Citation Nr: 18150219 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 14-15 939 DATE: November 14, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for vertigo is denied. Entitlement to a compensable initial rating for left eye scar, residual of left orbital fracture, is denied. REMANDED Entitlement to a compensable initial rating for left eye diplopia, residual of left orbital fracture, is remanded. Entitlement to a total rating based on individual unemployability due to service connected disability is remanded. FINDINGS OF FACT 1. The Veteran did not develop hearing loss until more than a year after discharge from service and his current hearing loss is not a result of service, including the inservice orbital fracture. 2. The Veteran did not develop tinnitus until more than a year after discharge from service and his current tinnitus is not a result of service, including the inservice orbital fracture. 3. The Veteran did not develop vertigo until more than a year after discharge from service and his current vertigo is not a result of service, including the inservice orbital fracture. 4. The Veteran’s left eye scar has been manifested by a well-healed scar with no associated tenderness, ulceration, disfigurement, or limitation of function of the affected area. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for vertigo have not been met. 38 U.S.C. 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. 3.303, 3.307, 3.309 (2017). 4. The criteria for a compensable evaluation for left eye scar have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (prior to October 23, 2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to April 1971. Service Connection 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus 3. Entitlement to service connection for vertigo The Veteran asserts that he has experienced hearing loss, tinnitus and vertigo ever since he fell and injured his head during service. The question for the Board is whether the Veteran has a current hearing loss, tinnitus, or vertigo disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnoses of bilateral hearing loss, tinnitus and vertigo, and the evidence shows that the Veteran fractured his left orbital during service, the preponderance of the evidence weighs against finding that the Veteran’s diagnoses of hearing loss, tinnitus and vertigo began during service or are otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The service treatment records (STRs) show that the Veteran tripped and hit his face on the ground in October 1969. The Veteran developed diplopia. He was hospitalized, found to have a fracture of the left orbital floor and underwent surgical repair. The STRs contain no complaints of hearing loss, tinnitus, or vertigo. The December 1970 discharge examination shows that the Veteran underwent audiological testing and that he had normal hearing at that time. An August 2006 private treatment record notes that the Veteran sought treatment for occasional lightheadedness and dizziness. The Veteran denied hearing loss, tinnitus and vertigo. In September 2006 the Veteran reported having episodes of lightheadedness, dizziness and tension. He reported that one time he had paroxysmal positional vertigo, and that it disappeared on its own. The assessment was depression and acid reflux. In June 2008, the Veteran complained of vertigo and reported a history of tinnitus, hearing loss and vertigo ever since he left the Army. In August and September 2009, a private physician wrote letters opining that the Veteran’s tinnitus, hearing loss, vertigo, headaches, and history of depression were all related to the in-service head trauma with fracture of the left orbit. The Veteran first submitted a claim for service connection for hearing loss, tinnitus and vertigo in June 2008. On VA examination in February 2009, the VA physician opined that the Veteran’s vertigo and dizziness were not related to the inservice orbital fracture. The examiner noted that the Veteran reported that the symptoms of dizziness and vertigo began four to five years after the injury. He further noted that, when examined for discharge, the Veteran did not report any history of dizziness or vertigo at that time. The Veteran was provided a VA audiometric examination in May 2009. The Veteran had current hearing loss disability as defined by VA. The VA examiner noted that normal hearing thresholds were documented at separation from the military and that it was her opinion that the Veteran’s current hearing loss was not related to military noise exposure and not related ot the in-service fall in October 1969. She also was of the opinion that the Veteran’s tinnitus was not related to the Veteran’s in-service fall in October 1969 that fractured the left orbital floor. In September 2011 a VA examiner reviewed the Veteran’s STRs and stated that there was no medical evidence of a traumatic brain injury in conjunction with the fall with left orbital rim fracture in service. He opined that the Veteran did not have a traumatic brain injury during service. In December 2011, a private physician opined that the Veteran had dizziness, tinnitus, and headaches that were probably related to his traumatic brain injury. In July 2016 a VA audiologist stated that she was unable to provide an opinion regarding whether the Veteran’s hearing loss and tinnitus was related to the in-service fall resulting in left orbital fracture. On VA neurological examination in July 2016, the VA examiner opined that the Veteran’s vertigo was not secondary to or aggravated by the events or conditions of military service. She noted that the claimed symptoms of vertigo significantly post-dated military service and therefore, cannot reasonably be considered related to, or the result of, military service. She went on to note that the STRs and separation records are silent to any documentation of chronic vertigo symptoms or conditions. The Veteran’s file was reviewed by a VA physician in April 2017. He opined that the Veteran’s hearing loss was not incurred in or caused by the claimed in-service injury. He stated that the Veteran had sensorineural hearing loss and that there was no evidence of any damage to the inner ear or mastoid during the trauma which caused the orbital floor fracture. He stated that an orbital floor fracture will not do any damage to inner ear structure. He added that, as the trauma was not anywhere close to the inner ear or temporal bone, it is not likely that the hearing loss has anything to do with the orbital floor fracture. The Veteran’s records were examined by a VA neurology specialist in March 2018. The VA neurologist noted that the Veteran did not have hearing loss at the time of departure from military service, that the Veteran had a life time of noise exposure given his job history, and that the Veteran’s history was suggestive of an episodic peripheral vestibulopathy, such as Meniere’s disease. She further noted that the location of the orbital trauma does not impact on the anatomical locations for hearing and balance. She opined that the Veteran’s bilateral hearing loss and vertigo is not caused by, or aggravated by, the left orbital fracture. She further opined that the Veteran’s tinnitus is related to the veteran’s hearing loss and is not caused by, or aggravated by, the left orbital fracture. The Board finds that the Veteran is not entitled to service connection for hearing loss, tinnitus, or vertigo on a presumptive basis for certain chronic diseases that manifest within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The Veteran was not shown to have hearing loss, tinnitus or vertigo within a year of discharge from service. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d); see Hensley v. Brown, 5 Vet. App. 155, 158 (1993). While the Veteran believes his hearing loss, tinnitus and vertigo are related to an in-service injury, including the trauma that caused his left orbital fracture in service, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of the interaction between multiple organ systems in the body as well as the interpretation of audiological testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the more probative VA medical opinions outlined above. As reported above, the record contains conflicting medical opinions regarding whether the Veteran’s bilateral hearing loss, tinnitus and/or vertigo are at least as likely as not related to an in-service injury, event, or disease, including the orbital fracture injury. The Board finds that the VA medical opinions are more probative than the private medical opinions. The private medical opinions contain no supporting rationale. Unlike the private medical opinions, the VA opinions show a thorough knowledge of the Veteran’s medical history, such as the fact that the Veteran had normal hearing on audiological testing for discharge from service and that he had no complaints of hearing loss, vertigo or tinnitus during service. Some of the VA examiners also discussed the physiology of an orbital fracture as compared to that of the ear with regard to hearing loss and vertigo. Given the more detailed history and rationale of the VA medical opinions, the Board finds that they are the most probative evidence of record and that the Veteran’s bilateral hearing loss, tinnitus and vertigo disabilities are unrelated to service, including the trauma that caused the left orbital fracture. The preponderance of the most probative evidence is against the Veteran’s claims and service connection for bilateral hearing loss, tinnitus and vertigo is not warranted. Increased Rating 4. Entitlement to a compensable initial rating for left eye scar, residual of left orbital fracture. The Veteran seeks a compensable rating for a left eye scar, residual of a left orbital fracture. The July 2009 rating decision on appeal granted the Veteran service connection for left eye scar, effective from June 27, 2008. During the course of the Veteran’s appeal, on September 23, 2008, VA amended the criteria for evaluating scars. See 73 Fed. Reg. 54,708 (Sept. 23, 2008). However, the amendments specifically provide that the revised regulations are only effective for claims filed on or after October 23, 2008, unless a claimant requests consideration under the amended criteria. The revised regulations do not apply in this case. Diagnostic Code 7800 evaluates disfigurement of the head, face, or neck as follows: 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 (80 percent); 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 (50 percent); with 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, lips), or; with two or three characteristics of disfigurement (30 percent); and with one characteristic of disfigurement (10 percent). 38 C.F.R. § 4.118, Diagnostic Code 7800 (prior to October 23, 2008). The 8 characteristics of disfigurement, for the purposes of evaluation under § 4.118, are: (1) scar 5 or more inches (13 or more cm) in length; (2) scar at least one-quarter inch (.6 cm) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) skin adherent to underlying tissue; (5) skin hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm); (6) skin texture abnormal (irregular, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm); (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm); and (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm). Id. at Note (1). Moreover, a 10 percent evaluation is authorized for superficial, unstable scars. 38 C.F.R. § 4.118, Diagnostic Code 7803 (prior to October 23, 2008). A note following this diagnostic code provides that an unstable scar is one where, for any reason, there is frequent loss of covering of the skin over the scar. In addition, a 10 percent evaluation is authorized for superficial scars that are painful on examination. 38 C.F.R. § 4.118, Diagnostic Code 7804 (prior to October 23, 2008). Notes following Diagnostic Codes 7803 and 7804 provide that a superficial scar is one not associated with underlying soft tissue damage. In addition, scars may be rated on the basis of limitation of function of the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805 (prior to October 23, 2008). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. On VA scar examination in February 2009 the Veteran reported that he felt that there is a little protrusion of the left lower lid, but he did not have epiphora or excessive tearing. The Veteran had received no treatment for the scar. It was not itchy or tender and it had not been a problem cosmetically. Examination required a magnifying glass and a bright halogen light. The Veteran had a scar 4mm below the margin of the lower lid in a curvilinear fashion. It was 23mm in length and 0.5mm in width. The scar was not raised or depressed and was not shiny or atrophic. The scar blended well with the surrounding skin and was difficult to see. There was no keloid formation, edema, pain on palpation, and no disruption of paired facial structures. The scar was well-healed, depigmented, shiny, atrophic, and adherent to surrounding, but not deeper underlying structures, and there was no loss of subcutaneous tissue. The RO assigned the Veteran a noncompensable rating under Diagnostic Code 7800 for disfigurement of the face. The evidence does not reveal that the Veteran has met any of the 8 characteristics of disfigurement. Although the scar was noted to be shiny, the area covered by the scar is less than 39 sq. cm. The VA examiner was only able to see the scar under bright light and with a magnifying glass. Consequently, a compensable rating under DC 7800 is not warranted. Based upon the evidence of record, the Board finds the Veteran’s left eyelid scar has not been associated with any tenderness, ulceration, limitation of function of the affected area, or disfigurement. The Veteran has made no argument to the contrary. Accordingly, the Veteran’s left eye scar has not met the criteria for a compensable rating under any applicable criteria at any time since the grant of service connection and the claim for a compensable rating must be denied. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). REASONS FOR REMAND 1. Entitlement to a compensable initial rating for left eye diplopia, residual of left orbital fracture, is remanded. The July 2009 rating decision on appeal granted the Veteran service connection for left eye diplopia, effective from June 27, 2008. The Veteran’s diplopia claim must be remanded for a medical addendum/clarification of a February 2009 optometry examination report. The examiner noted that the Veteran had “diplopia extreme left gaze” and noted a diagnosis of “diplopia in extreme gaze.” However, the examiner also stated under a heading, Diplopia Field, that the Veteran had “30 degrees from fixation to the left” and “10 degrees inferior.” These findings appear to be contradictory with the report of diplopia only on extreme left gaze and the accompanying eye charts. The Veteran’s February 2009 optometry examination report, and accompanying eye charts, must be reviewed by an appropriate examiner to reconcile the findings of the February 2009 optometry examination report and clarify as to the severity of the Veteran’s left eye diplopia symptoms at that time. 2. Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU) is remanded. As the Veteran’s increased rating claim for left eye diplopia is being remanded for additional development, and because the Veteran’s TDIU claim may be impacted by adjudication of the increased rating claim, the Board finds that these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Thus, the Board concludes that the Veteran’s TDIU claim also must be remanded for readjudication by the agency of original jurisdiction (AOJ). The Board recognizes that the April 2016 Board remand decision did not address the TDIU appeal. This was an error. Although the Veteran did not specifically list TDIU among the issues he was appealing on his May 2011 VA Form 9, he did mark off the box indicating that he was appealing ALL the issues listed on the statement of the case. Consequently, the TDIU claim is on appeal. See Evans v. Shinseki, 25 Vet. App. 7 (2011). The matter is REMANDED for the following action: 1. Have an appropriate VA eye examiner review the Veteran’s claims file and provide a report that clarifies the severity of the Veteran’s diplopia symptoms reported on the February 2009 VA eye examination. The examiner should review the February 2009 eye charts and note the report of diplopia on extreme left gaze. Using the eye charts the examiner should provide an interpretation of the Veteran’s diplopia in degrees and location. The examiner should also explain the significance of the February 2009 report of Diplopia Field regarding 30 degrees to the left and 10 degrees inferior, if possible. 2. Then, after undertaking any additional development that is deemed warranted, readjudicate the claims. If any decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Jones, Counsel