Citation Nr: 1337955	
Decision Date: 11/20/13    Archive Date: 12/06/13

DOCKET NO.  09-28 602	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and adjustment disorder.

2.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left knee disability, and if so, whether service connection is warranted.

3.  Entitlement to an initial compensable evaluation for bilateral hearing loss disability.

4.  Entitlement to a compensable rating for a post-operative appendectomy scar.

5.  Entitlement to a compensable rating for a post-operative cystectomy scar of the right knee.



REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Barone, Counsel


INTRODUCTION

The Veteran had active service from January 1988 to January 1992.

This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis,  Missouri.  Jurisdiction over the Veteran's claims file currently resides with the Indianapolis, Indiana RO.

In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) clarified how the Board should analyze claims for psychiatric disorders.  As emphasized in Clemons, although a Veteran may only seek service connection for PTSD, his claim "cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed...."  Id.  In essence, the Court found that a Veteran does not file a claim to receive benefits for a particular psychiatric diagnosis, such as PTSD, that is named on a claims form, but instead makes a general claim for compensation for the affliction posed by the Veteran's mental condition.  As such, the service connection issue has been recharacterized to include all psychiatric diagnoses evident in the claims file.

The issue of entitlement to service connection for a left knee disability 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 does not now have, and has not had a diagnosis of PTSD.

2.  An acquired psychiatric disorder, including an adjustment disorder was not manifest in service and is unrelated to service.

3.  In a January 1994 rating decision, the RO denied service connection for a left knee condition.

4.  The evidence added to the record since the January 1994 rating decision is not cumulative or redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left knee disability.

5.  Bilateral hearing loss disability is manifested, at worst, by Level I hearing loss in the right ear and Level III hearing loss in the left ear.

6.  The post-operative appendectomy scar is not productive of pain or functional impairment.

7.  The post-operative cystectomy scar of the right knee is not productive of pain or functional impairment.


CONCLUSIONS OF LAW

1.  PTSD was not incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1154(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013).

2.  An acquired psychiatric disorder, including an adjustment disorder, was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).

3.  The January 1994 rating decision is final.  38 U.S.C.A. § 7104(b)  (West 2002); 38 C.F.R. §§ 3.160(d), 20.1103 (2013).

4.  New and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability.  38 U.S.C.A. § 5108  (West 2002); 38 C.F.R. § 3.156 (2013).

5.  The criteria for an initial compensable evaluation for bilateral hearing loss disability have not been met or approximated.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, Tables VI, VIA, VII; 4.86; Diagnostic Code 6100 (2013).

6.  The criteria for a compensable evaluation for the post-operative appendectomy scar have not been met or approximated.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.118, Diagnostic Codes 7800, 7801, 7802, 7803, 7804, 7805 (as in effect prior to October 23, 2008).

7.  The criteria for a compensable evaluation for the post-operative right knee cystectomy scar have not been met or approximated.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.118, Diagnostic Codes 7800, 7801, 7802, 7803, 7804, 7805 (as in effect prior to October 23, 2008).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).

With respect to the Veteran's petition to reopen his claim of entitlement to service connection for a left knee disability, the Board has determined that the evidence added to the record is sufficient to reopen the claim.  Thus, no further discussion of VA's duties to notify and assist are necessary with respect to this claim.  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA 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.  Those five elements include: 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.  The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  Id. at 486.  

A letter dated in January 2008 discussed the evidence necessary to support the Veteran's claims.  The evidence of record was listed and the Veteran was informed of the allocation of responsibilities between himself and VA.  The Veteran was also advised of the manner in which VA determines disability ratings and effective dates.  

Subsequent letters advised the Veteran of the status of his claim.

The Board finds that the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify.  The appellant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices.  Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim.  

With respect to the claim for an initial compensable rating for bilateral hearing loss disability, the Board notes that this is a case in which the Veteran is challenging the initial evaluation assigned following the grant of service connection.  In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Id. at 490-91.

With respect to VA's duty to assist, VA treatment records have been obtained and associated with the record.  VA examinations have been conducted.  The Board finds that the examination reports are adequate, in that the examinations were conducted by clinician who reviewed the record, interviewed the Veteran, and performed appropriate evaluations.  The Veteran has not otherwise identified any additional available evidence or information which could be obtained to substantiate the claim.  The Board is also unaware of any such outstanding evidence or information.  Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations.  

The Board observes that in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2012).  Here, the examiners included a discussion of the effects of the Veteran's hearing loss, and the record otherwise includes the Veteran's statements concerning its effects.  The Veteran has not asserted that there is any deficiency in the VA examinations.

For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal.

Analysis

Service Connection for an Acquired Psychiatric Disorder

Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303.  

To establish a right to compensation for a present disability, a claimant must show: "(1) the existence of a present disability; (2) 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).  

Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

When there is an approximate balance of positive and negative 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). 

Service treatment records reflect that the Veteran was seen on mental health consultation in June 1989.  He self referred for alcohol and drug abuse problems.  Following evaluation, the diagnoses included alcohol dependence and personality disorder not otherwise specified with immaturity.  The Veteran was found to be fit for full duty.  He subsequently underwent substance abuse treatment.  On separation examination in January 1992, the Veteran was psychiatrically normal.  He denied frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort.  

In his original claim for VA disability benefits in April 1993, the Veteran did not include any psychiatric disorder.  

In October 2007, the Veteran indicated his belief that he had PTSD because one of his friends was killed while they were in Kuwait.  He stated that he had trouble sleeping, had nightmares, and did not like people touching him.

A VA examination was conducted in April 2008.  The Veteran's history was reviewed, to include his substance abuse treatment during service following court martial.  He denied mental health treatment since leaving service.  He reported stress related problems regarding his health and finances.  With respect to military history, the Veteran reported that he was a machine gunner.  The examiner noted that the Veteran had received the Combat Action Ribbon and that it appeared that he had been exposed to a moderate degree of combat stress.  The Veteran indicated that he was present when a fellow service member was killed by a mine, and that the outer perimeter of his camp was attacked.  Following examination, the diagnoses were adjustment disorder with depressed mood, alcohol dependence in remission by self report, and polysubstance dependence by history, in full remission.  The examiner noted that the Veteran did report a stressor that met the Diagnostic and Statistical Manual (DSM) stressor criteria, but that he did not report psychological symptoms meeting DSM PTSD symptom criteria.  He specified that the Veteran did not report symptoms that met criterion C and that he did not report significant psychosocial dysfunction that could be attributed to PTSD-like symptoms.    

A VA outpatient record dated in July 2008 indicates that a PTSD screen was positive.  The Veteran endorsed nightmares, avoidance, hyper vigilance, and detachment.  

On VA examination in March 2012, the Veteran's history was reviewed.  The Veteran and his wife described various situational stressors, to include his health and financial concerns, as well as the health of their daughter.  With respect to military stressors, the Veteran indicated that when the Desert Storm ground war kicked off in 1991 he was 300 yards away from someone who was killed by stepping on a mine.  He stated that his emotional reaction was a sense of reality, and indicated "I don't scare" but admitted that he feared death but otherwise enjoyed the adrenaline rush from the fear.  With regard to PTSD, the examiner noted that there was no intrusive ideation and that the Veteran did not describe active avoidance symptoms affecting interpersonal functioning.  He noted that while the Veteran indicated that he carried a gun legally everywhere he went and sat with his back to the wall, he stated that hyper vigilance was not a symptom that bothered him.  The Veteran noted that he had some problems maintaining sleep and some occasional exaggerated startle.  The examiner concluded that the Veteran's combat experiences were related to the fear of hostile military or terrorist activity, met Criterion A, and that the stressor was adequate to support the diagnosis of PTSD.  However, he indicated that the traumatic event was not persistently re-experienced, and that there was no persistent avoidance of stimuli associated with the trauma or a numbing of general responsiveness.  He did acknowledge that the Veteran experienced difficulty falling or staying asleep, irritability and outbursts of anger, and exaggerated startle response, but ultimately concluded that the Veteran did not meet the full criteria for a diagnosis of PSTD.  He pointed out that the symptoms noted were not exclusive to traumatic stress exposure and together did not constitute a disorder due to combat stress exposure.  The diagnosis was adjustment disorder not otherwise specified.  

The examiner explained that the Veteran was not diagnosed with PTSD because although he had a combat related stress or for which he acknowledged some feeling fear of hostile military or terrorist activity, he did not report currently having re-experiencing or avoidance symptoms associated with the combat traumatic stressor.  He noted the Veteran's report of sleep disturbance, excessive anger, and some exaggerated startle, but that such did not appear to be exclusive to traumatic stress exposure.  He noted that the diagnosis of adjustment disorder not otherwise specified was indicated due to the Veteran and his wife's perception that his anger is a mild issue for at least the past year and that the Veteran and his wife linked it to chronic nonservice-connected health problems and their effect on his ability to work and feel productive, health concerns for his daughter, and deaths of friends in the previous year.  He noted that when the Veteran discussed the lasting effects of his military stress exposure, it was in terms of non-traumatic experiences (e.g., typical patterns of sleeping in military settings continuing to the present).  He concluded that the currently diagnosed adjustment disorder was not related to military combat stress exposure.

		

PTSD

Service connection for PTSD requires medical evidence diagnosing the condition in accordance with VA regulations; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.  If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d), (f).  In this case, the record reflects combat service.  Thus, the Board concludes that the evidence establishes the occurrence of the Veteran's claimed combat stressors.

The Board observes that effective July 12, 2010, the regulations governing adjudication of service connection for posttraumatic stress disorder (PTSD) were liberalized, in certain circumstances, with respect to the evidentiary standard for establishing the required in-service stressor.  For cases pending before VA as of that date, the following regulation applies:

If a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.  38 C.F.R. § 3.304 (f)(3); see 75 Fed. Reg. 39843 (July 13, 2010).  

In this case, the Veteran does not have a current diagnosis of PTSD; therefore, this amendment does not apply.  

After careful consideration of the evidence pertaining to this issue, the Board finds that service connection for PTSD is not warranted.  In this regard, the Board notes that a key element to establishing service connection is to show that Veteran has the claimed disability.  This element may only be shown through evidence of a diagnosis.  In this case, the Board acknowledges that a VA outpatient record contains a positive PTSD screen.  No diagnosis of PTSD was made at that time.  On the other hand, two VA examiners conducted clinical interviews and reviewed the record in reaching their conclusions that the Veteran did not meet the diagnostic criteria under the DSM-IV for a diagnosis of PTSD.  Each explained the basis for concluding that a diagnosis of PTSD was not appropriate.  In assigning high probative value to the VA examiners' opinions, the Board notes that they had the claims file for review, specifically discussed evidence contained in the claims file, obtained a history from the Veteran, and conducted complete examinations.  There is no indication that the VA examiners were not fully aware of the Veteran's past psychiatric history or that they misstated any relevant fact.  The Board thus finds the VA examiners' opinions to be of greater probative value than the Veteran's unsupported statements.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  

The Board has also considered the Veteran's own assertion that he has PTSD.  However, while he is competent to describe symptoms and when they occurred, he is not necessarily competent to identify the specific underlying psychiatric disorder that is the source of those symptoms.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions).  Thus, in determining whether he has PTSD, the Board places far more probative weight on the clinical findings of the VA examiners who conducted full and comprehensive assessments.

The Board recognizes that the Court has held that 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).  However, the Board concludes that the weight of the evidence is against a finding of a PTSD diagnosis conforming to the DSM-IV at any time during the course of the appeal.  Therefore, the holding in McClain is inapplicable. 

Under these circumstances, the Board must conclude that the Veteran has not met the regulatory requirements of entitlement to service connection for PTSD, and that, on this basis, his claim must be denied.  

	Acquired Psychiatric Disorder other than PTSD

Upon careful consideration of the foregoing evidence, the Board concludes that service connection is not warranted for any other acquired psychiatric disorder, including an adjustment disorder.  While the evidence does reveal that the Veteran has a diagnosis of adjustment disorder, the most competent and probative evidence of record does not etiologically link any such diagnosis to service or any incident therein.  As pointed out by the March 2012 VA examiner, the Veteran's self report and that of his wife indicated that the adjustment disorder symptoms were linked to chronic nonservice-connected health problems, health concerns for his daughter, and the deaths of friends.  

The March 2012 VA examiner determined that the current adjustment disorder is not related to service.  Rather, he attributed it to current stressors such as health and financial problems.  He provided a reasoned opinion based on a complete review of the Veteran's history, interview and examination.  In assigning high probative value to the VA examiner's opinion, the Board notes that he had the claims file for review, specifically discussed evidence contained in the claims file, obtained a history from the Veteran and his wife, and conducted a complete examination.  There is no indication that the VA examiner was not fully aware of the Veteran's past psychiatric history or that he misstated any relevant fact.  The Board thus finds the VA examiner's opinion to be of greater probative value than the Veteran's unsupported statements.  See Prejean.

To the extent that the Veteran asserts that his current adjustment disorder is related to service, the Board observes that he may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and his assertions in that regard are entitled to some probative weight.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  He is competent to report incidents in service and symptoms since then.  He is not, however, competent to render an opinion as to the cause or etiology of the currently diagnosed psychiatric disorder because he does not have the requisite medical knowledge or training, and because such matters are beyond the ability of a lay person to observe.  See Rucker v. Brown, 10 Vet. App. 67, 71 (1997); see also Jandreau.  As discussed, the VA examiner considered the Veteran's documented history, but ultimately concluded that the current psychiatric disorder is not related to service.  The Board finds the most probative evidence of record to be this opinion by the competent VA health care provider.  Even if the Veteran's statements asserting that his psychiatric disorder is related to service were found to be competent, credible and probative, they are still outweighed by the examiner's opinion.  The opinion was provided by a medical professional who reviewed the history, interviewed the Veteran, and provided opinions supported by rationale. 

The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service.  While the record contains a psychiatric diagnosis, the preponderance of the evidence is against finding that these diagnoses are related to any injury or disease in service.  The Board finds that the negative record at service discharge and for years following service is more probative than the Veteran's more recent statements.  See Jandreau.  

Absent credible and competent lay or medical evidence relating this claimed disability to service, the Board concludes that the claim of entitlement to service connection must be denied.  The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal.  Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102 (2013). 

	New and Material Evidence

Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002).  The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 

New evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a). 

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible").

In this case, service connection for a left knee condition was denied in January 1994.  The RO specified that service connection was denied because there was no current evidence of a diagnosis.  

At the time of the January 1994 rating decision, the record did not include evidence showing a diagnosis referable to the Veteran's left knee.

The evidence added to the record since the January 1994 rating decision includes medical records indicating a diagnosis referable to the Veteran's left knee.  Specifically, the report of an April 2008 VA examination indicates the Veteran's report of pain in the left knee.  The diagnosis was sprain of both knee joints with complaints of occasional pain, more in the left.  Because the evidence added to the record since the January 1994 rating decision includes that showing a current diagnosis referable to the Veteran's left knee, the Board finds that a defect existing at the time of the January 1994 rating decision is cured, and the claim may be reopened.

The reopened claim will be addressed in the REMAND that follows this decision.

Ratings

Disability evaluations are determined by the application of a schedule of ratings, which is based on average industrial impairment.  38 U.S.C.A. § 1155.   A proper rating of the Veteran's disability contemplates its history, 38 C.F.R. § 4.1, and must be considered from the point of view of a Veteran working or seeking work.  38 C.F.R. § 4.2.

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 required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

Regarding the Veteran's claim for an initial compensable evaluation for bilateral hearing loss disability, the Board observes that in cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim.  Fenderson v. West, 12 Vet. App. 119 (1999).  The Board has concluded that the disability has not significantly changed and that a uniform evaluation is for application.

With regard to the Veteran's scars, the Board notes that where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  38 C.F.R. §§ 4.1, 4.2 (2013); see also Francisco v. Brown, 7 Vet. App. 55 (1994).  In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  The Board has concluded that the disabilities have not significantly changed and that uniform evaluations are warranted for the period considered.

	Hearing Loss

Evaluations of hearing loss range from noncompensable to 100 percent, based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second.  38 C.F.R. § 4.85(a) and (d) (2013).

To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2013).  The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

When the pure tone thresholds at the four specified frequencies (1000, 2000, 3000, and 4000 hertz) are 55 decibels or more, or when the pure tone thresholds are 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  That numeral will then be elevated to the next highest Roman numeral.  38 C.F.R. § 4.86.  The evidence demonstrates that the appellant did not have a threshold of 55 decibels or more at the indicated frequencies or a puretone threshold of 30 or less at 1000 Hertz and 70 or more at 2000 Hertz.  As such § 4.86 does not apply.

Examinations are conducted using the controlled speech discrimination tests, together with the results of the puretone audiometry test.  The horizontal lines in table VI, referenced in 38 C.F.R. § 4.85, represent nine categories of percent of discrimination based upon the controlled speech discrimination test.  The vertical columns in table VI represent nine categories of decibel loss based upon the puretone audiometry test.  The numeric designation of impaired efficiency (I through XI) will be determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to puretone decibel loss; thus, for example, with a percent of discrimination of 70 and average puretone decibel loss of 64, the numeric designation is V for one ear.  The same procedure will be followed for the other ear.  The numeric designations are then applied to Table VII, also referenced in 38 C.F.R. § 4.85, to determine the Veteran's disability rating.

On VA examination in April 2008, diagnostic testing resulted in the following puretone thresholds:




HERTZ




500
1000
2000
3000
4000
Average
Right
15
15
15
50
55
34
Left
25
25
35
55
60
44

Speech discrimination scores were 96 percent bilaterally.

On VA fee basis examination in September 2009, the Veteran reported difficulty understanding in groups and when there was background noise.  Diagnostic testing resulted in the following puretone thresholds:






HERTZ




500
1000
2000
3000
4000
Average
Right
15
25
20
40
45
33
Left
20
25
40
50
60
44

Speech discrimination scores were 100 percent for the right ear and 96 percent for the left.  

An additional VA examination was carried out in August 2012.  The Veteran reported that he had difficulty understanding speech with background noise and in groups, especially women's' and children's' voices.  He noted that he relied on visual cues to help with communication.  Diagnostic testing resulted in the following puretone thresholds:




HERTZ




500
1000
2000
3000
4000
Average
Right
15
15
10
60
50
34
Left
20
20
45
60
70
49

Speech discrimination scores were 92 percent for the right ear and 80 percent for the left.  

The Board observes that application of the regulation to the findings of the on the April 2008 audiometric evaluation results in a numeric designation of I for the right ear and I for the left.  A noncompensable evaluation is warranted when those values are applied to Table VI.  38 C.F.R. § 4.85, 4.85, Diagnostic Code 6100 (2013).  The audiometric findings of the September 2009 testing result in numeric designations of I for the right ear and I for the left.  This results in a noncompensable rating when those values are applied to Table VI.  Id.  The audiometric findings of the August 2012 examination result in a numeric designation of I for the right ear and III for the left; such results in a noncompensable evaluation when those values are applied to Table VI.  Id.  Accordingly, the Board concludes that the current noncompensable evaluation is appropriate.

      
Extraschedular Consideration - Hearing Loss

The potential application of various provisions of Title 38 of the Code of Federal Regulations has also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards."  38 C.F.R. § 3.321(b)(1).  The Court of Appeals for Veterans Claims has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  See Thun v. Peake, 22 Vet. App 111, 115-16 (2008).  First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran'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."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

The Veteran has reported that background noise is uncomfortable and , that he has difficulty understanding with background noise.  With regard to whether the schedular criteria for hearing loss are adequate in this case, although the assignment of disability evaluations is based on a mechanical application of numerical tables to the numerical findings upon audiological evaluation, the Board finds that the numerical criteria in the rating schedule contemplate the impairment of function that is experienced by the Veteran.  Specifically, the Board determines that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIa were chosen in relation to clinical findings of the impairment experienced by Veterans with certain degrees and types of hearing disability.  In this regard, the Veteran's difficulty hearing is contemplated by the schedular criteria.  In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86.

The rating criteria for hearing loss were last revised, effective June 10, 1999.  See 64 Fed. Reg. 25,200 (May 11, 1999).  In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these Veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids.  VHA had found through clinical studies of Veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment.  Id.  The decibel threshold requirements for application of Table VIa were based on the findings and recommendations of VHA.  The intended effect of the revision was to fairly and accurately assess the hearing disabilities of Veterans as reflected in a real life industrial setting.  59 Fed. Reg. 17,295 (April 12, 1994).  Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria.

The Board acknowledges the Veteran's argument that his bilateral hearing loss disability warrants a compensable evaluation.  However, the Board has determined that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule.  The schedular rating criteria adequately contemplate the Veteran's symptomatology, and the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet.App. 337 (1996); Shipwash v. Brown, 8 Vet.App. 218, 227 (1995).

	
      
Skin

As an initial matter, the Board notes that during the pendency of the appeal, the applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended effective October 2008.  However, the October 2008 revisions are only applicable to applications for benefits received by the VA on or after October 23, 2008.  See 73 Fed. Reg. 54,708 (September 23, 2008).  As the Veteran filed his claim prior to this date, and has not expressly requested review under the revised criteria, only the pre-October 2008 version of the schedular criteria is applicable.  

The Veteran is currently in receipt of noncompensable evaluations for a postoperative appendectomy scar and a postoperative cystectomy scar at the right knee.  He asserts that these scars warrant a compensable evaluation.

On VA examination in April 2008, the examiner noted that the Veteran had a  history of an epidermal inclusion cyst on the right anterior knee and appendectomy.  The Veteran denied pain, redness, and inflammation.  On physical examination, there was a well-healed surgical scar of 4 by 1 centimeters over the right anterior knee below the kneecap.  It was whitish and nontender to palpation.  It did not cause any functional limitation of the right knee joint.  Physical examination also revealed a 12 centimeter by 2 millimeter residual appendectomy scar.  It was whitish, nontender, and not productive of functional limitation.

Scars, other than head, face, or neck, that are deep or that cause limited motion are rated under 38 C.F.R. § 4.118, Diagnostic Code 7801 based on the size of the are affected.  A deep scar is one associated with underlying soft tissue damage.  38 C.F.R. § 4.118, Diagnostic Code 7801, Note 2. 

Scars, other than head, face, or neck, that are superficial and that do not cause limited motion covering an area or areas of 144 square inches (929 sq. cm.) or greater are rated as 10 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7802.  Scars in widely separated areas, as in two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with § 4.25 of this part. 38 C.F.R. § 4.118, Diagnostic Code 7802, Note 1.  A superficial scar is one not associated with underlying soft tissue damage.  38 C.F.R. § 4.118, Diagnostic Code 7802, Note 2. 

Diagnostic Code 7803 provides that a 10 percent rating is warranted for scars that are superficial and unstable.  38 C.F.R. § 4.118, Diagnostic Code 7803. 

Diagnostic Code 7804 provides a 10 percent evaluation for scars which are superficial and painful on examination.  A superficial scar is one not associated with underlying soft tissue damage.  38 C.F.R. § 4.118, Diagnostic Code 7804, Note 1.

Diagnostic code 7805 provides for evaluation based on limitation of function of affected part.  38 C.F.R. § 4.118, Diagnostic Code 7805. 

		Appendectomy Scar

The Veteran's post operative appendectomy scar is currently evaluated as noncompensably disabling pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7804.  

Having reviewed the evidence pertaining to this scar, the Board has determined that a compensable evaluation is not for application.  The record does not demonstrate that the scar is deep or causes limited motion.  Notably, there is no underlying tissue damage, and the scar is not adherent, making it superficial.  The scar is not unstable.  The Veteran has not indicated that it is painful in any way.  The scar does not cover an area 144 square inches (929 sq. cm.) or greater.  It is not shown to cause functional limitation.  Accordingly, the Board finds that the criteria for a compensable evaluation have not been met. 

In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. 

		
      
Cystectomy Scar

The Veteran's post operative right knee cystectomy scar is currently evaluated as noncompensably disabling pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7819-7804.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.  In this case the Veteran's service-connected postoperative cystectomy scar of the right knee is classified as a benign skin neoplasm (Diagnostic Code 7819), and the scar following surgery to remove the cyst (Diagnostic Code 7804) is the residual condition under which the disability is evaluated.  Diagnostic Code 7819 directs that the disability be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or on impairment of function.  38 C.F.R. § 4.118.

Having reviewed the evidence pertaining to this scar, the Board has determined that a compensable evaluation is not for application.  The record does not demonstrate that the scar is deep or causes limited motion.  Notably, there is no underlying tissue damage, and the scar is not adherent, making it superficial.  The scar is not unstable.  The Veteran has not indicated that it is painful in any way.  The scar does not cover an area 144 square inches (929 sq. cm.) or greater.  It is not shown to cause functional limitation.  Accordingly, the Board finds that the criteria for a compensable evaluation have not been met. 

In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. 

      Extraschedular Consideration - Scars

Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1) (2012); see also Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veterans entitled to an extraschedular rating.  First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected scars.  The medical evidence fails to demonstrate, at any time during the appellate period, symptomatology of such an extent that application of the ratings schedule would not be appropriate.  In fact, as discussed in detail above, the symptomatology of the Veteran's scars is specifically contemplated under the appropriate rating criteria.  Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule.

Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot.  In short, the evidence does not support the proposition that the Veteran's service connected disabilities present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2013).


ORDER

Entitlement to service connection for PTSD is denied.

Entitlement to service connection for an acquired psychiatric disorder, including an adjustment disorder, is denied.

The petition to reopen the claim of entitlement to service connection for a left knee disability is granted.

Entitlement to an initial compensable evaluation for bilateral hearing loss disability is denied.

Entitlement to a compensable evaluation for a post-operative appendectomy scar is denied.

Entitlement to a compensable evaluation for post-operative cystectomy scar of the right knee is denied.


REMAND

As an initial matter the Board observes that there are two pivotal cases which address the need for a VA examination, Duenas v. Principi, 18 Vet. App. 512   (2004) and McLendon v. Nicholson, 20 Vet App. 79 (2006).  In McLendon, the Court held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  Id. at 81.  In Duenas, the Court held that a VA examination is necessary when the record: (1) contains competent evidence that the Veteran has persistent or recurrent symptoms of the claimed disability and (2) indicates that those symptoms may be associated with his active military service.

Service treatment records reflect that in April 1990, the Veteran reported having injured his knees while on a jet ski.  The current record indicates a diagnosis of sprain.  In this case the Board concludes that, as there are medical findings pertaining to the left knee and an indication that such findings might be related to service, a VA examination is warranted to determine the etiology of any currently present left knee disability.  

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination by a physician to determine the etiology of any currently present left knee disability.  The claims folder should be forwarded to the examiner for review.  The examiner should be directed to elicit a complete history from the Veteran. 

All indicated studies should be performed, and their results reported. 

Following review of the claims file and examination of the Veteran, the examiner should identify any currently present left knee disability.  The examiner should then provide an opinion regarding whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any currently present left knee disability began in service or is related to any disease or injury in service. 

The complete rationale for all opinions expressed should be set forth in the examination report.  

If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 

2.  The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655.

3.  Upon completion of the action above, review the examination and addendum reports to ensure that they address the questions presented.  Any inadequacies should be addressed prior to recertification to the Board.

4.  Then, readjudicate the claim on appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand.  If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto.

The appellant 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).




______________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs