Citation Nr: 1328138 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 10-06 331 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for degenerative disc and joint disease of the cervical spine. 2. Entitlement to an initial compensable rating for shrapnel wound of the left leg with residual scars. 3. Entitlement to service connection for hearing loss of the left ear. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran (Appellant or Claimant) had active duty service from August 1968 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The issue of entitlement to service connection for tinnitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for degenerative disc and joint disease of the cervical spine 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. Throughout the appeal period, the service-connected residuals of shrapnel wound of the left leg have been manifested by a history of one week of hospitalization, with surgical debridement, retained shrapnel fragments in the left leg, four scars with minimal adherence to underlying tissue, that are not tender, not painful, each less than 6 square inches in area, and without loss of muscle strength or loss of range of motion; such findings resulted in not more than moderate muscle disability. 2. The Veteran engaged in combat with the enemy in service. 3. The Veteran was exposed to acoustic trauma in service. 4. The Veteran does not have a current disability of left ear hearing loss, and has not been diagnosed with sensorineural hearing loss of the left ear. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for a 10 percent rating for service-connected residuals of shrapnel wound of the left leg have been more nearly approximated for the entire initial rating period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.56, 4.73, Diagnostic Code 5313 (2012); 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (2007). 2. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1154(b), 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102 , 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. A March 2008 letter provided the Veteran with notice of the evidence required to substantiate the claims for service connection for a left leg condition and bilateral hearing loss. The March 2008 letter included notice of how disability ratings and effective dates are determined. With regard to the duty to assist, the Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. The information and evidence that has been associated with the claims file includes the Veteran's pertinent post-service VA treatment records and the Veteran's statements. Although the Veteran's service treatment records are not associated with the claims file, the evidence of record is sufficient to decide the issues of a higher initial rating for a shrapnel wound of the left leg with residual scars and service connection for left ear hearing loss. The Veteran was a afforded a VA audiological examination in January 2009 and VA examinations of the left leg in January 2009, April 2010, and June 2010. In this case, the VA examinations provide findings sufficient to decide the claim for service connection for left ear hearing loss and appeal for a higher initial rating for a shrapnel wound of the left leg with residual scars. The January 2009, April 2010, and June 2010 examiners reviewed the claims file but did not review the service treatment records, as those records are not currently associated with the file. The January 2009 and April 2010 VA examiners obtained this information from the Veteran during the examinations. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (holding that the strength of the opinion depends upon the accuracy of the facts asserted by the veteran). The Veteran was capable of informing the VA examiners of the contents of his lay statement, and did so. The information provided to the examiner is consistent with the record as contained in the claims file. See VAOPGCPREC 20-95 (interpreting that the determination as to whether review of prior medical records is necessary in a particular case depends largely upon the scope of the examination and the nature of the findings and conclusions the examiner is requested to provide). There is no reason to believe that any of the information in the claims file is factually inaccurate or would have changed the January 2009 or April 2010 examiners' opinions had they been able to review it. The VA examiners' opinions based upon an accurate history of the Veteran's shrapnel wound of the left leg, and the VA examiners had accurate facts and data regarding the history of the disability. In a July 2013 brief, the Veteran's representative asserted that the January 2009 VA examination for hearing loss was inadequate. The Veteran's representative asserted that the VA examination did not properly test the Veteran's hearing. The Board finds that the representative's general assertions are insufficient to overcome the presumption of regularity applying to government officials, and specifically to VA examiners conducting compensation examinations. The Court has held that there is a presumption of regularity which holds that government officials are presumed to have properly discharged their official duties. Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992). Both the Court and the Federal Circuit have held that the Board is entitled to presume the competence of a VA examiner and specific challenges to a VA examiner's competency must be raised by the appellant to overcome this presumption. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009); Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010); see also Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (citing Hilkert v. West, 12 Vet. App. 145, 151 (1999)). The Court held in Cox at 569 that "the Board is entitled to assume the competence of a VA examiner." See also Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (explicitly extending the presumption of competence discussed in Cox and Rizzo to VA examiners). The report of the January 2009 audiological examination reflects that the VA examiner provided findings required to evaluate hearing loss disability under 38 C.F.R. § 3.385. The VA examination report included auditory thresholds at the specified frequencies and speech recognition scores using the Maryland CNC Test. For these reasons, the Board finds that the presumption of administrative regularity in the way the examination was conducted is not overcome, and the January 2009 VA examination report is adequate for rating purposes. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service Connection Laws and Regulations 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; 38 C.F.R. § 3.303(a). Service connection may also 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 of 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). While sensorineural hearing loss is a "chronic disease" listed under 38 C.F.R. § 3.309(a), the record does not reflect that the Veteran has a diagnosis of sensorineural hearing loss of the left ear; therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) based on chronic symptoms in service and continuous symptoms since service do not apply to the claim for service connection for left ear hearing loss. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The standard used to determine whether a veteran engaged in combat with the enemy is reasonable doubt, which is to be resolved in a veteran's favor. See VAOPGCPREC 12-99. The provisions of 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 a current disorder. See Libertine, 9 Vet. App. at 522-23. The provisions of 38 U.S.C.A. § 1154(b) do not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). In this case, service personnel records indicate that the Veteran was awarded the Purple Heart. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Disability Ratings - Law and Regulations Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 ; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Veteran has challenged the initial disability rating assigned to the service-connected shrapnel wound of the left leg by seeking appellate review. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999) (noting distinction between claims stemming from an original rating versus increased rating). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as a "staged" rating. Id. at 126. The Board has reviewed all the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Initial Rating for Shrapnel Wound of the Left Leg with Residual Scars A March 2009 rating decision granted service connection for shrapnel wound of the left leg with residual scars. A non-compensable rating was assigned from November 2007. The Veteran's shrapnel wound with residual scars is rated pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7805, that was in effect at the time of the November 2007 service connection claim and Diagnostic Code 5313. The Veteran has appealed the initial rating assigned. In a July 2013 brief, the Veteran's representative contended that a higher rating is warranted based upon painful and unstable scars. The Veteran's representative also asserted that the Veteran has retained shrapnel in his left leg. The Board notes that as of October 23, 2008 revised provisions for evaluating scars were enacted; however, this new regulation indicates that the revised provisions are applicable only to claims received on or after October 23, 2008. Accordingly, these revisions do not apply to the present case. 73 Fed. Reg. 54708 (Sept. 23. 2008). Rather, the Veteran's appeal for a higher initial rating for shrapnel wound with scars will be considered solely under the criteria effective as of the date of the 2007 service connection claim. In this case, VA examination reports show that the Veteran was injured in a grenade explosion when he was in Vietnam. The Veteran was hospitalized for about one week. Surgical debridement was performed on the left leg to remove shrapnel pieces. Diagnostic Code (DC) 7800 rates scars of the head, face, or neck based upon disfigurement, and does not apply in this case as the service-connected shrapnel wound and residual scars are located on the Veteran's left leg. Under DC 7801, scars, other than of the head, face or neck, that are deep or that cause limited motion warrant a 10 percent rating when the scars cover an area or areas exceeding 6 square inches (39 sq. cm.). Scars that are superficial, do not cause limited motion, and cover area of 144 inches or more are given a compensable rating under DC 7802. Unstable superficial scars are rated under DC 7803. An unstable scar is one where, for any reason, there is frequent loss of covering of the skin over the scar. Superficial scars that are painful on examination are rated under DC 7804. DC 7804 stipulates that a 10 percent disability evaluation will be warranted with evidence that a superficial service-connected scar is painful on examination. DC 7805 provides that other scars are rated on limitation of function of the affected part. A deep scar is one associated with underlying soft tissue damage, and a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801-7805. Diagnostic Code 5313 pertains to a disability of Muscle Group XIII, which is comprised of posterior thigh group and hamstring complex of 2-joint muscles: 1) biceps femoris, 2) semimembranosus, and 3) semitendinosus. The functions of Muscle Group XIII include: extension of hip and flexion of knee; outward and inward rotation of the flexed knee; and, acting with the rectus femoris and sartorius, synchronizing simultaneous flexion of hip and knee and extension of hip and knee by belt-pulley action at the knee joint. A slight disability warrants a noncompensable rating. A moderate disability warrants a 10 percent disability rating. A moderately severe disability warrants a 30 percent disability rating. A severe disability warrants a 40 percent rating, the highest rating available under the diagnostic code. 38 C.F.R. § 4.73. Disabilities resulting from muscle injuries are classified as slight, moderate, moderately severe, or severe. 38 C.F.R. § 4.56(d). A slight muscle disability contemplates: a simple wound of the muscle without debridement or infection; a service treatment record of a superficial wound with brief treatment and return to duty; healing with good functional results; or, no cardinal signs or symptoms of muscle disability. Objectively, a slight muscle disability consists of: a minimal scar; no evidence of fascial defect, atrophy, or impaired tonus; or, no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(1). The rating criteria pertaining to muscle disabilities provide that a "slight" disability of muscles contemplates record of superficial wound with brief treatment and return to duty and healing with good functional results. There are no cardinal signs or symptoms of muscle disability, minimal scar, and no evidence of fascial defect, atrophy, or impaired tonus. There is no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(1). A moderate muscle disability contemplates: a through-and-through or deep penetrating wound of short track from a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement, or prolonged infection; a service treatment record or other evidence of in-service treatment for the wound; or, a record of consistent complaints of one or more of the cardinal signs and symptoms of a muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objectively, a moderate muscle disability consists of: entrance and (if present) exit scars that are small or linear, indicating a short track of missile through muscle tissue; some loss of deep fascia or muscle substance impairment of muscle tonus and loss of power; or, lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2). A moderately severe muscle disability contemplates: a through-and-through or deep penetrating wound by a small high-velocity missile, or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring; a service treatment record or other evidence showing hospitalization for a prolonged period for the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability; or, if present, evidence of inability to keep up with work requirements. Objectively, a moderately severe muscle disability consists of: entrance and (if present) exit scars indicating track of missile through one or more Muscle Groups; indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscle compared with the sound side; or, tests of strength and endurance compared with the sound side demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). A severe muscle disability contemplates: a through-and-through or deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding, and scarring; a service treatment record or other evidence showing hospitalization for a prolonged period for treatment of the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries; or, if present, evidence of inability to keep up with work requirements. Objectively, a severe muscle disability consists of: ragged, depressed, and adherent scars indicating wide damage to Muscle Groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles swell and harden abnormally in contraction; or, tests of strength, endurance, or coordinated movements indicate severe impairment of function when compared with the uninjured side. 38 C.F.R. § 4.56(d)(4). If present, the following are also signs of a severe muscle disability: (a) x-ray evidence of minute, multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (b) adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; (c) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (d) visible or measurable atrophy; (e) adaptive contraction of an opposing group of muscles; (f) atrophy of Muscle Groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and, (g) induration or atrophy of an entire muscle following simple piercing by a projectile. Id. For VA rating purposes, the cardinal signs and symptoms of a muscle disability are loss of power, weakness, lower threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45 (2012). See DeLuca v. Brown, 8 Vet. App. 202 (1995). After review of the evidence the Board finds that the weight of the evidence demonstrates that throughout the appeal the Veteran's left leg shrapnel wound with residual scars more nearly approximates moderate impairment of muscle group XIII, for which a 10 percent rating is warranted under Diagnostic Code 5303. Throughout the appeal period, the service-connected residuals of shrapnel wound of the left leg have been manifested by a history of one week of hospitalization, with surgical debridement, retained shrapnel fragments in the left leg, four scars with minimal adherence to underlying tissue, that are not tender, not painful, each less than 6 square inches in area, and without loss of muscle strength or loss of range of motion. The Veteran had a VA examination in January 2009. The Veteran reported that he sustained a shrapnel wound of the left leg when he was on active duty in Vietnam. The Veteran reported that he was treated at the field evacuation hospital and had a total of 17 stitches to close the wounds. The VA examiner indicated that that the Veteran reported no symptomatology. The VA examiner indicated, as far as shrapnel injury is concerned, the Veteran offered no symptoms and stated there never had been symptoms. Upon physical examination in January 2009, the VA examiner indicated that the scars were 4 centimeters by three centimeters, 2 centimeters by 1.5 centimeters, 2 centimeters by 1.2 centimeters, and 3.5 centimeters by 3 centimeters. The VA examiner indicated that the scars were all the same in color as the surrounding skin, with irregular texture, irregular margins, and minimal adherence to underlying tissue. The VA examiner indicated that there was no redness, increase in local heat, swelling, pain, tenderness, drainage, or keloid formation. The Veteran had a VA examination in April 2010. The Veteran reported that he was injured by a grenade explosion when he was in Vietnam. He reported that he was taken to a hospital, where he stayed for a about a week, where surgical debridement was performed to remove shrapnel pieces. The Veteran reported that he did not have any trouble with his left leg muscles. Upon physical examination in April 2010, the VA examiner indicated that there was no clinical evidence of a muscle disorder. The VA examiner indicated that the muscle had not been injured and there was no intermuscular scarring, there was normal muscle function in terms of comfort, endurance, and strength sufficient to perform activities of daily living, there was no residual nerve, tendon, or bone damage, muscle herniation, loss of deep fascia or muscle substance, or limitation of motion of a joint due to muscle disease or injury. An x-ray of the left knee in April 2010 showed mild degenerative joint disease, mild osteopenia, and multiple radiodensities consistent with shrapnel fragments. (An addendum opinion in June 2010 was provided to the effect that the degenerative joint disease and osteopenia of the left knee were not related to the service-connected shell fragment wound.) Upon physical examination in April 2010, the VA examiner indicated that there were four scars of the left lower extremity. The first scar had a maximum width of 1.5 centimeters and a maximum width of 3.5 centimeters. The area of the scar was less than 6 square inches. The VA examiner indicated that the scar had no signs of skin breakdown, was superficial, had no inflammation, no edema, no keloid formation and no other disabling effects. The VA examiner in April 2010 indicated the second scar of the left lower extremity was medial to the left knee. There was no skin breakdown over the scar and no reports of pain. On physical examination, the maximum width of the scar was 0.5 centimeters, and the maximum length of the scar was 1.5 centimeters. The VA examiner indicated that the area of the scar was less than 6 square inches. The VA examiner indicated that the third scar of the left lower extremity had a maximum width of 1 centimeter and maximum length of 3 centimeters. There was no skin breakdown over the scar and no report of pain. The VA examiner indicated that the maximum width of the scar was 1 centimeter. The maximum length was 3 centimeters. The area of the scar was less than 6 square inches (39 square centimeters). The VA examiner indicated that the scar was not painful, had no signs of skin breakdown, was superficial, had no inflammation, no edema, no keloid formation, and no other disabling effects. While the Veteran's representative contends that the Veteran's service-connected left leg scars are painful and unstable, the January 2009 and April 2010 VA examination reports reflect that the Veteran did not report pain associated with the left leg scars, and pain was not noted to be present during examination. The examination reports do not show findings of unstable scars, as the April 2010 VA examination indicated that there was no skin breakdown over the scars. The VA examiner indicated that a fourth scar of the left lower extremity had a maximum width of 1 centimeter and maximum length of 4 centimeters. The area of the scar was less than 6 square inches. The VA examiner indicated that the scar was not painful, had no signs of skin breakdown, was superficial, had no inflammation, no edema, no keloid formation, and no other disabling effects. In a June 2010 addendum, the VA physician who performed the April 2010 VA examination opined that current degenerative joint disease of the left knee and osteopenia are less likely than not related to the shell fragment wound of the left leg. The VA examiner reasoned that the arthritis of the left knee is more likely related to years of common wear and tear on the joint. The VA examiner explained that there is no evidence to suggest that the left leg wound involved the knee joint itself. The VA examiner indicated that the wound was confined to the soft tissue, not the joint space. The VA examiner explained that the cause of osteopenia (diminished amount of bone tissue) does not include soft tissue injury. The VA examiner reasoned that the leg wound does not include bone damage or involvement of the bones of the left leg. As the April 2010 VA examiner has differentiated the left knee degenerative joint disease and osteopenia from the service-connected shell fragment wound of the left leg, the Board concludes that the assignment of a separate rating for impairment of left knee arthritis or osteopenia is not warranted. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (stating that the Board may not ignore evidence differentiating between service-connected and non-service-connected disabilities). The Board has reviewed the lay and medical evidence and concludes that the evidence shows shell fragment wound residuals that more nearly approximate the criteria for moderate injury of Muscle Group XIII, which warrants a 10 percent rating under Diagnostic Code 5313. In this case, the service treatment history reflects that the Veteran was hospitalized for one week and had debridement on his left leg to remove shrapnel pieces. The objective findings reflect that the shrapnel wound of the left leg is manifested by four scars that are not painful or tender and do not cause limitation of motion of the left leg, though they are minimally adherent, but include retained shrapnel fragments in the left leg, with some minimal adherence to underlying tissue. The Board also finds that the evidence is against a finding that the service-connected shrapnel wound residuals more nearly approximate the criteria for moderately severe muscle disability. The history and objective findings at VA examinations do not show a through-and-through or deep penetrating wound by a small high-velocity missile, or large low-velocity missile normal muscle function, or intermuscular scarring, though there is some minimal adherence. While there was debridement, there was also no prolonged infection, or sloughing of soft parts, or intermuscular scarring, or hospitalization for a prolonged period, or a record of consistent complaint of cardinal signs and symptoms of muscle disability or evidence of inability to keep up with work requirements. The evidence of record also does not show objective evidence of entrance and exit scars indicating track of missile through one or more Muscle Groups, indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscle compared with the sound side, or positive evidence of impairment indicated by tests of strength and endurance compared with the sound side. 38 C.F.R. § 4.56(d)(3). While the 2009 VA examination found that there was minimal adherence of the scars, the Board concludes that this finding alone does not support the assignment of a higher rating for severe muscle disability. For the reasons stated above, and resolving reasonable doubt in the Veteran's favor, the Board finds that for the entire rating period under appeal a 10 percent initial disability rating, but no higher, is warranted for moderate muscle disability caused by the shrapnel wound of the left leg with residual scars. 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). 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 claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In this case, the schedular rating criteria contemplate the impairments and symptoms associated with the Veteran's shrapnel wound and residual scars. The rating criteria for scars consider the size of the scars, whether the scars are painful, unstable, or results in limitation of function of the affected area. The rating criteria for muscle injuries consider the history of the wound, including hospitalization and debridement, and objective findings on examination, toward a finding of whether the muscle disability is slight, moderate, moderately severe, or severe. The schedular rating criteria specifically include symptoms or findings of pain, muscle atrophy, scars, the presence of shrapnel, loss of muscle strength, loss of range of motion, and adherence, and the overall severity of the impairment, among other specific rating criteria for rating muscle injuries. Such schedular rating criteria were considered in this case. Because the schedular rating criteria is adequate to rate the Veteran's disability, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1). Service Connection for Hearing Loss of the Left Ear The Board notes that service connection is in effect for right ear hearing loss, based upon the Veteran's noise exposure during service, including artillery and gunfire, and his occupation as a helicopter repairman. In addition, because the Veteran received a Purple Heart, the Board finds that he engaged in combat with the enemy during service. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304 (2012). In cases involving service connection for hearing loss, impaired hearing will be considered to be a disease when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. In statements in support of his claim, the Veteran asserts that he has left ear hearing loss which is related to acoustic trauma in service as an aircraft mechanic and crew member. The Veteran asserts that he did not have hearing protection during service. After a review of all the evidence, the Board finds that the Veteran was exposed to acoustic trauma during service. The DD Form 214 reflects that the Veteran's service occupation was helicopter repairmen. The Veteran's report of noise exposure is consistent with his service occupation. The Veteran had a VA audiology evaluation in January 2009. The VA examination report reflects that the Veteran reported a history of decreased hearing since Vietnam, where he was in close proximity to artillery and gunfire. The audiometric test results for the left ear indicated normal hearing. Speech recognition scores were 100 percent for the right ear and 96 percent for the left ear. After review of the record, the Board finds that the Veteran does not have a current left ear hearing loss "disability" as defined by 38 C.F.R. § 3.385. The record does not contain an audiometric evaluation that shows that the Veteran meets the criteria of 38 C.F.R. § 3.385 for the left ear. 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). Because the Veteran does not have current left ear hearing loss disability for VA compensation purposes, the Board need not address the question of whether any current hearing loss is related to the noise exposure in service. Should the Veteran's hearing loss meet the criteria for service connection under § 3.385 in the future, he may file a claim to reopen service connection for left ear hearing loss. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for left ear hearing loss, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER An initial 10 percent rating for shrapnel wound of the left leg with residual scars is granted. Service connection for left ear hearing loss is denied. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the issues of service connection for a cervical spine disorder. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). The RO submitted a request for the Veteran's service treatment records to the National Personnel Records Center (NPRC) in January 2008. A response from NPRC, received in July 2008, indicated that the record was charged out to the Army Review Boards Agency (ARBA). The NPRC response suggested that the RO resubmit the request in 3 to 6 months. The RO did not resubmit a second request to the NPRC. The Board finds that a remand is necessary in order to submit another request for the Veteran's service treatment records to the NPRC. The Veteran asserts that he injured his neck in service when he fell from a helicopter and landed on his head. The Veteran was afforded a VA examination of his cervical spine in December 2009. The VA examiner indicated that he could not provide a medical opinion regarding the etiology of a cervical spine condition without resort to speculation. The VA examiner explained that he was not able to find documentation of the in-service injury. The VA examiner indicated that he was not able to locate a service separation examination to see if there was evidence of a chronic disorder of the cervical spine. If the Veteran's service treatment records are obtained, the Veteran should be afforded a VA examination of the cervical spine based upon a review of the claims file. Accordingly, the claim for service connection for degenerative disc and joint disease of the cervical spine is REMANDED for the following action: 1. Request the Veteran's complete service treatment records from the NPRC. Associate any records received from NPRC with the claims file. The Veteran should be notified of the status of all requests and if the records are determined to be unavailable. 2. If the service treatment records are obtained, schedule the Veteran for a VA examination of his cervical spine. The VA examiner should diagnose a current cervical spine disorder. The examiner should provide a medical opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that a cervical spine disorder had its onset in active service or is otherwise related to active service. The VA examiner is advised that the Board finds the Veteran's report of falling from a UH1 Huey and landing on his head credible. In rendering the opinion, the VA examiner should consider and discuss the fall. The examiner should provide a detailed rationale for the opinion provided. If an opinion cannot be provided without resort to speculation, the VA examiner should explain why an opinion cannot be provided. 4. Readjudicate the claim for service connection for degenerative disc and joint disease of the cervical spine. If the benefit sought on appeal is not granted, the appellant and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran 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). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs