Citation Nr: 1751349 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 12-22 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a compensable rating for status post (s/p) rib fracture (claimed as two broken ribs). 4. Entitlement to a compensable rating for scars, s/p rib fracture (claimed as punctured lung). REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from November 1965 to November 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated December 2011 and January 2013 of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The December 2011 rating decision granted service connection for the Veteran's s/p rib fracture and two scars s/p rib fracture, and assigned a non-compensable disability rating for both conditions effective July 18, 2011, the date of the Veteran's claim. As the maximum benefit was not granted, the issues remain in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). Additionally, the January 2013 rating decision denied service connection for bilateral hearing loss and tinnitus which are presently before the Board for further appellate review. In the Veteran's first substantive appeal, the Veteran declined to have a hearing; however, the Veteran subsequently requested a travel-board hearing in his second substantive appeal for bilateral hearing loss and tinnitus, but later withdrew his request in written correspondence dated February 2016. As such, the Board concludes that no hearing request is currently before the Board. FINDINGS OF FACT 1. The Veteran does not have right ear hearing loss for VA compensation purposes. 2. The Veteran's left ear sensorineural hearing loss is related to in-service noise exposure. 3. The Veteran's tinnitus is related to in-service noise exposure. 4. The Veteran's service-connected residuals of a left seventh rib fracture are manifested by complaints of pain; and removal of one rib or resection of two or more ribs without regeneration, has not been demonstrated. 5. The Veteran's scars are not deep and non-linear measuring a minimum of at least 6 square inches (39 sq. cm.), nor with an area or areas of 144 square inches (929 sq. cm.) or greater, and neither scar is painful or unstable. CONCLUSIONS OF LAW 1. Right ear hearing loss was not incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303, 3.385 (2017). 2. Left ear sensorineural hearing loss was incurred in active military service. 38 U.S.C. §§ 1110, 1131, 1154, 5107 (2012); 38 C.F.R. § 3.102, 3.303, 3.385 (2017). 3. The Veteran's tinnitus was incurred in active military service. 38 U.S.C. §§ 1110, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 4. The criteria for an award of a compensable evaluation for the Veteran's residuals of a left seventh rib fracture have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321 (b)(1), 4.7, 4.71a, Diagnostic Code 5299-5297 (2017). 5. The criteria for an award of a compensable evaluation for the Veteran' scars x 2, s/p rib fracture have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321 (b)(1), 4.7, 4.118, Diagnostic Code 7802 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has complied with the duties to notify and assist in this case. The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, the evidence 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 or "nexus" between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 48 (1995). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. 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. As an organic disease of the nervous system is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Daye v. Nicholson, 20 Vet. App. 512 (2006). Under the benefit-of-the-doubt rule embodied in 38 U.S.C.A. § 5107(b), in order for a claimant to prevail, there need not be a preponderance of the evidence in the veteran's favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1994). A.) Bilateral Hearing Loss The Veteran seeks service connection for bilateral hearing loss contending that his military occupational specialty (MOS) as a vehicle equipment mechanic caused his current hearing loss disability. As mentioned, service connection requires a current disability, an in-service injury or event, and a causal relationship between the two. Turning to the evidence of record, the Board cannot determine the level of the Veteran's hearing while in service as VA has determined that the Veteran's STRs are unavailable. See VA Memo dated December 2012. When STRs are lost or missing, the Court has held that VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the Veteran's medical records have been destroyed." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). This standard for VA is very high. The evidence shows that the Veteran has a current diagnosis of sensorineural hearing loss in both ears; however, for VA compensation purposes, the Veteran meets this standard in his left ear only. The level of right ear hearing loss measured during the Veteran's December 2012 VA audiometric examination does not meet the requirements for a current disability under VA's regulations codified at 38 C.F.R. § 3.385. There are no other audiometric examinations of evidence to consider. Accordingly, in the absence of a current disability for VA compensation purposes in the right ear, the Veteran's claim for service connection for right ear hearing loss must be denied. With regard to the left ear, the Board concedes that the Veteran suffered acoustic trauma while in service. The Veteran's DD-214 confirms that the Veteran's MOS was that of a Wheeled Vehicle Mechanic. Additionally, in the Duty MOS Noise Exposure Listing, the Veteran's MOS is listed as having a highly probable probability of exposure to hazardous noise. Therefore, acoustic trauma is conceded which satisfies the element of an in-service event or injury required for service connection. In the Veteran's December 2012 VA audiometric examination, the examiner did not relate the Veteran's current hearing loss to his military service due to the lack of audiometric data available from the Veteran's missing STRs. Additionally, the examiner noted that since the Veteran reported only driving the fuel truck to the combat engineers, only firing weapons during basic and AIT, and not being involved in combat noise, the Veteran's hearing loss was not related to service. The examiner further noted that the Veteran's current thresholds are age appropriate as well. In light of the evidence of record, the Board notes that the absence of service treatment records showing in-service evidence of hearing loss is not fatal to the claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Therefore, the Board finds the examination inadequate in this regard. Hearing loss is manifested by symptoms that the Veteran is competent to report. The Veteran has reported that he was exposed to noise during military service while working around heavy equipment. Given the fact that the Veteran's MOS is deemed as being "highly probable" for noise exposure, the Board finds that the Veteran's assertions of in-service noise exposure are credible and consistent with his service. 38 U.S.C.A. § 1154(a) (due consideration must be given to the places, types, and circumstances of a veteran's service). Additionally, the Veteran has asserted hearing loss symptomatology since service. Considering the above circumstances, the Board finds that the Veteran's lay assertions of in-service noise exposure and symptoms since service are probative. Therefore, the Board finds that the preponderance of the evidence weighs in favor of the Veteran and service connection for left ear hearing loss is granted. B.) Tinnitus The Veteran also contends that he has tinnitus as a result of in-service noise exposure reporting that he first noticed tinnitus a long time ago, and that it is constant now. The Board recognizes that tinnitus is capable of lay observation and finds the Veteran competent and credible in this regard. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). The Veteran has a current diagnosis of tinnitus by the same examiner in his December 2012 audiometric examination referenced above; however, again, the VA examiner did not relate the Veteran's tinnitus to his military service for the same reasons she declined to do so for the Veteran's hearing loss. Nonetheless, the Board has determined the examination to be inadequate for this reason. As the Board has conceded that the Veteran suffered acoustic trauma while in service, the Veteran is competent to report tinnitus, and the record does not reveal a plausible alternative to the etiology of the Veteran's tinnitus, the Board finds that the preponderance of the evidence is in favor of the award of service connection for tinnitus. See Gilbert v. Derwinski, 1. Vet. App. 49 (1991). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2017). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2 (2015); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2017). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14 (2017). Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. Id. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, as in this case, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See Hart, 21 Vet. App. at 505. The Veteran's residuals of his rib fracture has been assigned a non-compensable disability rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5299-5297. It is not expected that all cases will show all the findings specified. However, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Under 38 C.F.R. § 4.20, evaluation by analogy is permitted where the rating schedule does not provide a specific diagnostic code to rate the disability. 38 C.F.R. § 4.20. Hence, the residuals of the rib fracture have been evaluated by analogy, using the criteria for removal of the ribs under Diagnostic Code 5297. Under Diagnostic Code 5297, removal of one or resection of two or more ribs without regeneration warrants a 10 percent rating. Removal of two or more ribs warrants higher evaluations. 38 C.F.R. § 4.71(a), Diagnostic Code 5297. In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). A). Status post (s/p) Rib Fracture The Veteran is seeking a compensable evaluation for his service-connected s/p rib fracture. The Veteran contends that his rib pain prevents him from sleeping on his left side or stomach, and that his ribs hurt at times when he coughs. He further noted that he has not been examined by a doctor for his rib fracture residuals in the last 44 years. In November 2011, the Veteran received a VA examination for his rib pain which included a chest x-ray, and an x-ray of his ribs. The Veteran's x-rays revealed that the Veteran's right ribs are normal with no soft tissue, joint or osseous. The radiologist concluded that the Veteran's chest and right ribs x-rays were negative except for the old fracture of the left anterior seventh rib; otherwise negative. During the examination, the Veteran reported pain in the left chest which occurs one time per month and lasts for two days. The Veteran further reported that the pain is localized, crushing, and can be exacerbated by physical activity. The Veteran noted that the pain is relieved by rest, he rated the pain as a "3" on a scale from one to ten, and also indicated that at the time of pain, he can function without medication. Additionally, the Veteran denied experiencing any of the following symptoms: weakness, redness, fever, stiffness, giving way, debility, swelling, locking, abnormal motion, heat nor drainage in regards to his bone condition. The Veteran reported that he was never hospitalized nor had any surgery for the above condition, he is not receiving any treatment for his condition, and he does not experience any overall functional impairment from this condition. The examiner noted that the Veteran's chest and lungs had no evidence of tenderness on palpation, breath sounds are symmetric, no rhonchi, rales or wheezes, and expiratory phase is within normal limits. The examiner diagnosed the Veteran with s/p rib fracture, residual tenderness and deformity. The examiner noted a functional limitation in the Veteran's usual occupation and daily activity of mild decrease in physical activity secondary to chest wall discomfort. In February 2016, the Veteran contacted the VAMC Houston via telephone with a complaint of pain in the left side of his rib cage. The Veteran reported that the pain has been going on since his service in Vietnam and rated the pain an "8" out of ten. The Veteran further reported lying down and moving on the left side of his body aggravates the pain, he has no prescribed medications, and the pain lasted "just a few minutes." The Veteran indicated that he has had the complaint for many years and that certain movements cause the pain. After a review of the evidence of record, the Board finds that a compensable disability rating is not warranted at any time during the appeal period. As mentioned, the Veteran's x-rays were normal, aside from the imaging showing the Veteran's previous fracture of his seventh rib. Similarly, the VA examiner diagnosed the Veteran with residual tenderness and deformity finding no evidence of tenderness on palpation, and that the Veteran's expiratory phase was within normal limits. Additionally, there is no medical evidence of record showing that the Veteran has had one or resection of two or more ribs without regeneration that would warrant a compensable rating. The Board has also considered functional loss and finds that the evidence does not demonstrate that a compensable evaluation is warranted. During the Veteran's November 2011 VA examination, the Veteran denied symptoms of weakness, redness, fever, stiffness, giving way, debility, swelling, locking, abnormal motion, heat nor drainage in regards to his bone condition. Furthermore, there is no evidence of any other significant functional limitation caused by the Veteran's rib pain as the Veteran reported that he does not experience any overall functional impairment from this condition, and the examiner noted only a mild decrease in physical activity due to chest wall discomfort, with pain lasting only a few minutes. Additionally, the only other evidence of record regarding the Veteran's s/p rib fracture is from a telephonic report in February 2016 when the Veteran reported having left side rib pain. The Board notes that the Veteran may experience rib pain, but pain alone does not constitute functional loss under VA regulations. Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Here, the Veteran's pain does not constitute functional loss based on his own statements and the evidence of record. The Board also recognizes that the Veteran is competent to report symptoms, such as pain, because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of his disability has been provided by the physician who examined him during the current appeal and who rendered an opinion in conjunction with the evaluation. The medical findings (as provided in the examination report) directly address the criteria under which this disability is evaluated. As such, the Board finds the VA examination to be more probative than the Veteran's subjective evidence of complaints of increased symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest in the outcome of a proceeding may affect the credibility of testimony). In sum, a compensable rating for the Veteran's service-connected s/p rib fracture is not warranted. B). Status post Rib Scars The Veteran is currently service-connected at a non-compensable rating for two scars s/p rib fracture, and seeks a compensable rating for this condition. The Veteran reports always having to wear a shirt because he his embarrassed due to the scar across his chest. In the Veteran's November 2011 VA examination referenced above, the Veteran reported that he does not have any symptoms of persistent fever, cough with sputum, night sweats, or pain over the chest area on exertion or hemoptysis. The Veteran also reported that he does not require any treatment for a respiratory condition, and that he does not experience any overall functional impairment. The examiner noted two linear scars: one measuring 1.7 cm. by 0.7 cm., and the other measuring 29 cm. by 0.3 cm. Both scars are located on the anterior side of the trunk precisely located left anterior chest. The examiner reported that the scars are not painful on examination, there is no skin breakdown, and the scars are superficial with no underlying tissue damage. The examiner also noted that there is no inflammation, edema, no keloid formation, and the scars are not disfiguring. Further, the scars do not limit the Veteran's motion, and there is no limitation of function due to the scar. The examiner ultimately diagnosed the Veteran with s/p rib fracture, residual tenderness and deformity noting that the Veteran's rib exam shows that the Veteran does not have any complications such as cor pulmonale, right ventricular hypertrophy, pulmonary hypertension or chronic respiratory failure with carbon dioxide retention. The Veteran's scars are evaluated under Diagnostic Code 7802 and are currently assigned a non-compensable disability rating. A compensable rating is not assigned unless there is a burn scar or other scar due to other causes, not of the head, face, or neck, that is superficial and non-linear with an area or areas of 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802. Considering the evidence above, the Board finds that a compensable rating is not warranted at any time during the appeal period. The Board notes that there is no other evidence of record, including complaints and/or treatment for the Veteran's two scars, for the Board to consider. Therefore, the Board finds that the most probative evidence of record goes against the Veteran's claim. The VA examiner has determined that the Veteran's scars are linear, measuring much less than the amount required for a compensable rating. As mentioned, the VA examiner noted that the Veteran's scars are not painful on examination, there is no skin breakdown, and the scars are superficial with no underlying tissue damage. Moreover, the Veteran reported not having pain in his chest area, and that he has no functional impairment due to his scars; his only complaint has been that he is embarrassed by his scars, which is not enough to warrant a compensable evaluation. Therefore, the Board finds that the preponderance of the evidence weighs against the Veteran's claim for a compensable evaluation for the Veteran's rib scars. Accordingly, the claim is denied. ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to a compensable rating for residuals of a rib fracture (claimed as two broken ribs) is denied. Entitlement to a compensable rating for scars, status post rib fracture (claimed as punctured lung) is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs