Citation Nr: 18144659
Decision Date: 10/25/18	Archive Date: 10/24/18

DOCKET NO. 16-02 128
DATE:	October 25, 2018
ORDER
Service connection for right ear hearing loss is denied.
An initial compensable disability rating for left ear hearing loss is denied.
An initial disability rating in excess of 10 percent for tinnitus is denied.
An initial compensable disability rating for top of scalp scar is denied.
An effective date prior to February 12, 2014 for the grant of service connection for tinnitus is denied.
REMANDED
Entitlement to service connection for bilateral rotator cuff tendonitis and degenerative arthritis is remanded.
Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine is remanded.
Entitlement to service connection for degenerative disc disease (DDD) of the cervical spine is remanded.
Entitlement to service connection for degenerative joint disease (DJD) of the bilateral knees is remanded. 
Entitlement to service connection for residuals head injury is remanded.
Entitlement to service connection for migraine headaches is remanded.
FINDINGS OF FACT
1. A right ear hearing disability has not been present at any time during the pendency of this claim. 
2. The Veteran’s left ear hearing loss is manifested by audiometric test results corresponding to a number designation of, at most, Level VI.
3. The Veteran’s service-connected tinnitus is assigned a 10 percent rating, which is the maximum rating authorized under Diagnostic Code 6260.
4. The Veteran’s one scar on his head is not a painful scar.
5. February 12, 2014 is the date of entitlement for tinnitus.
CONCLUSIONS OF LAW
1. The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385.
2. The criteria for entitlement to an initial compensable rating for left ear hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.383, 4.85, 4.86(a), Diagnostic Code 6100.
3. There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for tinnitus. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6260.
4. The criteria for an initial compensable disability rating for disfigurement by head scar are not met. 38 U.S.C §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.118, Diagnostic Code 7800.
5. The criteria for entitlement to an effective date prior to February 12, 2014 for the grant of service connection for tinnitus have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service Connection
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge from 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 VA purposes, impaired hearing is considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 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.
VA regulations provide that certain chronic diseases, such as sensorineural hearing loss (as an organic disease of the nervous system), are presumed to have been incurred in service if manifested to a compensable degree within one year of separating from service. 38 U.S.C. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309.
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
1. Right Ear Hearing Loss
The Veteran asserts that service connection is warranted for right ear hearing loss because he was exposed to loud noises while he was in service. Additionally, the Veteran has argued that his right ear hearing is affected by his service-connected tinnitus and limits his ability to hear or understand verbal instructions. 
Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability, in the absence of a proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary’s adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).
At the outset, the Board notes that the cornerstone of any VA disability compensation claim is the presence of a currently diagnosed disability. Throughout the period of the claim, the Veteran has received outpatient treatment at VA facilities. The Board has carefully reviewed these records, but has not found evidence demonstrating that the Veteran is diagnosed with a right ear hearing disability for VA purposes.
In addition, the Board has reviewed the Veteran’s May 2015 VA hearing loss examination report.  The examination revealed audiometry results as follows:

HERTZ	1,000	2,000	3,000	4,000
RIGHT	15	15	20	20

Additionally, speech audiometry revealed speech recognition ability of 96 percent in the right ear. The examiner reported a diagnosis of sensorineural hearing loss. 
Although the VA examiner reported a diagnosis of sensorineural hearing loss, the Board notes that given the puretone threshold measurements and the speech recognition percentage, the Veteran’s right ear does not meet the VA requirements for a hearing disability.
The Board finds the preponderance of the evidence indicates the Veteran has not satisfied the clinical criteria necessary to establish a diagnosis of a right ear hearing disability at any time throughout the pendency of his claim. VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107 (b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, the Board has carefully considered the Veteran’s reports.
A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board has accepted the Veteran’s account of noise exposure as competent. However, a layperson is not considered capable of opining in regard to the diagnosis of a disability. Routen v. Brown, 10 Vet. App. 183, 187 (1997), aff’d sub nom Routen v. West, 142 F3d 1434 (Fed. Cir. 1998), cert denied, 119 S. Ct. 404 (1998). Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994). For example, a veteran is competent to state that he experiences symptoms that are commonly associated with a hearing disability, but he is not competent to diagnose himself with hearing loss. As discussed above, the medical evidence fails to show a right ear hearing disability has been present during the period of the claim for VA purposes. Therefore, the claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim.
Increased Rating
Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.
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.
In both initial rating claims and normal increased rating claims, the Board must discuss whether staged ratings are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21.
In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes.
2. Left Ear Hearing Loss
Disability ratings for hearing loss disability are derived from mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992).
The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85.
An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a).
Table VI, Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination, is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(b).
Table VIa, Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average, is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c).
Puretone threshold average as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d).
Table VII, Percentage Evaluations of Hearing Impairment, is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85 (e).
If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I. 38 C.F.R. § 4.85(f).
Provisions for evaluating exceptional patterns of hearing impairment are as follows:
(a) When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) is 55 decibels or more, 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. Each ear will be evaluated separately.
(b) When the puretone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, 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; the numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86.
 
The Veteran first underwent an audiological evaluation in May 2015. On examination, the Veteran’s left ear puretone thresholds were:
HERTZ	1,000	2,000	3,000	4,000
LEFT	60	65	70	90

The Veteran’s speech recognition measured at 86 percent in the left ear.
Applying the values above to Table VI results in a Level III Roman numeral designation for the left ear and, in accordance with 38 C.F.R. § 4.85(f), the Veteran’s non-service-connected right ear is assigned a Roman Numeral of I. Applying these values to Table VII results in a non-compensable rating for the left ear.
However, the Board notes that the puretone thresholds of the May 2015 examination meet the criteria of 38 C.F.R. § 4.86 as the Veteran’s puretone thresholds at each of the four specified frequencies is 55 decibels or more. Applying the values to Table VIA results in a Level VI Roman numeral designation for the left ear. The Veteran’s non-service-connected right ear is still assigned a Roman Numeral of I. Applying these values to Table VII also results in a non-compensable rating for the left ear.  Under these facts, 38 C.F.R. § 3.383 does the affect the outcome of this appeal.
Upon review of the file, it is evident the criteria for a compensable disability rating under Diagnostic Code 6100 have not been met. Although the audiological evaluations clearly show the Veteran has impaired hearing in his left ear, the hearing loss has not yet reached a level that would warrant a compensable rating under the rating schedule. As noted above, ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. On this basis, the Veteran is not entitled to a compensable rating as the preponderance of the evidence is against such a claim, and the benefit of the doubt doctrine does not apply. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
3. Tinnitus
At the outset, the Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims.
The Veteran was awarded service connection and a 10 percent rating for tinnitus in the June 2015 rating decision on appeal.
The originating agency denied the Veteran’s request for a higher rating because the maximum schedular rating authorized for tinnitus is 10 percent. In Smith v. Nicholson, 19 Vet. App. 63, 78 (2005), the Court held that the pre-1999 and pre-June 13, 2003, versions of Diagnostic Code 6260 required the assignment of dual ratings for bilateral tinnitus. VA appealed this decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court erred in not deferring to VA’s interpretation of its own regulations, 38 C.F.R. § 4.25 and Diagnostic Code 6260, which limit a veteran to a single 10 percent disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral.
The Veteran’s service-connected tinnitus is evaluated as 10 percent disabling, which is the maximum schedular rating available for such disability. See 38 C.F.R. §4.87, Diagnostic Code 6260. As there is no legal basis upon which to award a separate schedular evaluation for tinnitus in each ear or a higher schedular rating for tinnitus, the Veteran’s claim for such a benefit is without legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994).
4. Scar
The Veteran contends that he is entitled to a compensable disability rating for his scalp scar.
The Veteran’s facial scar has been evaluated under Diagnostic Code 7800, which governs scar(s), of the head, face, or neck. Under Diagnostic Code 7800 a 10 percent rating is warranted for scars that are located on the head, face, or neck when there is one characteristic of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800. A 30 percent rating is warranted when there are visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, or lips), or; with two or three characteristics of disfigurement. Id.
For purposes of evaluation of under 38 C.F.R. § 4.118, the eight characteristics of disfigurement are: a scar that is five or more inches, or thirteen centimeters, in length; a scar that is at least one-quarter of an inch, or 0.6 centimeters, wide at the widest part; surface contour of the scar that is elevated or depressed on palpation; a scar that is adherent to underlying tissue; skin that is hypo- or hyper-pigmented in an area exceeding six square inches, or 39 square centimeters; skin texture that is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches, or 39 square centimeters; underlying soft tissue that is missing in an area exceeding six square inches, or 39 square centimeters; and skin that is indurated and inflexible in an area exceeding six square inches, or 39 square centimeters. 38 C.F.R. § 4.118, Diagnostic Code 7800, Note 1. VA is to consider unretouched color photographs when evaluating under these criteria. Id. at Note 3.
Additionally, VA is to separately evaluate disabling effects other than disfigurement that are associated with individual scars of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, under the appropriate diagnostic code(s) and apply 38 C.F.R. § 4.25 to combine the evaluation(s) with the evaluation assigned under Diagnostic Code 7800. Id. at Note 4. Finally, the characteristics of disfigurement may be caused by one scar or by multiple scars; the characteristics that are required to assign a particular evaluation need not be caused by a single scar to assign that evaluation. Id. at Note 5.
The Veteran was afforded a VA scars examination in May 2015. The Veteran reported an injury in service when he was struck in the head. He required sutures to scalp.  Upon examination, the examiner noted a stable, nontender scar at top of scalp, slightly to left of midline. The hair needed to be parted to find the scar.  The scar was very faint and not disfiguring. The length and width measuring 3.5 x 0.2 cm. No elevation, depression, adherence to underlying tissue, or missing underlying soft tissue was reported. Additionally, no abnormal pigmentation or texture of the head, face, or neck was reported. The examiner noted that the scar caused no limitation of function.
The Veteran was also afforded a VA traumatic brain injury (TBI) examination in May 2015. The Veteran denied problems with the laceration/scar on the top of his head. 
Based on a review of the evidence the Board finds that the evidence of record is against the Veteran’s claim for a compensable disability rating for one 3.5 x 0.2 cm scalp scar. During the appeal period, the Veteran has not reported any functional impairment or any disabling effects of the facial scar. A compensable disability rating is, therefore, not warranted.
The Board has considered that diagnostic codes governing scars provide potential compensable disability ratings. 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2017). However, the evidence of record does not show scars other than the head, face, or neck that are deep or cause limited motion in an area exceeding 6 square inches or 39 sq. cm., but less than 12 sq. inches (77 sq. cm.) (Diagnostic Code 7801); scars other than the head, face, or neck that are superficial, do not cause limited motion, and in an area exceeding 144 square inches or 929 cm. or greater (Diagnostic Code 7802); superficial unstable scars with frequent loss of skin covering over the scar (Diagnostic Code 7803); unstable or painful scars (Diagnostic Code 7804); or scars that causes some sort of compensable limitation of function (Diagnostic Code 7805).
Accordingly, the Board finds that a compensable disability rating is not warranted under Diagnostic Code 7800, during the period of the appeal. The Veteran’s one scalp scar has not met the criteria for a higher rating for disfigurement at any time since the effective date of his award.
For the reasons stated above, the preponderance of the evidence is against the assignment of a compensable rating for the Veteran’s scalp scar. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).
Effective Date
5. Earlier Effective Date for the Grant of Service Connection for Tinnitus
The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection or a claim reopened after final adjudication, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110(a).
The Veteran has asserted that an earlier effective date is warranted, noting the impact of the disability upon his life.
The implementing regulation clarifies this to mean that the effective date of an award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400, 3.400(b).
The current effective date for the grant of service connection for tinnitus is February 12, 2014. The Board must determine whether an earlier effective date is warranted by finding the date of claim and the date entitlement arose.
VA received the Veteran’s informal claim of service connection for hearing loss on December 5, 2014. There are no communications prior to that date that could be interpreted as an informal claim. As such, the date of claim for tinnitus is also December 5, 2014.
As for the date of entitlement arose, the Veteran underwent an audiological examination in May 2015, in which the examiner opined the Veteran’s bilateral tinnitus noted on examination was related to military service. This is the first time the Veteran met all three elements of his service connection claim and, as such, is the date of entitlement. However, the RO granted service connection for tinnitus, effective February 12, 2014, in its June 2015 rating decision. As this is a favorable finding for the Veteran, the Board will not disturb it.
Given the foregoing, the preponderance of the evidence is against an effective date prior to February 12, 2014 for the grant of service connection for tinnitus. The Board has considered the benefit of the doubt doctrine but finds it is inapplicable.
REASONS FOR REMAND
The Veteran asserts service connection is warranted for residuals of a head injury, migraines, DDD of the lumbar spine, DDD of the cervical spine, and DJD of the knee is warranted due to an in-service injury. In an August 2000 VA progress note, the Veteran reported he has had private treatment from the New Hanover County Hospital for his claims. The Veteran submitted an authorization to obtain private medical records in November 2015; however, it does not seem any records have been requested. Additionally, in a July 2002 VA progress note, the Veteran reported he was seen by a private physician for a worker’s compensation back problem and an MRI of the lumbar spine was done in May at the Stonewall Jackson Memorial Hospital. It does not seem those records have ever been requested. A remand is required to allow VA to obtain authorization and request these records.
The matters are REMANDED for the following action:
Ask the Veteran to complete a VA Form 21-4142 for New Hanover County Hospital, Stonewall Jackson Memorial Hospital, and any other private treatment provider which has provided treatment for the claims on appeal.  Make two requests for the authorized records from any identified providers, unless it is clear after the first request that a second request would be futile. 

 
Nathaniel J. Doan
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Diane M. Donahue Boushehri, Counsel