Citation Nr: 18146632 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-28 059 DATE: October 31, 2018 ORDER Entitlement to an initial rating higher than 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a rating higher than 10 percent for fragment wound of the right knee is denied. Entitlement to a rating higher than 50 percent for shrapnel wounds to the face and neck with disfigurement is denied. Entitlement to an initial 30 percent rating for painful scars of the right knee and face is granted subject to the laws and regulations governing the award of monetary benefits. Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for left ear hearing loss is granted. REMANDED Entitlement to service connection for tension headaches is remanded. FINDINGS OF FACT 1. The service-connected PTSD does not more nearly approximate total occupational and social impairment. 2. Throughout the entire appeal period there is painful range of motion in the right knee with flexion at most limited to 100 degrees, extension limited to zero degrees; recurrent subluxation or lateral instability, dislocated semilunar cartilage, and/or symptomatic removal of semilunar cartilage have not been demonstrated. 3. Throughout the entire appeal period, shrapnel wounds to the face and neck with disfigurement have been manifested by gross distortion of two features and by the presence of four characteristics of disfigurement. 4. Throughout the entire appeal period there were more than five painful scars of the face and right knee. 5. The evidence is in relative equipoise as to whether the Veteran’s left ear hearing loss is related to his service. 6. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, right ear hearing loss for VA purposes. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for a disability rating in excess of 10 percent for fragment wound of the right knee have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256, 5258, 5259, 5260, 5261, 5262, 5263. 3. The criteria for a disability rating in excess of 50 percent for shrapnel wounds to the face and neck with disfigurement have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. 4.7, § 4.118, Diagnostic Codes 7800. 4. The criteria for an initial disability rating of 30 percent is granted for painful scars of the right knee and face. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7804. 5. The criteria for entitlement to service connection for left ear hearing loss have been satisfied. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service, to include the period from June 1966 to July 1969. He died in September 2013. The appellant is his widow. In March 2016 the Agency of Original Jurisdiction (AOJ) determined that the appellant met the basic eligibility for substitution as the Veteran’s spouse. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(b). In a statement dated in September 2010, the Veteran stated that his legal name was being changed; the change in name is reflected in this decision. A review of the file shows that all available records have been obtained to include service treatment records, VA treatment records, and private treatment records. A Memorandum in April 2012 was issued regarding a formal finding of unavailability of treatment records at the VA Medical Center in Dallas from January 1, 1968 to September 22, 2010 under the Veteran’s most recent name. However, as indicated in the May 2016 Statement of the Case, treatment records from the VA North Texas Health Care System were obtained from June 1974 to February 2011. To the extent that there may be outstanding pertinent treatment records, the RO determined that they were unavailable. The Board finds that a diligent effort was made to acquire them and that any further efforts to locate those records would be futile. Thus. the duty to assist has been satisfied. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board notes that the issues pertaining to the scars of the right knee and face were separately characterized by the AOJ as entitlement to an initial rating higher than 10 percent for residual arthrotomy scars of the right knee and entitlement to an initial rating higher than 10 percent for painful shrapnel face scar. However, in light of the decision herein to grant the maximum 30 percent rating for five or more painful scars under Diagnostic Code 7804, scars of the right knee and face are being rated together. In January 2016 the appellant raised the issues that were denied in a March 2013 rating decision. The Board notes that in a March 2013 rating decision the Regional Office (RO) in part granted entitlement to a total disability rating based on individual unemployability (TDIU) and denied service connection for dental abscess, back condition, anteroseptal infarction, diabetes mellitus, numbness of the left side, and erectile dysfunction. In a May 2016 deferred rating decision, the RO noted that the Veteran died in September 2013, during the one year appeal period without filing a notice of disagreement, and the appellant was to be notified that she cannot file a notice of disagreement with the effect date assigned for TDIU nor with the denial of the other claims. As the appellant in statements received in October 2016 and September 2017 continued to raise these issues along with a left knee claim that was denied in a June 2012 rating decision, the Board refers these matters to the RO for appropriate action. The Veteran during the appeal period during his lifetime was afforded a VA knee examination in November 2010. To the extent that this examination may not be in full compliance with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016), the Board finds that it is not feasible to expect an examiner to be able to provide retrospective opinions to determine joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing. Further, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court emphasized that case law and VA guidelines anticipate that VA examiners will offer opinions on the severity of flare-ups based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. However, during the November 2010 VA examination the Veteran denied having flare-ups in his right knee. To the extent that he may have had flare-ups during his lifetime during the appeal period, it also would not be reasonable for an examiner to provide a retrospective opinion on this matter. Thus, the matter of whether the examination complied with Sharp is moot. In a statement in September 2017, the appellant indicated that she agreed with the ratings currently assigned for PTSD, right knee, shrapnel wounds to the face and neck with disfigurement, and painful scars of the right knee and face, however, subsequently the Veteran’s representative in briefs in October 2017 and May 2018 continued to contend that increased rating claims were on appeal. Thus, the appellant has not clearly and unambiguously limited her appeal to the ratings currently assigned for PTSD, right knee, shrapnel wounds to the face and neck with disfigurement, and painful scars of the right knee and face and they remain on appeal. See AB v. Brown, 6 Vet. App. 35 (1993) Further, in the September 2017 statement the appellant raised the matters of earlier effective dates for the grant of the initial ratings of 70 percent for PTSD, 10 percent for the right knee scar, and 10 percent for painful shrapnel face scar; as well as an earlier effective date for the 50 percent rating for shrapnel wounds to the face and neck with disfigurement. She appeared to indicate that the effective dates should be granted back to January 1974, when the Veteran was first granted VA benefits. However, earlier effective date claims must arise on appeal within one year from the rating decision granting the disputed effective date; a claimant may not file, and VA has no authority to adjudicate, a freestanding earlier effective date claim, as it would violate the rule of finality. See Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). As such, the Board interprets the increased rating claims as ones solely of entitlement to increased evaluations and will consider whether the disabilities have undergone varying and distinct levels of severity throughout the entire time period the increased rating claims have been pending. See Hart v. Mansfield, 21 Vet. App. 505 (2007). There is no free-standing claim for an earlier effective date, and, ordinarily, once an effective date has become final, a claimant’s only recourse is to have the final decision revised on the grounds of clear and unmistakable error (CUE). See Rudd 20 Vet. App. 296. However, in the instant case, as the appellant is the substitute claimant, she may not add an issue to or expand a claim. 38 C.F.R. § 3.1010(f). Neither the appellant nor her representative has raised any issues that are not discussed herein, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Rating Principles A disability rating is determined by the application of 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Hart v. Mansfield, 21 Vet. App. 505 (2007). Issue 1: Entitlement to an initial rating higher than 70 percent for PTSD. By way of history, the Regional Office (RO) in an August 2012 rating decision granted service connection for PTSD, effective September 29, 2009, the date the Veteran’s underlying claim of service connection was received, and assigned a 70 percent rating. Here, the Veteran’s PTSD has been rated under the General Rating formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Codes 9411. Under these criteria, a 70 percent rating requires occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals interfering with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish/maintain effective relationships. A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). The Board notes that with regard to the use of the phrase “such as” in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The United States Court of Appeals for the Federal Circuit emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words “such as” that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). It held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders (DSM). DSM-V is applicable in the instant case as the issue on appeal was certified to the Board in October 2017 and thus is after August 4, 2014. 80 Fed. Reg. 14308 (March 19, 2015). When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). It is the impact of the symptoms on occupational and social functioning that determines the rating. At no point during this period has the Veteran’s overall symptomatology more nearly approximated the criteria for a 100 percent rating as that rating requires evidence of total occupational and social impairment. Neither the lay nor medical evidence of record shows that the Veteran has total occupational and social impairment. He also has not demonstrated symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Instead, while the evidence shows that the Veteran had a bad relationship with his children he had a good relationship with his spouse. See December 2010 VA examination. The Veteran’s mental status examination in December 2010 shows that although he had intermittent suicidal ideation, his hygiene and grooming were good; his speech was logical and coherent; his thought processes were clear, logical, linear, coherent, and goal-directed; he denied a history of paranoia, hallucinations or delusions; his thought content was relevant and appropriate; and, he denied imminent suicidal or homicidal ideation. The examiner noted that the Veteran’s psychological insight and social judgement were fair to adequate and his ability to maintain minimal personal hygiene and perform daily activities of living was intact. His psychological insight and social judgement was fair to adequate. His memory for remote and recent event was intact. The Veteran’s was oriented to person, place, and time. The other competent evidence of record is consistent with these findings. Thus, the evidence does not more nearly approximate the criteria for total occupational and social impairment. Issue 2: Entitlement to a rating higher than 10 percent for fragment wound of the right knee. Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca 8 Vet. App. at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court has held that a higher rating can be based on “greater limitation of motion due to pain on use.” See DeLuca 8 Vet. App. at 206. Any such functional loss must be “supported by adequate pathology and evidenced by the visible behavior of the claimant.” 38 C.F.R. § 4.40. Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain indeed must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. Further, when evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca. Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). The Veteran’s service-connected fragment wound of the right knee has been rated under Diagnostic Codes 5010-5260. Diagnostic Code 5010 provides that arthritis, due to trauma, substantiated by x ray findings be rated as arthritis degenerative. Diagnostic Code 5003 provides that degenerative arthritis that is established by x ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (zero percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Codes 5260 and 5261 are used to rate limitation of flexion and of extension of the knee. Under Diagnostic Code 5260, limitation of flexion of the knee to 45 degrees warrants a 10 percent rating. Limitation of flexion of the knee to 30 degrees warrants a 20 percent rating. And limitation of flexion of the knee to 15 degrees warrants a 30 percent rating. Under Diagnostic Code 5261, limitation of extension of the knee to 5 degrees warrants a zero or noncompensable rating. Limitation of extension of the knee to 10 degrees warrants a 10 percent rating. Limitation of extension of the knee to 15 degrees warrants a 20 percent rating. Limitation of extension of the knee to 20 degrees warrants a 30 percent rating. Limitation of extension of the knee to 30 degrees warrants a 40 percent rating and limitation of extension of the knee to 45 degrees warrants a 50 percent rating. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight knee impairment, that is, recurrent subluxation or lateral instability. A 20 percent rating is assigned for a moderate degree of impairment, and a maximum rating of 30 percent is assigned for severe impairment. The terms “slight,” “moderate,” and “severe” are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just” as contemplated by the requirements of the law. 38 C.F.R. § 4.6. Under Diagnostic Code 5258, a 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5259, a 10 percent rating is warranted for removal of semilunar cartilage that is symptomatic. In VAOPGCPREC 23-97, VA’s General Counsel held that a veteran who has arthritis and instability of the knee might be rated separately under Diagnostic Codes 5003 and 5257, provided that any separate rating must be based upon additional disability. When a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 in order to obtain a separate rating for arthritis. In VAOPGCPREC 9-98, VA’s General Counsel clarified that when a veteran has a knee disability evaluated under Diagnostic Code 5257, to warrant a separate rating for arthritis based on x-ray findings, the limitation of motion need not be compensable under Diagnostic Code 5260 or Diagnostic Code 5261; rather, such limited motion must at least meet the criteria for a zero-percent rating. A separate rating for arthritis could also be based on x ray findings and painful motion under 38 C.F.R. § 4.59. The VA General Counsel also has held if the criteria for a compensable rating under Diagnostic Codes 5260 and 5261 are met, separate ratings can be assigned. VAOPGCPREC 9-2004. The Veteran’s claim for a higher rating for the right knee was received on September 29, 2010. The pertinent evidence during the appeal period shows that on VA examination in November 2010, the Veteran did not use a brace and did not having locking, flare-ups, incoordination, fatigue or lack of endurance. Flexion was 100 degrees with mild pain. Extension was zero degrees with mild pain. With repetitive motion times 3 there was no change in range of motion, coordination, fatigue, endurance or pain level. The cruciate and collaterals were intact. Lachman’s and McMurray’s test were negative. These findings are uncontroverted by the competent evidence during the appeal period. In order to warrant a rating higher than 10 percent under Diagnostic Codes 5260 and 5261 there must be the functional equivalent of flexion to 30 degrees and extension to 15 degrees. Based on the evidence of record during the current appeal period discussed above, right knee flexion at most was limited to 100 degrees and extension at most was limited to zero degrees. Thus, the evidence does not more nearly approximate a rating higher than 10 percent under Diagnostic Code 5260 and Diagnostic Code 5261 for the right knee. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although it is unclear whether the Veteran had x-ray evidence of arthritis in the right knee, it will be assumed that he did for purposes of considering whether a separate rating for instability is warranted. Nevertheless, the findings on the November 2010 examination show that the right knee was stable. Thus the Board finds that the weight of the evidence establishes that the criteria for a separate rating under Diagnostic 5257 for the right knee is not met as the objective findings do not confirm recurrent subluxation or lateral instability. Further, the evidence does not show tibia and fibula involvement, or genu recurvatum in the right knee, thus Diagnostic Codes 5262 and 5263 are thereby not applicable. There also is no evidence of ankylosis of the right knee, which is immobility and consolidation of a joint. See Dorland’s Illustrated Medical Dictionary 86 (28th ed., 1994). The Veteran demonstrated extension and flexion in the right knee on the examination record during the current appeal period. Thus, Diagnostic Code 5256 is not applicable. As the evidence during the appeal period does not show that the Veteran dislocated or had semilunar cartilage removed from the right knee Diagnostic Codes 5258 and 5259 are inapplicable in the instant case. The Board also has considered the lay statements that describe the Veteran’s right knee pain and discomfort. The Veteran during his lifetime and his spouse are certainly competent to describe observations and the Board finds their statements are credible. However, the objective medical findings by skilled professionals are more persuasive which, as discussed above do not support a higher rating or additional separate ratings for the right knee. In essence, the lay evidence, while accepted as credible, does not provide a basis for a higher evaluation or additional separate ratings. Lastly, as the Veteran is service connected for a fragment wound to his right knee during service, the Board has considered whether the rating criteria for muscle injuries to the foot and leg, to include Diagnostic Codes 5313 to 5315, covering Muscle Groups XIII to XV, are applicable. On VA examination in November 2012 for muscle injuries, while the examiner indicated that there was some loss of deep fascia tissue of the medial aspect of the right knee the examiner also determined that there was not effect on muscle substance or function. The examiner also found that Muscle Groups XIII to XV were not impaired and that there were no cardinal signs and symptoms of muscle disability. Thus, a separate rating under the criteria for rating muscle injuries pertaining to the right knee is not warranted. Issue 3: Entitlement to a rating higher than 50 percent for shrapnel wounds to the face and neck with disfigurement. The Veteran’s shrapnel wounds to the face and neck with disfigurement are rated under Diagnostic Code 7800. Diagnostic Code 7800 provides that the 8 characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118, are the following: scar is 5 or more inches (13 or more cm.) in length; scar is at least one-quarter inch (0.6 cm.) wide at the widest part; surface contour of scar is elevated or depressed on palpation; scar is adherent to underlying tissue; skin is hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.); and skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). See Note (1), Diagnostic Code 7800. Characteristics of disfigurement may be caused by one scar or by multiple scars; the characteristics required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. See Note (5), Diagnostic Code 7800. Diagnostic Code 7800 provides that a skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement, is rated 50 percent disabling. A skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or, with six or more characteristics of disfigurement, is rated 80 percent disabling. 38 C.F.R. § 4.118, DC 7800. In the instant case, the Veteran’s claim for a higher rating was received in September 2010. On VA neurological examination in December 2010, the examiner noted that the Veteran’s neck scar was in the shape of a T” with the stem measuring 4.5 inches and bottom part approximately 3 inches. The Veteran denied problems with the scar, the scar was superficial. No skin breakdown as seen. The width of the scar was 1 centimeter. There was no limitation of motion nor limitation of function. There was no inflammation, edema or keloid. The scar was not adherent to underlying tissue. The surface contour of the scar was not elevated or depressed. There was no abnormal texture, no hypo or hyperpigmentation. There was no induration or inflexibility. There was no underlying soft tissue loss. There was no gross distortion or assymetry of the neck secondary to the scar. The examiner opined that there was a well-healed scar on the neck, with no residuals. On VA examination in November 2012, for scars or other disfigurement of head, face or neck, the examiner indicated that that were 5 or more painful scars of the head, face or neck. The examiner indicated that scars inside the mouth were too numerous to measure. Scars in the upper and lower mucosa and front gum line were very painful. There were no scars that were both painful and unstable, nor that were unstable with frequent loss of covering of skin over the scar. There were no scars that were due to burns. The Veteran had the following scars: scar on left temple that was 2 x.4 centimeters. The Second scar was faded under the mustache and was 2 x 2 centimeters. The third scar was on the lower lip, midline, through the lip and was 2 x.04 centimeters. The fourth scar consisted of scarring inside the mouth with scars that were too numerous to measure and very painful and area of scarring was 2 x.4 centimeters. The fifth scar, which caused disfigurement, was a Y shaped scar in the midline of the neck. Each arm of the Y was 6 centimeters x 1 centimeter and the scar itself was 12 x 1 centimeters. The surface contour of the five scars was elevated on palpation and the scars were adherent to underlying tissue. The fifth scar had underlying soft tissue missing. There was no abnormal pigmentation or texture of the head, face or neck. The approximate total area of the head, face, and neck with abnormal texture and with missing underlying soft tissue was 22 centimeters squared. The examiner determined that there was gross distortion or asymmetry of facial features or palpable tissue loss affecting both the forehead and the lips. Neither the lay nor medical evidence shows that the Veteran’s shrapnel wounds to the face and neck were manifested by other characteristics of disfigurement, which include gross distortion or asymmetry of three or more features or paired sets of features or with the following characteristics of disfigurement: skin that was hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); skin texture that was abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.); and skin that was indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Thus, a higher rating of 80 percent under Diagnostic Code 7800 is not warranted. In the instant case, Diagnostic Codes 7801 and 7802 are inapplicable as they pertain to scars not of the head, face or neck. As for Diagnostic Code 7804 for painful or unstable scars, the Veteran is being separately rated for painful scars as discussed below. As for Diagnostic Code 7805 pertaining to disabling effects not considered under Diagnostic Codes 7800 to 7804, the Veteran is in receipt of a separate rating for cervical spondylosis and osteoarthritis associated with residuals of multiple fragment wounds, which is not in appellate status. Diagnostic Code 5235 pertaining to injury of facial muscles instructs to rate functional impairment as facial neuropathy, which is not shown during the appeal period, or as a disfiguring scar, which already has been considered. Thus, Diagnostic Code 7805 need not be considered further in evaluating the Veteran’s shrapnel wounds to the face and neck with disfigurement. Issue 4: Painful scars of the right knee and face. In the instant case, the Veteran’s claims for higher ratings were received in September 2010. As discussed above, the issues pertaining to the scars of the right knee and face were each separately characterized by the AOJ as entitlement to an initial rating higher than 10 percent for residual arthrotomy scars of the right knee and entitlement to an initial rating higher than 10 percent for painful shrapnel face scar. They were each separately in receipt of a 10 percent rating under Diagnostic Code 7804. However Diagnostic Code 7804 offers higher ratings for multiple unstable or painful scars. As discussed below, the Veteran had painful facial and right knee scars and thus it is appropriate to rate them together and grant the maximum rating available under Diagnostic Code 7804. To the extent that the Veteran is in receipt of a separate 10 percent rating for multiple fragment wound of the left lateral chest wall and a noncompensable rating for a right thigh scar under Diagnostic Code 7804, the Board will not disturb the ratings as the issues are not before the Board. Diagnostic Code 7804 pertains to unstable or painful scars. One or two scars that are unstable or painful are 10 percent disabling. Three or four scars that are unstable or painful are 20 percent disabling. Five or more scars that are unstable or painful are 30 percent disabling. This is the highest rating available under this Diagnostic Code. Note (1) to Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7804. Note (2) provides that if one or more scars are both unstable and painful, 10 percent may be added to the evaluation that is based on the total number of unstable or painful scars. On VA examination for the joints and knee in November 2010, the examiner noted that the Veteran had a 13 centimeter medial vertical scar and a 5 centimeter lateral upper tibial scar, which were both well healed. On VA scar examination in November 2012, there examiner noted that the right knee scar was painful but there were no scars that were both painful and unstable. As for the knee scarring, there was a linear scar that was a right medial scar of the kneecap, which was 13 centimeters x 1 centimeter. There also was a right linear scar that was below the knee, which was 6 centimeters x 1 centimeter. The examiner stated that the scar on the right knee was painful and the knee itself was painful with decreased range of motion. As for the facial scars, the examiner indicated that scars inside the mouth were too numerous to measure. The examiner noted that scars in the upper and lower mucosa and front gum line were very painful. The Veteran during his lifetime was competent to report his symptoms of pain because this requires only personal knowledge as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds no reason to doubt his credibility in this regard. Thus resolving all doubt, a 30 percent rating is warranted under Diagnostic Code 7804 for five or more painful scars of the knee and mouth, which were too numerous to count. As for the knee, the scars were not deep, nonlinear, and did not cover an area of 144 square inches or 929 square centimeters or greater, thus Diagnostic Codes 7801 and 7802 need not be considered. As discussed above the Veteran is in receipt of a separate rating for limitation of motion and further consideration under Diagnostic Code 7805 for evaluating disabling effects not considered under Codes 7800-7804 is not warranted. As for the facial scars, the applicability of other diagnostic codes was already discussed above in evaluating the Veteran’s shrapnel wounds to the face and neck with disfigurement. After resolving any benefit of the doubt in favor of the appellant under 38 U.S.C. § 5107(b), the Board finds that an initial 30 percent rating is warranted for painful scars of the right knee and face. Service Connection Claims Issues 5 and 6: Entitlement to service connection for left ear and right ear hearing loss. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303 (a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303 (d). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as “chronic” in 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). Sensorineural hearing loss (organic disease of the nervous system) is a “chronic disease” listed under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) apply to the Veteran’s claim for service connection for hearing loss. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; where the auditory thresholds for at least three of these frequencies are 26 decibels or greater or when the Maryland CNC speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran during his lifetime contended that left ear hearing loss began in service. See, e.g. October 2012 notice of disagreement. The statement is credible and consistent with the circumstances of his service, to include acoustic trauma, as his DD 214 shows that during service he was a rifleman and received the Combat Action Ribbon and Purple Heart. The Veteran had a diagnosis of sensorineural hearing loss as per 38 C.F.R. § 3.385. See November 2010 audiological examination that shows at 3000 Hertz 55 decibels in his left ear. The Board recognizes that on the November 2010 VA examination, the examiner rendered an unfavorable opinion regarding the etiology of the Veteran’s left ear hearing loss. However, the examiner opined that an opinion regarding the Veteran’s hearing loss would be based on speculation due to lack of an audiogram to review upon separation from service. Thus, the VA opinion is of limited probative value because the absence of a hearing loss disability in service is not in and of itself fatal to a claim for service connection for hearing loss. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). As the evidence is in relative equipoise (evidence for and against the Veteran’s claim is essentially equal), the benefit-of-the-doubt rule applies and entitlement to service connection for left ear hearing loss is granted. 38 U.S.C. § 5107(b). As for right ear hearing loss, the Board concludes that the Veteran does not have a current diagnosis of right ear hearing loss and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 C.F.R. § 3.303 (a), (d). A private audiogram not clearly dated and received in March 2011shows puretone thresholds for the right ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz were as follows: 20, 20, 10, 30, and 15. On VA audiological examination in November 2010, puretone thresholds for the right ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz were as follows: 5, 10, 15, 20, and 20. The speech recognition score, using the Maryland CNC Test, was 96 percent in the right ear. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While the appellant believes that the Veteran had a diagnosis of right ear hearing loss during his lifetime, she is not competent to provide a diagnosis in this case. The issue is medically complex, as it is based on audiometric findings and requires specialized medical education/knowledge to interpret diagnostic testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent evidence. REASONS FOR REMAND Issue 7: Entitlement to service connection for tension headaches. On VA neurological examination in December 2010, the Veteran reported that he had headaches since his shrapnel injuries during service. Although the examiner opined that the Veteran’s headaches were tension headaches and were less likely than not secondary to his injuries in service, the examiner did not provide a rationale for the opinion. Further, in the October 2012 notice of disagreement, the Veteran contended that his headaches were related to his PTSD. Therefore, an opinion should be obtained as to whether the Veteran’s headaches were due to service or secondary to a service-connected disability. The matter is REMANDED for the following action: Obtain an opinion by an appropriate clinician to determine the nature and etiology of the Veteran’s headaches during his lifetime. The examiner is asked to do the following: a.) Opine whether the Veteran’s headaches were at least as likely as not (50 percent or better probability) related to an in-service injury, event, or disease to include the fragment wounds that the Veteran sustained during service in May 1968, including to his neck, left temporal region, left chest wall, upper extremities and right knee.   b.) Opine whether the Veteran’s headaches were at least as likely as not (50 percent or better probability) (i) caused or (ii) aggravated by a service-connected disability. The examiner is hereby advised that the Veteran during his lifetime was service connected for PTSD and residuals of multiple shrapnel wounds and fragment wounds throughout his body. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Mac, Counsel