Citation Nr: 1337580 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 07-33 522 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to a compensable rating for the service-connected scar, residual of a head injury. 2. Entitlement to service connection for right ear hearing loss disability. 3. Entitlement to service connection to a claimed cardiac disorder, including an enlarged heart, as due to Anthrax vaccination and sarin gas exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from January 1987 to November 1991 and from December 1992 to September 1995. This case initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the RO. The Virtual VA paperless claims processing system is replete with VA treatment records dated from 2007 to 2013. Other documents are either duplicative of the evidence of record or are not pertinent to the present appeal. The Veterans Benefits Management System does not include any documents. In addition to the issues listed on the title page, in January 2012, the Board remanded the issues of service connection for bilateral hearing loss, a claimed breathing problem to include as due to an undiagnosed illness, and claimed chronic fatigue with a joint, muscle and tendon condition to include as due to an undiagnosed illness. The Board also reopened the claim of service connection for a left knee disorder and remanded that matter for further development. In a rating decision dated in September 2012, service connection was granted for chronic fatigue with a joint, muscle and tendon condition, breathing problems, a left knee condition and a left ear hearing loss disability. Thus, these issues are no longer in appellate status. In October 2006, the Veteran also raised the issues of increased ratings for the service-connected residual back scar and residual kidney stone scar. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction and refers them to the AOJ for appropriate action. The issue of service connection for a cardiac disorder, to include an enlarged heart, as due to Anthrax vaccination and sarin gas exposure, is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran does not have a right ear hearing loss disability for VA compensation purposes. 2. The service-connected residual head scar is not shown to be visible or otherwise to be productive of pain, loss of skin or limitation on function. CONCLUSIONS OF LAW 1. The claim of service connection for a right ear hearing loss disability must be denied by operation of law. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.385 (2013). 2. The criteria for the assignment of a compensable rating for the service-connected scar, as the residual of a head injury, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.118 including Diagnostic Code 7800 (prior to October 23, 2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim; namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre- adjudication VCAA notice by letters dated in June 2005 and in July 2005. The Veteran was notified of the evidence needed to substantiate the claims of service connection and for an increased rating, as well as what information and evidence he must submit, what information and evidence would be obtained by VA, and the provisions for disability ratings and for the effective date of the claims. Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claims. The service treatment records, post-service treatment records, VA examination reports, and lay statements have been associated with the record. In compliance with the remand in January 2012, the Veteran was afforded adequate VA examinations in February 2012 to decide the claim of service connection for right ear hearing loss disability and the claim for a compensable rating for the service-connected residual head scar. Thus, with respect to these claims, there is no additional evidence that must be obtained. Service Connection for Right Ear Hearing Loss A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. §§ 1110, 1131. Generally, to provide service connection, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). There are specific requirements regarding what constitutes a hearing loss disability under VA law. 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 of 500, 1000, 2000, 3000, and 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 a service treatment record dated in May 1991, a finding of a mild high frequency sensorineural hearing loss in the right ear was recorded, and the Veteran complained of hearing loss on his report of medical history in June 1995. However, in-service audiograms did not show that the Veteran at any time during service met the criteria for right ear hearing loss disability under 38 C.F.R. § 3.385. See Service audiograms dated in May 1986, July 1987, August 1988, August 1989, May 1991, June 1991, November 1991, October 1992, February 1993, January 1994, August 1994, June 1995 and July 1995. On the enlistment examination in May 1986, the identified right ear puretone thresholds in decibels at 500, 1000, 2000, 3000 and 4000 Hertz were those of 10, 0, 0, 0 and 5, respectively. On the separation examination in July 2005, the identified right ear puretone thresholds in decibels at 500, 1000, 2000, 3000 and 4000 Hertz were those of 20, 0, 0, 5 and 10, respectively. Between the entrance examination and separation examination, the Veteran's right hearing acuity was the worst on an audiogram in May 1991 when he had findings of 25 decibels lost at 500 and 4000 Hertz, respectively. While this audiogram was uninterpreted, this is a straightforward graph and the Board as finder of fact can interpret the chart to determine the numeric values of the puretone levels for adjudication purposes. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (the Court held that it could not interpret the results of an audiograph because interpretation requires a factual finding, which is not the role of the Court in the first instance, and further indicated that the Board was empowered to make such factual findings in the first instance). After service, the file includes multiple audiograms that do not show that the Veteran had hearing loss disability in his right ear as defined by 38 C.F.R. § 3.385. A VA audiometric examination in June 2005 showed that the Veteran had normal hearing. An undated and uninterpreted VA audiogram received in August 2005 showed that the Veteran's right ear hearing acuity was 25 decibels lost at only 500 Hertz with all other tested frequencies below 25 decibels. In connection with a VA examination in July 2006, the identified right ear puretone thresholds in decibels at 500, 1000, 2000, 3000 and 4000 Hertz were those of 20, 15, 10, 10 and 10, respectively. The Maryland CNC Test was 96 percent in the right ear. In connection with a VA examination in February 2012, the identified right ear puretone thresholds in decibels at 500, 1000, 2000, 3000, and 4000 Hertz were those of 35, 25, 25, 25 and 35, respectively. Maryland CNC Test was 96 percent in the right ear. The Board has considered the Veteran's statements that his right ear hearing loss is due to service or secondary to his service-connected disorders, including the use of prescribed nonsteroidal anti-inflammatory drugs. See July 2011 brief. Although the Veteran is competent to describe symptoms observable to a lay person and his statements in this regard are assigned limited probative weight because the Veteran is without the appropriate medical training to provide a diagnosis of right ear hearing loss because the diagnosis is based on results of audiology testing that meet the standards of a hearing loss disability under 38 C.F.R. § 3.385. Thus, based on the current record, the claim of service connection for a right ear hearing loss disability must be denied by law. See 38 U.S.C.A. § 5107(b). Compensable Rating for the Service-Connected Residual Head Scar A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The criteria for rating scars under Diagnostic Codes 7800-7805 were amended effective on October 23, 2008 and apply to all claims received by VA on or after October 23, 2008. As to claims filed before October 23, 2008, on January 20, 2012, 38 C.F.R. § 4.118 was revised to clarify that a veteran whose scars were rated by VA under Diagnostic Codes 7800-7805 in effect prior to October 23, 2008, may request review under the revised Diagnostic Codes. 77 Fed. Reg. 2909 (January 20, 2012). In the instant case, the Veteran filed his claim before October 2008 and has not requested that his scar be rated under the revised criteria. Thus, the criteria prior to October 23, 2008 apply. The service-connected residual head scar is rated under Diagnostic Code 7800 for disfigurement of the head, face, or neck. Diagnostic Code 7800 provided that a 10 percent rating is warranted with one characteristic of disfigurement. A 30 percent evaluation is warranted for two or three characteristics of disfigurement; or disfigurement of the head, face or neck with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips). A 50 percent evaluation is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. An 80 percent evaluation is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. 38 C.F.R. § 4.118 , Diagnostic Code 7800 (prior to October 2008). Under note (1), the eight characteristics of disfigurement for purposes of evaluation under Diagnostic Code 7800, are: a scar 5 inches or more inches (13 or more centimeters) in length; scar at least one-quarter inch (0.6 centimeters) wide at widest part; surface contour of scar elevated or depressed on palpation: scar adherent to underlying tissue; skin hypo-or hyper-pigmented in an area exceeding six square inches (39-square centimeters); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); underlying soft tissue missing in an area exceeding six square inches (39-square centimeters.); skin indurated and inflexible in an area exceeding six square inches (39- square centimeters). Under note (3), the adjudicator is required to take into consideration un-retouched color photographs when evaluating scars under these criteria. 38 C.F.R. § 4.118, Diagnostic Code 7800. Other potentially applicable Diagnostic Codes are 7803, 7804 and 7805. Under Diagnostic Code 7803, a scar that is superficial and unstable are rated 10 percent. Note (1) provides that an unstable scar is where there is frequent loss of covering of skin over the scar. Under Diagnostic Code 7804 scars which are superficial and painful on examination are rated 10 percent. Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage. Under Diagnostic Code 7805 other scars are rated on limitation on function of the affected part. Analysis The pertinent evidence consists of the Veteran's June 2005 claim for a compensable rating for the service-connected residual head scar, a VA examination in June 2007 whereby the Veteran denied having residuals from his in-service head injury, and a VA scar examination in February 2012. The Veteran's photographs received in April 2012 are consistent with the findings recorded in connection with the February 2012 VA examination. As the Veteran does not have any characteristic of disfigurement, a compensable rating under Diagnostic Code 7800 is not assignable. On VA examination in February 2012, the examiner reported that the Veteran's head scar was not painful, or unstable or result in any loss of skin. There was no abnormal pigmentation or texture of the head. The examiner found that a head scar was not visible and reported that the total area of the head affected by disfigurement was zero. There also was no pigmentation, abnormal texture, missing underlying soft tissue or indurated or inflexible skin noted on examination. The examiner found no gross distortion or asymmetry of facial features or visible or palpable tissue loss. The VA examiner determined that the service-connected residual scar had not resulted in limitation on function, nerve injury or muscle damage or an impact on the Veteran's ability to work. As the February 2012 VA examiner specifically found that there was no visible head scar or related skin break down, pain or limitation on function, Diagnostic Codes 7803, 7804 and 7805 are not applicable. Based on the lay and medical evidence of record, the service-connected residual head scar has been consistent throughout the appeal period is showing that a compensable rating is not assignable under any applicable Diagnostic Code for any period of the appeal. For these reasons, a compensable rating under Diagnostic Code 7800 is not warranted. 38 C.F.R. § 4.7. Extraschedular Consideration While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the service-connected disability level and symptomatology pertaining to his service-connected residual scar of the head injury. The rating criteria address various impairments caused by scars to include disfigurement, unstable scars, painful scars and limitation on function. The Veteran has not described any exceptional or unusual features or symptoms of the disability. For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER The claim of service connection for right ear hearing loss is denied under the law An increased, compensable rating for the service-connected scar, residual of a head injury, is denied. REMAND The February 2012 VA examination determined that the Veteran did not have a current heart disorder. However, there are diagnoses referable to the heart shown in the record. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997). This "requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim." McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). Thus, an addendum is needed in this case in order to fully address the nature and likely etiology of the claimed heart condition. Accordingly, this remaining matter is REMANDED for the following action: 1. The RO should take appropriate steps to return the claims file to the VA examiner who conducted the heart examination in February 2012. If this examiner is not available, the Veteran's claim folder should be reviewed by a suitable substitute. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner. The examiner is asked to provide a rationale for the opinions rendered. If the examiner is not able to provide an opinion, this should be explained. The VA examiner should provide an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability), that the Veteran has a current heart disability that had its clinical onset in service or otherwise is related to an event or incident in service to include exposure to anthrax vaccine and sarin gas. The examiner is asked to address the following: a.) The service treatment records show complaints of chest pain on reports of medical history in June and July 1995 and findings of an electrocardiogram in July 1995 noted as left axis deviation. b.) The VA records in March 2006 show an assessment of tachycardia, VA records in March 2007 interpreting a recent electrocardiogram that shows sinus tachycardia and left axis deviation; and a December 2009 record showing atrophy and small vessel ischemic changes. c.) The February 2012 VA examination whereby the examiner reported that the Veteran had arrhythmia, was prescribed Losartan, Chlorthalidone, and Metoprolol. The examiner also reported that an electrocardiogram that same month shows left axis deviation and an anteroseptal infarct (that was cited on or before February 26, 2011). 2. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs