Citation Nr: 1759944	
Decision Date: 12/22/17    Archive Date: 01/02/18

DOCKET NO.  13-03 335A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.

2. Entitlement to an initial disability rating in excess of 10 percent for residuals of a left knee injury.

3. Entitlement to an initial compensable disability rating for residual scar from knee surgery.

4. Entitlement to an initial disability rating in excess of 50 percent for sleep apnea.

5. Entitlement to an initial disability rating in excess of 30 percent for a major depressive disorder.

6. Entitlement to an initial disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine.

7. Entitlement to an initial compensable disability rating for erectile dysfunction. 


ATTORNEY FOR THE BOARD

N. Peden, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 2006 to April 2010.

This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. A March 2011 rating decision granted service connection for residuals of a left knee injury, residual scar from knee surgery, sleep apnea, major depressive disorder, and denied service connection for bilateral hearing loss. An October 2011 rating decision granted service connection for degenerative disc disease of the lumbar spine and erectile dysfunction. The Veteran has appealed the denial of service connection for hearing loss as well as the initial ratings assigned for each of the identified service connected disabilities. 

The Board notes that a claim for an increased rating may include a claim for total disability based on individual unemployability (TDIU). See Rice v. Shinseki, 
22 Vet. App. 447, 453-54 (2009). In his February 2013 Notice of Disagreement, the Veteran raises a claim for TDIU; however, the RO has already granted TDIU for the entire appeal period. 

In February 2013, the Veteran requested a Board travel board hearing. In September 2017, the Veteran received notification that a travel board hearing was scheduled for November 2, 2017, but he did not appear at the hearing and did not explain his absence. As such, the Veteran's hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.704 (2017).

The Board notes that in December 2012, a power of attorney (POA) was executed via VA Form 21-22a, listing Christopher Loiacono as the Veteran's representative. In March 2015, the Veteran's appeal was certified to the Board. Subsequent to the certification of the Veteran's appeal, in correspondence dated in April 2015, the Veteran's representative submitted a letter to the Board indicating that he was withdrawing his representation of the Veteran, which the Board finds tantamount to a Motion to Withdraw Representation. Pursuant to 38 C.F.R. § 20.608  (b)(2), after an appeal has been certified to the Board, a representative may not withdraw services as a representative in the appeal unless good cause is shown on motion, and motion must be in writing and must comply with the criteria set forth in 38 C.F.R. § 20.608  (b)(2). In accordance with this regulatory provision, the Motion to Withdraw Representation contained those items specified by section 20.608(b)(2), to include an explanation for his decision to withdraw representation of the Veteran, the Veteran's name and VA file number, a signed statement indicating that a copy of the motion was sent to the Veteran via U.S. mail at his current address, and proof of filing with the Board's Senior Deputy Vice Chairman at the correct address. Upon consideration of the motion, and pursuant to 38 C.F.R. § 20.608 (b)(2), the Board finds good cause for the Motion to Withdraw Representation of the claimant in his appeal before the Board.

The issue of entitlement to service connection for radiculopathy of the right lower extremity to include secondary to degenerative disc disease of the lumbar spine has been raised by the record in the Veteran's February 2013 Notice of Disagreement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017). 

The issues of entitlement to a higher initial disability rating for residuals of a left knee injury, sleep apnea, major depressive disorder, degenerative disc disease of the lumbar spine, and erectile dysfunction are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.




FINDINGS OF FACT

1. The Veteran does not have bilateral hearing loss for VA compensation purposes.

2. Throughout the appeal period, the Veteran's residual scars from knee surgery have been stable, superficial, linear, not painful, and have not been shown to cause separate functional limitation.

CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1154; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017).

2. The criteria for a compensable rating for residual scars from knee surgery have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7804 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5103, 5103A  (2012); 38 C.F.R. § 3.159 (2017). The duty to notify has been met. See VA correspondence dated August 2010. The Veteran and his representative have not alleged prejudice with regard to notice. Thus, nothing more is required.

In addition, all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service treatment records, VA treatment and examination reports and statements in support of the claim. The Board finds that there is no evidence of any additional existing pertinent records. 
When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. The medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The available medical evidence is sufficient for adequate determinations. There has been substantial compliance with all pertinent VA law and regulations, and to adjudicate these claims would not cause any prejudice to the appellant.


II. Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a).

Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366   (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a).

In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997).

In determining entitlement to service connection, the Veteran receives the benefit of the doubt so that the Veteran prevails whenever the evidence in support of the claim is at least in equipoise. 38 C.F.R. § 3.102; 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990).

In this case, sensorineural hearing loss is listed among the "chronic diseases" under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303 (b). 

Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures pure tone threshold hearing levels (in decibels) over a range of frequencies (in hertz). Hensley v. Brown, 5 Vet. App. 155, 158   (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. 

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 (Hz) is 40 decibels (dB) or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB 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 contends that his bilateral hearing loss was caused by noise exposure in service. He specifically contends that he was exposed to weapons fire, explosives, and heavy equipment noise with hearing protection which caused his hearing loss.

Service treatment records reflect normal bilateral hearing recorded at the August 2006 service entrance examination. The February 2010 separation audiogram recorded mild right ear hearing loss at 4000-6000 Hz and a normal left ear. Records also include a memorandum detailing the Veteran's hearing loss and his subsequent enrollment in a hearing conservation program.

The Veteran was afforded a VA audiological examination in November 2010. The examiner recorded pure tone thresholds for the Veteran's right and left ear, in decibels, at 500, 1000, 2000, 3000, and 4000 hertz (Hz) were as follows: 15, 15, 15, 20, and 30 (with an average of 20) for the right ear and 15, 15, 15, 25, and 30 (with an average of 21.25) for the left ear. Speech recognition scores using the Maryland CNC Test for the right ear were 100 percent and 96 percent for the left ear. The examiner diagnosed mild bilateral sensorineural hearing loss in the frequency range of 4000-6000 Hz. The examiner opined that bilateral hearing loss was at least as likely than not caused by or a result of military service; however, the Veteran had hearing within normal limits in the right ear and hearing within normal limits per VA guidelines in the left ear.

Medical treatment records record the Veteran's complaints of hearing loss but do not provide recorded pure tone threshold measurements. 

Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for bilateral hearing loss. No evidence of record demonstrates that he suffers bilateral hearing loss for VA compensation purposes.

To the extent the Veteran asserts that he does in fact have bilateral hearing loss, the objective clinical testing outweighs the lay opinion, as audiometric testing is required to determine whether there is hearing loss for VA purposes compared to a lay assertion on the matter. Jandreau v. Nicholson, 492 F 3d 1372, 1377 (Fed Cir 2007). The Board notes that it does not doubt the credibility of the Veteran's reports of being exposed to noise during service as he can attest to factual matters of which he had first-hand knowledge; however, the VA examiner's opinions are of more probative value than the Veteran's lay statements. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).

Therefore, based on the VA examination results and evidence of record, service connection for bilateral hearing loss must be denied because there is no current disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (stating that in the absence of proof of a present disability there can be no valid claim). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is no applicable. Therefore, service connection for bilateral hearing loss is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

III. Increased Disability

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 resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). The Board must consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). However, the Board has been advised to consider factors outside the specific rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002).

If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017).

A veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran essentially contends that his residual scar from knee surgery warrants a compensable rating. His residual scar from knee surgery has been rated under 38 C.F.R. § 4.118, Diagnostic Code 7804. Under Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id., Note (1). If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Id., Note (2). Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an additional rating under Diagnostic Code 7804, when applicable. Id., Note (3). 

Diagnostic Code 7805 provides rating criteria for any disabling effects of other scars (including linear scars), and other effects of scars rated under Diagnostic Codes 7800, 7801, 7802, and 7804 not considered in a rating provided under Diagnostic Codes 7800-7804 are to be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805.

During a September 2009 VA examination, the examiner noted five "Band-Aid type surgical minimal scars" noted to the knee secondary to arthroscopic repair. The examiner found the scars measured less than 1/2 inch by 1/2 inch, and he noted that they were very difficult to even visualize. The examination report notes the scars are very well healed without keloid formation, were freely motile, caused no problems, on less than 1 percent of the Veteran's body in an unexposed area, was without drainage, and was without infection or other problems noted as a result of the scars.   

Medical treatment records note a superficial scar on the Veteran's knee but do not note pain or find the scar unstable. Treatment records are silent regarding any complaints, treatment, or contentions of worsening of symptoms from the Veteran concerning his service connected scars.

The Board finds that a compensable rating is not warranted for the residual scar from knee surgery. The record shows that the scars are linear and measure no more than 1/2 inch by 1/2 inch. Therefore, Diagnostic Codes 7801 and 7802 are not applicable. A compensable evaluation under Diagnostic Codes 7804 and 7805 requires evidence demonstrating that the scar is painful or unstable or that it is productive of functional impairment. Such is not shown in this case. Rather, the VA examination report indicated that the residual knee scars were not painful or unstable. The examiner did not note the scars to be productive of functional impairment. Thus, a compensable rating under Codes 7804 or 7805 is also not warranted. As such, the evidence of record does not show symptoms warranting a compensable evaluation at any time during the appeal. 

The Board notes the most recent VA examination to determine the severity of the Veteran's scars in September 2009 and is now several years old. However, an examination of the Veteran does not become outdated after any arbitrary amount of time. The duty to get a new examination is triggered only when the available evidence indicates that the previous examination no longer reflects the current state of the Veteran's disability. 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. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); VAOPGCPREC 11-95 (1995). Here, the clinical evidence shows a substantially stable level of disability, and the Veteran has not reported an increase in severity since the September 2010 examination. Therefore, the Board finds that another contemporary examination is not required and would unnecessarily prolong an already lengthy appeal process with no benefit to the Veteran.

In sum, the September 2010 examination report reflected the examiner noted the residual scars from knee surgery were not unstable or painful, nor did they exceed 39 sq. cm (6 sq. inches) in area. Thus, the preponderance of the evidence is against a compensable rating for the residual scar from knee surgery. 38 C.F.R. §§ 4.31, 4.118, DC 7804.


ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to an initial compensable disability rating for residual scar from knee surgery is denied. 
REMAND

Although the delay of an additional remand is regrettable, adjudication of the Veteran's claims for entitlement to a higher initial disability rating for residuals of a left knee injury, sleep apnea, major depressive disorder, degenerative disc disease of the lumbar spine, and erectile dysfunction cannot occur without additional development.  

A review of the record indicates that the Veteran last received an examination for his left knee injury, erectile dysfunction, and degenerative disc disease of the lumbar spine in May 2011, and last received an examination for major depressive disorder and sleep apnea in September 2009.  Coupled with the age of the examinations, the Veteran has submitted medical information and treatment records which reflect a worsening of his symptoms since his last examinations.  Accordingly, VA's duty to assist includes providing a new medical examination when the available evidence is too old for an adequate evaluation of the current condition and the disability may have worsened.  Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993).  See also Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination).  Thus, the Board finds a remand is necessary to afford the Veteran a contemporaneous examination to determine the current severity of his disabilities.  

Accordingly, the case is REMANDED for the following action:

1. With any necessary identification of sources and authorization by the Veteran, contact the appropriate VA medical facility(ies) and obtain and associate with the claims file all outstanding records of treatment. Request that the Veteran identify any recent private treatment pertinent to his claim and provide information and authorization sufficient for VA to assist him in obtaining any pertinent medical records not yet associated with the record. 

2. Thereafter, schedule the Veteran for a VA examination or examinations to determine the nature and severity of his service connected left knee disability, sleep apnea, major depressive disorder, degenerative disc disease of the lumbar spine, and erectile dysfunction. The electronic claims file must be made accessible to the examiner(s) for review.
3. 
The examiner(s) should opine as to the current nature and extent of the Veteran's disabilities. In rendering this opinion, the examiner must address each of the following:

* For the left knee and lumbar spine, the examiner(s) must record the range of motion for pain on active motion and passive motion and in weight-bearing and nonweight-bearing, and must address the necessary findings to evaluate functional loss during flare-ups, or must clearly explain why the required testing cannot be completed or is not necessary. The examiner(s) must summarize the pertinent evidence of record and reconcile any opinions provided with the other opinions of record. An explanation must be provided if the examiner finds that X-ray studies are not required for adequate opinions. The examiner must specifically test for and discuss the Veteran's complaints of worsening of his connected left knee and lumbar spine disabilities.

* For the lumbar spine, the examiner must discuss whether the Veteran has ankylosis of the lumbar spine and, if so, whether it is favorable or unfavorable, and document the number of weeks, if any, during the past 12 months that the Veteran has had "incapacitating episodes," defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Finally, the examiner must provide an opinion indicating whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed neurological disorder found to be present is due to or a result of the Veteran's service-connected lumbar spine disability. If it is determined that he does have a neurological disability related to his lumbar spine disorder, the examiner must identify the nerve(s) involved. For each such nerve, the examiner must determine whether the disability is mild, moderate, or severe in degree.

* For major depressive disorder, erectile dysfunction, and sleep apnea, determine the severity of the Veteran's service connected disabilities, describe the Veteran's symptoms, and note the functional impairment of the Veteran's service-connected disabilities. The examiner(s) must comment on the severity of the disabilities and report all signs and symptoms necessary for evaluating the disabilities under the rating criteria as indicated by the relevant DBQ.

A complete and thorough rationale must be provided for all opinions. If the examiner cannot provide an opinion without resorting to speculation then he or she must provide a complete and thorough rationale as to why an opinion cannot be provided.

4. Then readjudicate the claims in light of this and all other additional evidence. If the claims continue to be denied or are not granted to the Veteran's satisfaction, send him a Supplemental Statement of the Case (SSOC) and give him an opportunity to respond to it before returning the file to the Board for further appellate consideration of the claim.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This case 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. §§ 5109B, 7112.




______________________________________________
Thomas H. O'Shay
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs