Citation Nr: 18147401 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 14-17 327 DATE: November 6, 2018 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to an initial compensable rating for left shoulder scars is denied. FINDINGS OF FACT 1. The Veteran does not have right ear hearing loss for VA purposes. 2. The Veteran's left shoulder scars were not manifested by complaints of pain and were not unstable. The nonlinear scars were superficial, but not deep. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for entitlement to an initial compensable rating for left shoulder scars is denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.118, Diagnostic Code (DC) 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1966 to December 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including organic diseases of the nervous system, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. See 38 C.F.R. § 3.307(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. 1112, 1113; 38 C.F.R. 3.307 (a)(3), 3.309(a). Sensorineural hearing loss are considered organic diseases of the nervous system. See Fountain v. McDonald, 27 Vet. App. 258 (2015). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). When all the evidence is assembled, the VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. See Gilbert, 1 Vet. App. at 53. 1. Entitlement to service connection for right ear hearing loss. Impaired hearing is considered a disability for VA purposes when: the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of those 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. Even though disabling hearing loss is not demonstrated at separation, a Veteran may establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 157, 159-60, 164 (1993) (also noting that the threshold for normal hearing is from 0 to 20 dB). The Veteran has claimed entitlement to service connection for right ear hearing loss, asserting that he was exposed to excessive noise and acoustic trauma during active duty service. The Veteran’s enlistment audiogram was normal. The audiogram upon entry to service did not demonstrate a hearing loss disability for VA purposes in either ear. No pure tone testing was completed at military separation. In September 2012, the Veteran underwent audiology testing at the VA. Objective findings noted that pure tone results for the right ear indicated hearing sensitivity within normal limits across the frequency range, with the exception of a mild sensorineural hearing loss at 4KHz. In March 2013, the Veteran filed his initial claim for bilateral hearing loss. In June 2013, the Veteran was afforded a VA examination for hearing loss. The audiogram documented that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 20 35 Speech recognition with the Maryland CNC word list was 94% for the right ear. The Board notes that audiometric testing results of record do not establish that the Veteran has a hearing loss disability in his right ear pursuant to 38 C.F.R. § 3.385. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. The competent evidence establishes that the Veteran does not have the disability for which service connection is sought in regard to a right ear hearing loss disability, and there can be no valid claim for service connection for right ear hearing loss disability as that disability is not shown by the evidence of record. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992). There has been no finding of right ear hearing loss for VA purposes proximate to or during the pendency of the Veteran's claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). While the Veteran believes he has a current diagnosis of right ear hearing loss, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence and service connection cannot be established. Therefore, the claim for service connection for right ear hearing loss must be denied because the first essential criterion for the grant of service connection, competent evidence of the disability for which service connection is sought, is not met. Increased Rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection, and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 2. Entitlement to an initial compensable rating for left shoulder scars. The Veteran's left shoulder scars were assigned a noncompensable rating in the November 2013 rating decision, with an effective date of March 28, 2013 for a grant of service connection under DC 7805. 38 C.F.R. §4.118. DC 7805 applies to other scars (including linear scars) and other effects of scars evaluated under DCs 7800, 7801, 7802 and 7804. Any disabling effects not considered in a rating provided under DCs 7800 through 7804 should be evaluated under an appropriate diagnostic code. Pursuant to DC 7804 for rating scars that are unstable or painful, a 10 percent rating is assigned for one or two scars that are unstable or painful, a 20 percent rating is assigned for three or more scars that are unstable or painful, and a 30 percent rating is assigned for five or more scars that are unstable or painful. Note (1) to DC 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under this DC, when applicable. 38 C.F.R. § 4.118. DC 7800 specifically applies to scars of the head, face, and neck. DC 7801 governs scars involving areas other than the head, face, or neck that are face, or neck, that are associated with underlying soft tissue damage and provides for a 10 percent evaluation when the area or areas exceed six sq. inches (39 sq. cm.). A 20 percent evaluation is assigned when the area or areas exceed 12 sq. inches (77 sq. cm.). DC 7802 applies to burn scars or scars due to other causes, not of the head, face, or neck that are not associated with underlying soft tissue damage. Under this provision, a maximum schedular evaluation of 10 percent is warranted for scars with an area or areas of 144 sq. inches (929 sq. cm.) or greater. Based on the foregoing, the Board finds that the Veteran's left shoulder scars do not warrant a compensable rating. The Veteran did not complain of pain from his left shoulder scars in his June 2013 VA examination. The scars were not found to be either painful or unstable in that examination. As such, the Board finds that the Veteran's left shoulder scars do not warrant a compensable evaluation. The Board finds the June 2013 VA examiner’s medical opinions adequate and highly probative both as to the Veteran's subjective report and the resulting objective findings. Specifically, the examiners interviewed the Veteran and conducted a physical examination. Moreover, the VA examiner had the requisite medical expertise and had sufficient facts and data on which to base her conclusions. As such, the Board accords the June 2013 VA examiner’s opinion great probative weight. The Board has also considered the statements submitted by the Veteran in support of the claim. The Board finds that the Veteran is a lay person and is competent to report observable symptoms he experiences through his senses such pain. Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. The medical findings, as provided in the examination reports, directly address the criteria under which his disability is rated. The Board finds that evidence is the most persuasive and outweighs the Veteran's statements in support of his claim. In addition, the Board has considered other potentially applicable diagnostic codes for rating the Veteran's service-connected left shoulder scars. The Board finds that a separate or higher rating for the Veteran's left shoulder scars pursuant to those DCs is not warranted. The Veteran's scars are on his left shoulder, not on his head, face, or neck, rendering the criteria of DC 7800 inapplicable. The Veteran’s June 2013 VA examination indicated that the scars were not deep, as there was no underlying tissue damage present; thus, DC 7801 is also inapplicable. There is also no reasonable argument that the Veteran's scars involved an area of at least 144 square inches, as his VA examination measured the scars. The Veteran’s four linear left shoulder scars measured .5 cm each, while his two nonlinear left shoulder scars measured 1.5 cm x 1 cm and 1 cm x 1 cm, respectively. As such, the criteria of DC 7802 do not apply. Finally, as there is also no evidence of record that the Veteran had any disabling effects from his left shoulder scars, a separate compensable rating under DC 7805 is also unwarranted. (Continued on the next page)   Accordingly, the Board finds that the preponderance of the evidence weighs against a compensable rating for the Veteran's left shoulder scars. 38 U.S.C. § 5107 (b) (2012); Gilbert. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Mahaffey, Associate Counsel