Citation Nr: 18145895 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-36 692 DATE: October 30, 2018 ORDER 1. Entitlement to a compensable rating for an abdominal appendectomy scar is denied. REMANDED 2. Entitlement to service connection for right ear hearing loss is remanded. FINDING OF FACT The Veteran’s abdominal appendectomy scar is linear, and is not shown to be painful or unstable, or to cause any functional impairment. CONCLUSION OF LAW A compensable rating for abdominal appendectomy scar is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.31, 4.118, Diagnostic Codes (Codes) 7804, 7805. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from July 2001 to July 2004. These matters are before the Board of Veterans’ Appeals (Board) on appeal of an October 2015 Department of Veterans Affairs (VA) rating decision, which granted service connection for an abdominal appendectomy scar, rated 0 percent. Entitlement to a compensable rating for an abdominal appendectomy scar is denied. 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; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be assigned, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Scars are evaluated under 38 C.F.R. § 4.118, Codes 7800 through 7805. Code 7800 applies to scars of the head, neck, face, and neck (and therefore does not apply in this case). Codes 7801 and 7802 apply to scars that are nonlinear (superficial or deep). As the scar in the instant case is linear, Codes 7801 and 7802 likewise do not apply (as the area of involvement requirement could not be met). Under Code 7804, a 10 percent rating is warranted when one or two scars are unstable or painful. Higher ratings require that there be more than 2 scars (or that a scar is both painful and unstable). Under Code 7805, scars are rated under an appropriate Code for any disabling effects not considered in a rating under Codes 7800 to 7804. When the rating schedule does not provide a 0 percent evaluation for a diagnostic code, a 0 percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. When the appeal is from the initial rating assigned with an award of service connection, the severity of the disability at issue during the entire period from the initial assignment of the disability to the present is to be considered, and “staged” ratings may be assigned based on facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). On September 2015 VA scars examination, the Veteran was noted to have undergone an appendectomy that resulted in a surgical scar. The scar was described as linear, nontender, 8.5 centimeters long, not unstable, not painful, and did not result in any limitation of function. The record does not include any further clinical evidence pertaining to the status of the Veteran’s appendectomy scar. He has not identified any relevant evidence pertaining to the scar that is outstanding. Considering the criteria under Code 7804, the disability at issue here consists of a single linear scar. While the Veteran indicated on his July 2016 VA Form 9 that he sometimes felt pain at the location of the appendectomy scar, there has not been clinical confirmation that his appendectomy scar is painful, and there is no evidence (or allegation) that it is unstable. The September 2015 VA examiner specifically found that the scar was not painful and nontender. The examiner noted that the Veteran’s treatment records were reviewed, and were found to be silent for any appendectomy scar issues. The criteria for a 10 percent rating under Code 7804 are not met. As the VA examiner also found that the scar does not result in any functional impairment (and the Veteran has not alleged any impairment of function due to his scar that would be compensable), a compensable rating under Code 7805 is likewise not warranted. See 38 C.F.R. § 4.31. The preponderance of the evidence is against this claim. Therefore, the appeal in this matter must be denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND Entitlement to service connection for right ear hearing loss is remanded. The Veteran contends his right ear hearing loss is due to exposure to noise in service, including from firing weapons on a firing range without adequate hearing protection. His military occupation specialty (MOS) was in Supply. His service treatment records include a January 2002 hearing conservation audiogram (to establish hearing acuity prior to duties in hazardous noise areas); it was noted that he was routinely exposed to noise, and that hearing protection was issued. On September 2015 VA audiological evaluation, audiometry confirmed that the Veteran has a right (but not left) hearing loss disability. The examiner opined that the etiology of the Veteran’s right ear hearing loss is not at least likely as not related to his military service. The examiner explained there was no mention of hearing loss until 2015, no evidence of in-service acoustic trauma, and that the Veteran’s MOS was “rated low for the probability of noise exposure.” Under governing caselaw, the absence of hearing loss in service is not fatal to a claim of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Furthermore, a servicemember’s MOS does not necessarily dictate the nature and extent of noise exposure he or she experienced during service. The provider did not consider the Veteran’s reported history of exposure to noise in service (which is supported by his participation in a hearing conservation program during service), and did not identify an alternative likely etiology for the right ear hearing loss. The opinion is inadequate for rating purposes; an examination to obtain a fully adequate opinion is necessary. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matter is REMANDED for the following: Arrange for the Veteran’s record to be forwarded to an audiologist or otologist for review and an advisory medical opinion regarding the likely etiology for the Veteran’s right ear hearing loss disability. [If further examination of the Veteran is deemed necessary for an opinion sought, such should be arranged.] The consulting provider should note that based on the Veteran’s reports (and evidence of his participation in a hearing conservation program in service), it may reasonably be conceded that he was exposed to some level of hazardous noise in service. The provider should: (a.) Identify the likely etiology for the Veteran’s right ear hearing loss disability. Specifically, is it at least likely as not (a 50% or better probability) that it is related to his service (to include as due to exposure to noise therein)? If the Veteran’s hearing loss is determined to be unrelated to service, the provider should identify the etiology considered more likely (and explain why that is so). All opinions must rationale. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Naumovich, Law Clerk