFT 50 60 55 60 50 The evaluation report indicated that the Veteran was difficult to test as he would not respond to some sounds which were audible to him. The assessment was bilateral moderately severe sensorineural hearing loss. On VA examination in June 2009, audiological evaluation in pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 25 35 45 LEFT 20 15 20 35 35 Speech audiometry using the Maryland CNC word list was described by the VA examiner as too unreliable to score. She went on to report that the Veteran continued to provide unusual responses to CNC stimulus words, and the scores recorded were not predictive of his communication ability. The diagnosis was mild to moderate sensorineural hearing loss in the right ear, and mild sensorineural hearing loss in the left ear. The examiner again indicated that she could not determine whether the Veteran's hearing loss was related to service due to a lack of audiogram at separation. While the Veteran's June 2009 audiometric evaluation indicates that left ear hearing loss did not reach the level of a disability for VA purposes, the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). To that end, the Board notes that on audiometric testing in May 2009, the Veteran's hearing loss in both ears more than satisfied VA's criteria for disabling hearing loss. See 38 C.F.R. § 3.358. The Board finds that bilateral hearing loss is presumed to have been incurred in service. The Veteran's account of a mortar explosion followed by onset of hearing loss is consistent with the circumstances, conditions and hardships of his service as a rifleman in an active combat zone. Thus, in light of no clear and convincing evidence to the contrary, the Board accepts the Veteran's account of in-service onset of hearing loss. 38 U.S.C.A. § 1154(b). The Veteran is competent to testify regarding hearing acuity, and thus his endorsements of continuous hearing loss since service are also competent. Layno, 6 Vet. App. 465. Furthermore, to the extent that the Veteran has been consistent in his endorsements of continuous hearing loss, the Board finds the Veteran to be credible. To the extent that the Veteran did not seek treatment for hearing loss until many years after service, the Board reiterates that lay evidence does not lack credibility merely because it is unaccompanied by confirmatory medical evidence. See Buchanan, 451 F.3d at 1337. With regard to VA examinations in May and June 2009, the Board finds the conclusions of the VA examiner to be of no probative value. The examiner's final conclusions seem to indicate that because of the lack of audiometric testing at service separation, she was unable to state whether the Veteran's sensorineural hearing loss was due to or related to service. However, a lack of audiometric results showing hearing disability per VA standards during service is not a bar to service connection when post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Accordingly any conclusion, or lack of conclusion, based on the lack of audiometric testing at service separation, is of no probative value. In total, the Board finds that the Veteran had an in-service injury related to his hearing, and has had symptoms ever since. Resolving doubt in the Veteran's favor service connection for bilateral hearing loss is established and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.309(a). Increased Ratings for Left Forearm and Upper Back Scars Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran was previously awarded service connection and assigned initial disability ratings for both scars on appeal in a rating decision of October 1998. On a claim for increased rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found; such separate disability ratings are known as staged ratings. In Hart v. Mansfield, the Court extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." Hart v. Mansfield, 21 Vet. App. 505, 511 (2007). Here, as the evidence discussed below shows, the disabilities have not significantly changed and uniform evaluations are warranted. In the August 2010 rating decision on appeal, the Veteran's 10 percent ratings for residual shell fragment wounds of the left forearm and left upper back (shoulder) were continued, effective August 15, 2008. The Veteran's scars are rated under 38 C.F.R. § 4.118, Diagnostic Code (DC 7804), which provides for a 10 percent rating for one or two scars that are unstable or painful, or for superficial unstable scars. Three or four scars that are unstable or painful warrant a 20 percent rating. Five or more scars that are unstable or painful warrant a 30 percent rating. Note (1) describes that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) states that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Finally, note (3) states that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this DC 7804, when applicable. 38 C.F.R. § 4.118, DC 7804 (2012). DC 7805 provides that scars, including linear scars, are to be rated based on the limitation of function of the part affected. 38 C.F.R. § 4.118, DC 7805. Effective October 23, 2008, VA changed some of the rating criteria regarding the skin, including DCs 7800 through 7805. 73 FR 54708, Sept. 23, 2008. These changes apply to all applications for benefits received by VA on or after October 23, 2008, and claims which were pending on October 23, 2008. Id., 77 FR 2910, Jan. 20, 2012. As the Veteran's claim was received in May 2010, the former rating criteria are not applicable. The Board has also reviewed the claims file for any evidence which may be construed as an implied or informal claim prior to May 2010, and finds none. 38 C.F.R. § 3.155 (2012). On VA treatment in March 2010, the Veteran complained of pain over the left shoulder. The shrapnel injury burned when pressure was applied, including when riding in a car or leaning back against a chair. There was no swelling or warmth, and no drainage. On VA examination in June 2010, the Veteran endorsed pain associated with both left forearm and shoulder scars, as well as loss of skin covering over the shoulder scar with infection within the preceding 11 months. The Veteran's left arm scar measured 2 mm by 3 mm, while the left shoulder scar was 45 mm by 6 mm. Both scars were tender, but not adherent. The scars were superficial with no keloid formation, induration, or inflexibility, and did not limit motion or function. Neither scar had evidence of instability or breakdown, nor did either scar limit motion or function. After reviewing the entire claims file, the Board finds that the Veteran's service-connected left forearm and upper back scars have been not more than 10 percent disabling for any period on appeal. While both scars have been painful, pain is contemplated by the Veteran's current 10 percent ratings under DC 7804. To the extent that the Veteran has had some loss of covering related to his left upper back scar, unstable scaring is contemplated within the rating criteria for a 10 percent evaluation under DC 7804. See 38 C.F.R. § 4.118, DC 7804, Note (1). The Veteran has complained of limited motion of the left arm and shoulder, however examination of the service-connected scars has revealed that the scars themselves do not limit the Veteran's range of motion. The Board has not discounted any lay evidence regarding the severity of the Veteran's scars merely because it is lay evidence or because it was reported by the Veteran. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (holding that a history given by a veteran that has not been found by the Board to be inaccurate is not a basis for discounting an opinion based on that history). That being said, the Board has an obligation to determine the credibility and probative weight of all evidence, lay and medical. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). While the Veteran is competent to endorse pain and reduced motion, Layno, 6 Vet. App. 465, the June 2010 VA examiner specifically considered whether the scars themselves caused any loss of motion or other functional limitation and opined based on the examiner's medical expertise and a thorough physical examination that they did not. Such evidence, rendered by a competent medical professional based on physical examination of the Veteran and review of his medical history, is found to be more probative than the Veteran's own lay contentions. The Board has considered whether a higher evaluation may be warranted under an alternative diagnostic code for the skin, and finds than none is. Specifically, the Veteran's scars are not disfiguring (DC 7800), and are nonlinear and not deep (DC 7801). DC 7802 for superficial scars does not provided for a rating in excess of 10 percent, and Veteran's scars are not associated with one or more of the diseases and disorders contemplated by DCs 7806 through 7833. Accordingly, the Veteran's left forearm and upper back scars have each been 10 percent disabling throughout the entire period on appeal. As the preponderance of the evidence is against the claim, there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has also considered whether referral for extraschedular ratings is warranted for the service-connected scars on appeal. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Here the rating criteria for the disability at issue reasonably describe and assess the Veteran's disability level and symptomatology. The criteria rate the disability on the basis of pain and instability of the scaring; thus, the demonstrated symptomatology - namely pain from both scars, and some loss of covering of the skin over upper back scar - are contemplated by the provisions of the rating schedule. As the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluations are adequate. The schedular rating criteria also include analogous symptoms that are "like or similar to" listed schedular rating criteria. Mauerhan, 16 Vet. App at 442 ; see also 38 C.F.R. § 4.21 (2012). For these reasons, the Board finds that the schedular rating criteria is adequate to rate the Veteran's left forearm and upper back scar, and referral for consideration of an extra-schedular evaluations is not warranted. ORDER Service connection for arthritis of the right knee is granted. Service connection for arthritis of the left knee is granted. Service connection for bilateral hearing loss is granted. A rating in excess of 10 percent for residuals of a shell fragment wound of the left forearm is denied A rating in excess of 10 percent for residuals of a shell fragment wound of the left upper back is denied REMAND The Veteran contends that, as a whole, his service-connected disabilities render him incapable of following a substantially gainful occupation. The central inquiry with a claim for TDIU is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In the preceding decision, the Board has granted entitlement to service-connection for arthritis of the knees and bilateral hearing loss, and the Veteran's file must therefore be returned to the RO for initial rating of these disabilities. Until these disabilities are rated, the issue of entitlement to TDIU cannot be decided; therefore, the issue of TDIU is not ripe for final appellate consideration at this time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue). In addition to the procedural status of the Veteran's TDUI claim, the Board also finds that without additional substantive development the claim cannot be properly adjudicated. A January 2009 letter from a VA physician indicates that the Veteran ambulates slowly with a walker, is in constant pain, and is unable to return to any form of employment. The Board finds, however, that the opinion is not sufficient to grant the Veteran's claim. Specifically, it is unclear what facts the VA physician relied on, including whether the physician considered the Veteran's employment and educational history. A VA social and industrial examination should be conducted and the examiner should identify whether the Veteran is capable of securing or following substantially gainful occupation, and if not, whether it is due to one or more service-connected disabilities, including the knees and bilateral hearing loss. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine his current employability. The claims file must be submitted to the examiner for review in conjunction with the examination. On examination, the examiner should evaluate the Veteran's current level of impairment and symptomatology due to all service-connected disabilities, and offer an opinion as to whether the Veteran is capable of securing or following substantially gainful occupation, and if not, whether it is due to one or more service-connected disabilities, without regard to any current nonservice-connected disabilities. 2. After completing all indicated development, readjudicate all claims on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, a Supplemental Statement of the Case should be furnished to the Veteran, and he should be afforded a reasonable opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). ______________________________________________ T.D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs