Citation Nr: 1800224 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 14-07 024 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to a disability evaluation in excess of 10 percent for residuals of a cystic mass excision, right arm. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1972 to July 1975. This matter comes to 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 St. Petersburg, Florida. The Veteran testified before the undersigned Veterans' Law Judge at a March 2017 Travel Board hearing, and a transcript of this hearing is of record. The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The excision of the Veteran's right elbow cystic mass resulted in a single stable, linear, painful scar. 2. The Veteran has cubital tunnel syndrome of the right elbow secondary to an in-service right elbow injury and service connected cystic mass excision. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation in excess of 10 percent for residuals of a cystic mass excision, right arm, have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Codes 7800-7805 (2017). 2. The criteria for entitlement to service connection for cubital tunnel syndrome, right elbow, have been met. 38 U.S.C. §§ 101, 1110, 1112, 11131 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R., Part 4 (2017). An evaluation of the level of disability present includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2017). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2017). In deciding the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. The Veteran's service connected residuals of a cystic mass excision is currently evaluated under Diagnostic Code 7804. Pursuant to Diagnostic Code 7804, which applies to unstable or painful scars, a 10 percent rating is warranted for one or two scars that are unstable or painful; a 20 percent rating is warranted for three or four scars that are unstable or painful; and a 30 percent rating is warranted for five or more scars that are unstable or painful. 38 C.F.R.§ 4.118, Diagnostic Code 7804. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note 1. If one or more scars are both unstable and painful, VA is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. at Note 2. Additionally, scars that are evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804 when applicable. Id. at Note 3. The record reflects that the Veteran's cystic mass excision resulted in a single curvilinear scar of 0.2cm by 5.5cm located just above the olecranon process on the right upper arm. The scar is stable and superficial, with no breakdown, inflammation, edema, or keloid formation. There is no adherence to the underlying tissue. However, the Veteran has reported that it is painful. See VA Compensation & Pension Examinations dated August 13, 2010 and March 16, 2009. As the cystic mass excision did not result in three or more unstable or painful scars, a higher disability evaluation under Diagnostic Code 7804 is not warranted. Additionally, as the area of the Veteran's scar does not exceed 144 square inches (929 square centimeters), Diagnostic Codes 7801 and 7802 are not applicable. However, according to Diagnostic Code 7805, which applies to other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804, VA is to evaluate any disabling effect(s) not considered in a rating provided under such Diagnostic Codes under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2017). At his Travel Board hearing, the Veteran clarified that he is not challenging the disability evaluation assigned to the right arm scar, but rather is contending that he has a separate additional disability secondary to his in-service right elbow injury characterized by right elbow pain, numbness, and tingling. In May 2017, the Veteran submitted a statement from a private physician, Dr. R.A., who diagnosed the Veteran with right cubital tunnel syndrome, which he concluded, based on a review of the Veteran's medical records, including service treatment records, was caused by the injury to the Veteran's right elbow in service. Accordingly, the Board finds that a separate grant of service connection for right cubital tunnel syndrome is warranted. ORDER Entitlement to a disability evaluation in excess of 10 percent for a right elbow scar due to a cystic mass excision is denied. Entitlement to service connection for cubital tunnel syndrome, right elbow, is granted. REMAND The Veteran is also seeking entitlement to service connection for bilateral hearing loss. The Veteran's claim was denied because a March 2010 VA audiological evaluation found that the Veteran did not meet the criteria for a hearing loss disability under 38 C.F.R. § 3.385. The Veteran has submitted a January 2017 audiogram from ENT South, which, although in graphical form, appears to show a worsening of the Veteran's hearing since his VA examination that meets the criteria for a hearing loss disability. However, the private audiologist offered no opinion regarding the etiology of the Veteran's current condition. Accordingly, the Board finds a remand is required to address whether it is at least as likely as not the Veteran's bilateral hearing had onset in service or was caused by or related to his active military service. Accordingly, the case is REMANDED for the following action: 1. The RO should schedule the Veteran for a VA audiological examination. The examiner should note any functional impairment caused by the Veteran's disability, including a full description of the effects of his disability upon his ordinary activities, if any. For any hearing loss disability, the examiner is asked to opine whether it is at least as likely as not (fifty percent or greater) that the Veteran's hearing loss disability had onset in service or was caused by or related to the Veteran's active military service, to include in-service noise exposure. Importantly, the examiner should be mindful that in Hensley v. Brown, 5 Vet. App. 155, 157 (1993), the United States Court of Appeals for Veterans' Claims indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. The examiner is asked to address relevance of the journal article by Drs. Sharon G. Kujawa and M. Charles Liberman to the Veteran's claim. A complete rationale for these opinions should be provided. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. Additionally, the examiner is also reminded to consider the Veteran's lay statements regarding the nature and onset of his disability. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. 2. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs