Citation Nr: 18151152 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 11-27 023 DATE: November 19, 2018 ORDERSERVICE CONNECTION FOR TINNITUS IS GRANTED. Entitlement to an initial compensable rating for service-connected gunshot wound to the right lower back area, involving Muscle Group XIX, is denied. Entitlement to an initial rating in excess of 10 percent for service-connected bilateral hearing loss is denied. FINDINGS OF FACT 1. Resolving all reasonable doubt in his favor, the Veteran has competently and credibly reported that his tinnitus had its onset during service and had been constant since that time. 2. The probative evidence of record reflects that the Veteran has had no worse than level IV hearing in the right ear and level III hearing in the left ear. 3. The Veteran’s service-connected gunshot wound to the right lower back area is shown to involve Muscle Group XIX but has not resulted in any residual scar, fascial defect, atrophy, impaired tonus, any impairment of function of the affected muscles, or metallic fragments retained in muscle tissue. There is no lay or medical evidence of the cardinal signs and symptoms of muscle disability, including loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). 2. The criteria for an initial rating in excess of 10 percent for service-connected bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.10, 4.85, Diagnostic Code 6100 (2017). 3. The criteria for an initial compensable rating for service-connected gunshot wound to the right lower back area, involving Muscle Group (MG) XIX, have not been met. 38 U.S.C. §§ 1155, 5103, 5013A, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.56, 4.73, Diagnostic Code 5319 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was on active duty in the United States Army from November 1945 to December 1946. The issues are on appeal from March 2010 and September 2011 rating decisions. The Board notes the Veteran passed away in June 2015. The appellant was the Veteran’s wife at the time of his death according to the marriage license and death certificate. When he died, the appeals for an increased rating for bilateral hearing loss and gunshot wound to the right lower back area; and a service connection claim for tinnitus, were on appeal to the Board of Veterans’ Appeals (Board). Appellant filed an application for survivor benefits within a year of his death. She is, therefore, legally entitled to step-in as a substitute appellant for his claims. See 38 U.S.C. § 5121A. The issue of compensation under the provisions of 38 U.S.C. § 1151 for additional right eye vision loss and scarring disability due to a January 25, 2010 surgery performed at the Fresno VA Medical Center was raised in a May 2015 statement and is referred to the regional office (RO) for adjudication. 1. Service connection for tinnitus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for chronic disabilities if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may also be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. The Veteran contended that he suffered from tinnitus as a result of acoustic exposure due to his military occupational specialty as a firefighter. Service treatment records are not associated with the record as they are presumed to have been destroyed in a fire at the National Personnel Records Center in 1973. As a result, there is no objective medical evidence of record that showed the Veteran complained of or sought treatment for tinnitus during service. In September 2009, the Veteran was afforded a VA examination. The examiner noted the Veteran’s report that his tinnitus had its onset about eight to nine years ago. The examiner opined that the Veteran’s tinnitus was less likely due to service, given its late onset. The examiner also noted that no hearing test was conducted while the Veteran was in service. The Board notes that, as discussed above, the Veteran’s service treatment records are presumed destroyed. In his May 2010 notice of disagreement and September 2011 substantive appeal, the Veteran clarified that the onset time period he had reported to the examiner was a misunderstanding. Rather than the onset of the tinnitus beginning eight to nine years ago, he wrote that he had suffered from tinnitus since service, but that it had worsened in the past few years. The Veteran explained that he had never sought medical treatment because he learned to deal with his tinnitus and did not know that there was medical treatment for the condition. The Board notes the negative September 2009 VA medical opinion, which was based on a misunderstanding that was later clarified by the Veteran regarding his onset date. The Board does not find the VA medical opinion provided to have more probative value than the Veteran’s statements. The examiner’s opinion rests on the finding that there was no documented in-service tinnitus and misinformation that the Veteran’s tinnitus had its onset eight to nine years prior to the September 2009 examination. The Veteran had competently and credibly stated that he began experiencing tinnitus since separation. He had competently and credibly explained that his tinnitus symptoms began since separation and they have continued since that time. In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As such, the Board finds the Veteran’s statements were probative and concludes that his tinnitus is related to service. While the Board notes the negative medical opinion in this case, due to the inherently subjective nature of tinnitus, the Veteran’s credible statements as to the onset of his symptoms are found to be at least as probative as the medical opinion, and any reasonable doubt is resolved in the Veteran’s favor. Gilbert, 1 Vet. App. at 49. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. In this case, staged ratings are not warranted for either increased rating claim because the Veteran had demonstrated a relatively stable level of symptomatology throughout the appeals for both disabilities, which were not sufficient for a higher rating at any other time during the appeal process. Fenderson, 12 Vet. App. at 126-27. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 2. Entitlement to an initial rating in excess of 10 percent for service-connected bilateral hearing loss The Veteran contended that his bilateral hearing loss had worsened. Specifically, he asserted that his hearing loss interfered with his ability to hear others, hold a conversation, or watch television. At the time of his death, he was rated at a 10 percent disability assignment under Diagnostic Code 6100 for his service-connected bilateral hearing loss. The Rating Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. 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. 38 C.F.R. § 4.86(a). When the puretone threshold is 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. That numeral will then be elevated to the next higher. 38 C.F.R. § 4.86(b). To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from “I” for essentially normal acuity, through “XI” for profound deafness. 38 C.F.R. § 4.85, Tables VI, VII. A 10 percent disability rating is warranted where hearing in the better ear is I, and hearing in the poorer ear is X to XI; or where hearing in the better ear is II, and hearing in the poorer ear is V to XI; or where hearing in the better ear is III, and hearing in the poorer ear is IV to VI. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran’s post-separation medical records do not contain any audiological information. In September 2009, the Veteran was afforded a VA examination. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 20 30 25 LEFT 20 25 20 40 35 The pure tone average in the right ear was 23 decibels and 30 decibels in the left ear. Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 76 percent in the left ear. The Veteran was diagnosed with mild bilateral sensorineural hearing loss. Such findings translate to level IV hearing in the right ear and level III hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII, Diagnostic Code 6100, this equates to a 10 percent disability rating. The Board acknowledges the Veteran’s statements regarding his hearing loss. However, the pertinent and objective evidence of hearing impairment does not approximate the criteria for a disability rating in excess of 10 percent. Lendenmann, 3 Vet. App. at 349 (noting that when VA assigns a schedular disability rating to a veteran’s hearing loss, it generally is required by law to base its decision entirely on audiometric testing results); 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. Applying the probative audiologic test results most favorable to the Veteran to the regulatory criteria, the Board finds that an increased rating in excess of 10 percent for his service-connected bilateral hearing loss is not warranted. Thus, the benefit-of-the doubt doctrine is inapplicable, and an increased rating is denied. See 38 U.S.C. § 5107(b); Gilbert, supra. 3. Entitlement to an initial compensable rating for service-connected gunshot wound to the right lower back area, involving Muscle Group XIX, The Veteran was assigned a noncompensable rating under Diagnostic Code 5319 at the time of his death. He contended that he was entitled to an increased compensable rating for his service-connected gunshot wound disability. Specifically, he expressed that his injury and symptoms had worsened since the initial rating decision, and that he fell approximately two times a month as a result of his weakened legs. As noted in the prior July 2015 Board decision, the Veteran was initially assigned a noncompensable rating for his gunshot wound disability under Diagnostic Code 5320, which evaluated muscle disabilities involving the spinal muscles characterized as MG XX. The physician who evaluated the Veteran in March 2014 noted that the Veteran’s gunshot wound involved the abdominal wall muscles, which are characterized as MG XIX. Given that there was no contradictory medical evidence of record in this regard, the Board found that the service-connected gunshot wound disability was more appropriately rated under Diagnostic Code 5319, which provided the rating criteria for MG XIX. Under Diagnostic Code 5319, a slight injury warrants a non-compensable rating; a moderate injury warrants a 10 percent rating; a moderately severe injury warrants a 30 percent rating; and a severe injury warrants a 50 percent rating. For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c) (2017). Muscle disability is considered to be slight if it manifested by a simple wound of the muscle without debridement or infection, no cardinal signs or symptoms of muscle disability, minimal scar, and no evidence of fascial defect, atrophy, impaired tonus, impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56. (2017). Muscle disability is considered to be moderate if it was caused by a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement, or prolonged infection. The history of a moderate muscle disability should include service department records or other evidence of in-service treatment for the wound as well as a record of consistent complaints of one or more of the cardinal signs and symptoms of muscle disability (loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement), particularly, lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. The objective signs of moderate disability include small or linear entrance and (if present) exit scars, indicating a short track of the missile through muscle tissue, some loss of deep fascia or muscle substance, impairment of muscle tonus and loss of power, or a lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56. (2017). Muscle disability is considered to be moderately severe if it results from a through and through or deep penetrating wound by a small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. The history of a moderately severe muscle injury should include service department records or other evidence showing hospitalization for a prolonged period for treatment of the wound, consistent complaints of the cardinal signs and symptoms of muscle disability as noted above and, if present, evidence of inability to keep up with work requirements. The objective evidence of a moderately severe muscle disability includes entrance and (if present) exit scars that indicate a track of the missile through one or more muscle groups, the loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side, and impairment of strength and endurance in comparison to the sound side. Id. Severe disability consists of through-and-through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. Furthermore, objective findings of a severe disability include the following: ragged, depressed, and adherent scars that indicate wide damage to the muscle groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles swell and harden abnormally in contraction; and tests of strength, endurance, or coordinated movements in comparison to the corresponding muscles of the uninjured side indicate severe impairment of function. Id. If present, the following are also signs of severe muscle disability: (1) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (2) adhesion of a scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where the bone is normally protected by muscle; (3) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (4) visible or measurable atrophy; (5) adaptive contraction of an opposing group of muscles; (6) atrophy of muscle groups not in the tract of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (7) induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56 (2017). As noted, the Veteran’s service treatment records are not available, and thus, there is no objective medical evidence of record which describes the nature of the initial gunshot wound or documents the treatment the Veteran received for the gunshot injury during service. Post-separation medical records do not show complaints of or treatment for gunshot wound residuals. In March 2014, the Veteran was afforded a VA examination. The Veteran reported that he had incurred a gunshot wound from a 0.22 or 0.32 bullet to the right lower back area during active duty, and that he was hospitalized and received treatment. The examiner noted that the Veteran’s wound had healed well without any residual scarring. The examiner found no known fascial defects or evidence of fascial defects associated with any muscle injuries; no cardinal signs and symptoms of muscle disability; no muscle atrophy, and that muscle injuries did not affect muscle substance or function. The Veteran reported using a walker regularly. The examiner did not indicate nor had the Veteran reported that his lower leg weakness was a result of or a residual condition of the service-connected gunshot wound to the right lower back area. Ultimately, the examiner found no abnormal physical findings; and continued the diagnosis of gunshot wound to the right lower back. It was also noted that the Veteran’s disability did not impact his ability to work or resulted in an inability to keep up with work requirements. Based on the evidence, the Board finds that the Veteran’s service-connected gunshot wound disability more nearly approximates a slight muscle disability as contemplated by Diagnostic Code 5319, and thus, warrants no more than a noncompensable disability rating. The evidence of record also did not reflect symptoms that were analogous to an impairment of MG XIX that is of moderate or worse severity. The available evidence of record showed that the in-service gunshot wound was treated and had healed well. There was no lay and medical evidence that showed the in-service gunshot wound had resulted in any fascial defect, atrophy, impaired tonus, impairment of function of the affected muscles, or metallic fragments retained in muscle tissue. In evaluating the Veteran’s residual gunshot wound, the Board finds that objective evidence did not reveal evidence of the cardinal signs and symptoms of muscle disability, including loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. In fact, in his May 2010 claim for service connection, the Veteran asserted that while he had lost some blood as a result of the in-service gunshot injury, his service-connected gunshot wound was not a severe wound. Further, as noted above, the Veteran was rated under Diagnostic Code 5320 for his service-connected gunshot wound, prior to the July 2015 Board decision. Diagnostic Code 5320 evaluates muscle disabilities involving the spinal muscles characterized as MG XX. The Board finds that a noncompensable rating would still be warranted under Diagnostic Code 5320 as there is no lay or medical evidence of any residual symptoms, condition, or functional impairment, including affecting the spinal muscles, as a result of the in-service gunshot injury. (Continued on next page) As the evidence preponderates against the claim for an initial compensable rating, the Veteran’s service-connected gunshot wound to the right lower back, the benefit-of-the doubt doctrine is inapplicable, and an increased rating is denied. See 38 U.S.C. § 5107(b); Gilbert, supra. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Lee, Associate Counsel