Citation Nr: 1338918 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 11-01 819 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to an initial compensable evaluation for Cesarean delivery, complicated by subfacial hematoma, with residual scar and adhesions (claimed as abdominal complications from pregnancy, hereinafter 'abdominal scar'). ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1980 to August 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran was scheduled for a RO hearing in January 2011 and scheduled for a Board hearing in June 2011; however the Veteran did not appear for either hearing. As the Veteran has not offered a statement of good cause as to why she missed the hearings, the Board will proceed as if the hearing request had been withdrawn. 38 C.F.R. § 20.702(d) (2013). FINDINGS OF FACT 1. The competent evidence of record does not indicate the Veteran has a bilateral hearing loss disability for VA purposes. 2. The Veteran's tinnitus is related to service. 3. Throughout the appeal the Veteran's abdominal scar has been manifested by no more than a well-healed, non-elevated, non-depressed, superficial scar measuring 13 centimeters (cm) x .3 cm. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral hearing loss disability have not been met. 38 U.S.C.A. §§ 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2013). 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 3. The criteria for an initial compensable evaluation for an abdominal scar have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.118, Diagnostic Code 7802 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Here, the Veteran was provided with the relevant notice and information in a June 2010 letter prior to the initial adjudication of her claims. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Goodwin v. Peake, 22 Vet. App. 128, 136 (2008) (holding 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 proven and thus section 5103(a) notice is no longer required because the purpose that the notice is intended to serve has been fulfilled). She has not alleged any notice deficiency during the adjudication of her claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records and VA records have been obtained and associated with the claims file. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. McLendon v. Nicholson, 20 Vet. App. 79 (2006), see also Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The Veteran was afforded an audiological VA medical examination in September 2010 and a general VA medical examination in August 2010 to determine the severity of her abdominal scar. These opinions were rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examiners obtained an accurate history. The examiners provided a detailed explanation for the opinions that were reached. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder since she was last examined or that the audiological examination was inadequate. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Therefore, the Board finds that the examinations are adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted for a chronic disease, including hearing loss, when it is manifested to a compensable degree within one year of separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Bilateral Hearing Loss & Tinnitus The Veteran is alleging that her current hearing loss and tinnitus are due to exposure to loud noise in the military, including working as a diesel mechanic. See e.g., July 2010 statement. While the Veteran has tinnitus and the claim will be granted on the benefit of the doubt doctrine, she does not have hearing loss for VA purposes and the claim of service connection for the disorder will be denied. With respect to claims of service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected. Id. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 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. The Veteran worked as a diesel mechanic while in service. The Veteran's service duties are consistent with those of an aviation support equipment technician or machinery repairman which have been identified as an occupation where there was a high probability of noise exposure. See Duty MOS Noise Spreadsheets, Veterans Benefits Administration Fast Letter 10-35 (Dep't of Veterans Affairs, September 2, 2010). In reviewing the service treatment records there is no evidence that the Veteran complained of tinnitus or hearing loss at any point during active duty. Following service the Veteran has submitted statements indicating that she experienced hearing loss and ringing in her ears beginning in service and continuing on thereafter. See e.g., July 2010 statement. The Veteran was afforded a VA examination in September 2010. The pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 20 25 LEFT 20 20 15 25 30 The Veteran's speech recognition scores on the Maryland CNC Test were 94-100 percent for the right ear and 94-100 percent for the left ear. She stated that her tinnitus began in service when she was exposed to weapons fire and noise from generators, power tools, and the engine room. She reported tinnitus which began 30 years earlier. There is no competent evidence of record to show that the Veteran's bilateral hearing loss disability was measured by an auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz at 40 decibels or greater, or auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz at 26 decibels or greater; or speech recognition scores using the Maryland CNC Test of less than 94 percent. 38 C.F.R. § 3.385. At no time during the appeal period did the Veteran have a bilateral hearing loss disability for VA purposes. Id. Furthermore, the Veteran does not meet the presumption for a hearing loss disability which manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Without a current diagnosis of a disability, the Board cannot grant service connection. To prevail on the issue of service connection, a current disability must have existed on or after the date of application for that disability. See 38 U.S.C.A. § 1131; see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (agreeing that the requirement that a claimant have a current disability before service connection may be awarded is satisfied when a claimant has a disability at the time a VA claim is filed or during the pendency of that claim.). With regard to the claim of tinnitus the evidence is in relative equipoise. The September 2010 VA examiner noted the Veteran's complaints of tinnitus, but did not offer an opinion as to whether it was related to service. The Veteran has stated on multiple occasions that her tinnitus began in service while working as a diesel mechanic. The Veteran is competent to report symptoms of tinnitus and the Board finds her credible in this regard. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Resolving all reasonable doubt in favor of the Veteran, the criteria for a grant of service connection have been met for the claim of tinnitus. The Veteran does not meet the criteria for a bilateral hearing loss disability for VA purposes and accordingly, the claim is denied. 38 U.S.C.A. § 5107 (West 2002). In granting service connection, the Board states no opinion as to the severity of the Veteran's tinnitus for the purpose of establishing a service-connected rating. The determination will be made by the RO on receipt of this decision. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms 'compensation,' 'rating,' and 'service connection' as although related, each having a distinct meaning as specified by Congress). Increased Rating Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran contends that she is entitled to an initial compensable evaluation for her abdominal scar. For the reasons that follow, the Board finds that an increased rating is not warranted. The Veteran's abdominal scar has been rated as zero percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 7802 for superficial and nonlinear scars. Under this Diagnostic Code scars are rated as 10 percent disabling if they are in an area of 144 square inches (929 square (sq.) cm.) or greater. A superficial scar is one not associated with underlying soft tissue damage. Id. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. A maximum of 10 percent is available. The Veteran was afforded a VA examination in August 2010 for her abdominal scar. The Veteran reported that she underwent an emergent Cesarean section surgery in service. Ever since the surgery she has experienced ongoing lower abdominal right pelvic/groin pain and discomfort. The Veteran reported that she experience pain two to three times a day lasting for several seconds in duration. The pain was exacerbated by prolonged standing or walking too quickly. She denied pain or discomfort from her residual scar, although it occasionally itched. On examination the scar measured 13 cm x .3 cm. It was linear, well-healed, skin colored, non-elevated, non-depressed, and non-adherent. It did not cause limitation of movement and there was no loss of underlying tissue or disfigurement. Her occupational activities were limited in that she had decreased mobility and pain. After reviewing the claims file, the Board finds that the Veteran is not entitled to a compensable evaluation for her abdominal scar. Her scar is not in an area or areas of 144 square inches or greater and a compensable evaluation cannot be assigned under Diagnostic Code 7802. The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in her favor. The Board concludes that the objective medical evidence and the Veteran's statements regarding her symptomatology show disability that warrants the assignment of a noncompensable rating. See 38 C.F.R. § 4.7. The Board has considered other potentially applicable Diagnostic Codes to evaluate the Veteran's abdominal scar. Diagnostic Code 7800 pertains to scars located on the head, face, or neck. Diagnostic Code 7801 provides ratings for scars, other than on the head, face, or neck, that are deep and nonlinear. The Board has also considered Diagnostic Code 7804 which relates to scars which are unstable and painful on examination. According to the August 2010 VA examination report, the Veteran's scar is not on the head, face or neck and does not have an area of at least 6 square inches. The scar is also stable and not painful on examination. As such, a compensable evaluation for an abdominal scar is not warranted under Diagnostic Codes 7800-7801 or 7804. At her August 2010 VA examination the Veteran reported pain in her lower abdominal right pelvic area and groin. The examiner noted localized tenderness to the right lower pelvic region without evidence of definable mass or node. There was no evidence of pain with pelvic rock. Accordingly, the Board has also considered whether a separate, or higher, rating is warranted for a gynecological condition. Under Diagnostic Code 7615 for Disease, Injury, or Adhesions of the ovaries or Adhesions of Female Reproductive Organs (diagnostic codes 7610-7615) a compensable evaluation is warranted for symptoms that, at a minimum, require continuous treatment. A noncompensable evaluation is warranted for symptoms that do not require continuous treatment. Under Diagnostic Code 7622 where there is evidence of adhesions and irregular menstruation, a 10 percent evaluation is warranted. The Veteran's adhesions do not require continuous, or any, treatment and Diagnostic Code 7615 does not apply. The Veteran is post-menopausal and accordingly, Diagnostic Code 7622 also does not apply. The Board finds that the Veteran's abdominal scar is most appropriately rated under Diagnostic Code 7802 pertaining to scars. In addition to the medical evidence, the Board has considered the statements of the Veteran in support of her claim. The Veteran, as a layperson, is competent to report on that as to which she has personal knowledge, such as pain and tenderness. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). Since the allegations of these particular symptoms appear to be uncontradicted, even by medical findings of record, the Board also finds them to be credible and, thus, probative. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Without the appropriate medical training and expertise, the Veteran is not further competent to provide a probative (persuasive) opinion on a medical matter, especially the severity of her abdominal scar in relation to the applicable rating criteria. An examiner, including the VA compensation examiner, considered the Veteran's subjective complaints and objective findings in determining the overall severity of her abdominal scar. This determination is multi-factorial, not just predicated on lay statements and other testimony, rather, all of the relevant medical and other evidence. The Federal Circuit Court has recognized the Board's 'authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence.' Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). An initial compensable evaluation for the Veteran's abdominal scar has not been established and the preponderance of the evidence is against the claim for an increased evaluation. See 38 U.S.C.A. § 5107 (West 2002). Extra-Schedular Consideration There is no evidence of exceptional or unusual circumstances to warrant referring this claim for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1). The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, there must be a determination of whether the Veteran'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 extra-schedular rating under 38 C.F.R. § 3.321(b)(1). The Board finds that neither the first nor second Thun element is satisfied here. The Veteran's service-connected abdominal scar is manifested by signs and symptoms such as itching; she also experiences tenderness in her abdomen. These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule. The diagnostic codes in the rating schedule corresponding to scar disabilities provide ratings based on functional effects of the scars, and here the scar is not causing any functional limitation. See 38 C.F.R. § 4.118. Even if the Board were to find that step one of Thun had been satisfied, extraschedular referral would still not be warranted because the Board also finds that Thun step two is not satisfied. See Johnson v. Shinseki, 26 Vet. App. 237, 247 (2013) (en banc) (error in Thun step one analysis is harmless were Board makes an adequate finding that Thun step two is not satisfied). The Veteran's abdominal scar does not present an exceptional disability picture with related factors such as marked interference with employment or frequent hospitalization. 38 C.F.R. § 3.321(b)(1). The Veteran has not been hospitalized for her abdominal scar. As to employment, the August 2010 VA examiner noted that the Veteran's only occupational limitations were that she had decreased mobility and pain. Thus, even if her disability picture was exceptional or unusual, referral would not be warranted. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is granted. Entitlement to an initial compensable evaluation for an abdominal scar is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs