Citation Nr: 18156418 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 16-58 674 DATE: December 11, 2018 ORDER A compensable rating for bilateral hearing loss is denied. A compensable rating for right hand scar is denied. A rating higher than 30 percent for nonspecific skin lesions is denied. REMANDED The petition to reopen the claim for service connection for acid reflux is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with mixed anxiety and depressed mood, is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to a disability rating higher than 10 percent for lumbar spine degenerative disc disease and degenerative joint disease is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss has been manifested by no worse than Level I hearing impairment in both ears. 2. The Veteran’s right hand scar is not painful, unstable, or deep. 3. The Veteran’s nonspecific skin lesions are not manifested on more than 40 percent of the entire body or of exposed areas affected, and do not require constant or near-constant systemic therapy. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100 (2017). 2. The criteria for a compensable rating for a right hand scar have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7805 (2017). 3. The criteria for a disability rating higher than 30 percent for the Veteran’s nonspecific skin lesions have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Codes 7899-7806 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1987 to January 1995, and from January 2004 to February 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2018). The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2017). Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence supports a given evaluation under the applicable rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When the evidence supports the claim, or is in relative equipoise, the claim will be granted. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If the preponderance of the evidence weighs against the claim, it must be denied. Id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Hearing Loss The Veteran’s bilateral hearing loss has been assigned a 0 percent (noncompensable) rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. Evaluations of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 Hertz (Hz). To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Where impaired hearing is service connected in only one ear, the non-service connected ear will be assigned a Roman numeral I for rating purposes. 38 C.F.R. § 4.85, Diagnostic Code 6100. Under 38 C.F.R. § 4.86, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels (dB) or more, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. Further, when the average puretone threshold is 30 dB or less at 1000 Hertz, and 70 dB or more at 2000 Hz, the rating specialist will determine the Level 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 level. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b) (2017). On the authorized audiological evaluation in April 2015 pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 60 55 50 53 LEFT 30 35 35 35 34 Speech audiometry revealed speech recognition scores of 100 percent in both ears. The results show that the Veteran does not have exceptional pattern of hearing loss in either ear as contemplated in 38 C.F.R. § 4.86. Application of 38 C.F.R. § 4.85 Table VI to the April 2015 measurements result in assignment of Roman Numeral I in both ears. A noncompensable rating is derived from the application of Table VII of 38 C.F.R. § 4.85. In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak, 21 Vet. App. at 455. In the April 2015 VA examination report, the examiner noted that the Veteran stated he had difficulties “hearing and understanding conversation.” The functional effects of decreased hearing and difficulty understanding speech are what the audiometric tests are designed to measure. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). Thus, “when a claimant’s hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria.” Id. The evidence does not show that the Veteran’s hearing loss is different from, or more severe than, what is contemplated by the rating criteria under DC 6100. See id. Accordingly, referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b) (2017); King v. Shulkin, 29 Vet. App. 174, 178-79 (2017). In sum, the preponderance of the evidence weighs against a rating higher than 0 percent for the Veteran’s bilateral hearing loss, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an increased rating for right hand scar The Veteran’s right hand scar is rated as noncompensable under 38 C.F.R. § 4.118, Diagnostic Code 7805. Diagnostic Code 7805 applies to other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802 and 7804. Any disabling effects not considered in a rating provided under Diagnostic Codes 7800 through 7804 should be evaluated under an appropriate diagnostic code. Pursuant to Diagnostic Code 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 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. 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 Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this Diagnostic Code, when applicable. 38 C.F.R. § 4.118. Diagnostic Code 7800 specifically applies to scars of the head, face, and neck. Diagnostic Code 7801 governs scars involving areas other than the head, face, or neck that are deep and nonlinear 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.). Note 1 provides that a deep scar is one associated with underlying soft tissue damage. Diagnostic Code 7802 applies to burn scars or scars due to other causes, not of the head, face, or neck that are superficial and nonlinear. 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. Note 1 provides that a superficial scar is one not associated with underlying soft tissue damage. Diagnostic Code 7805 applies to other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802 and 7804. Any disabling effects not considered in a rating provided under Diagnostic Codes 7800 through 7804 should be evaluated under an appropriate diagnostic code. In an April 2015 VA examination, the examiner found that the Veteran had a linear scar on his right hand measuring 7.5 cm in length. There was no objective evidence that the scar was painful or unstable. Additionally, the examiner found that the Veteran’s scar did not result in functional or occupational impairment. Post-service treatment records do not note any symptomatology associated with the Veteran’s right hand scar. Based on the foregoing, the Board finds that the Veteran’s right hand scar does not warrant a compensable rating. The April 2015 VA examination found that the Veteran’s right hand scar was not painful, unstable, or nonlinear. The examination also shows that the Veteran’s right hand scar did not result in functional or occupational impairment. Furthermore, post-service treatment records do not indicate any symptomatology, to include pain, associated with the Veteran’s right hand scar. Accordingly, the criteria for a compensable rating have not been satisfied or more nearly approximated under the diagnostic codes pertaining to scarring, or another diagnostic code pertaining to disabling effects caused by scarring. See 38 C.F.R. § 4.118. Accordingly, the Board finds that the preponderance of the evidence weighs against a compensable rating for the Veteran’s right hand scar. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Nonspecific Skin Lesions The Veteran’s nonspecific skin lesions is rated as 30 percent disabling under 38 C.F.R. § 4.118, Diagnostic Codes 7899-7806. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. Regulations provide that when a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Because the Veteran’s specific diagnosis was not listed in the Rating Schedule, Diagnostic Code 7899 was assigned pursuant to 38 C.F.R. § 4.27, which provides that unlisted disabilities requiring rating by analogy will be coded first by the numbers of the most closely related body part and “99.” See 38 C.F.R. § 4.20. Here, the most closely analogous diagnostic code was Diagnostic Code 7806, for dermatitis or eczema. Under Diagnostic Code 7806, a noncompensable rating is warranted when less than 5 percent of the entire body or less than 5 percent of exposed area is affected, and no more than topical therapy is required during the past 12-month period. A 10 percent rating requires that at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas be affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than 6 weeks during the past 12-month period. A 30 percent rating requires that 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas be affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of 6 weeks or more, but not constantly, during the past 12-month period. A 60 percent rating requires more than 40 percent of the entire body, or more than 40 percent of exposed areas be affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017). The provisions of Diagnostic Code 7806 also provide for a rating of disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. Diagnostic Code 7801 governs scars involving areas other than the head, face, or neck that are deep and nonlinear. Diagnostic Code 7802 applies to burn scars or scars due to other causes, not of the head, face, or neck that are superficial and nonlinear. 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. Note 1 provides that a superficial scar is one not associated with underlying soft tissue damage. Diagnostic Code 7804 applies to scars that are unstable or painful. Diagnostic Code 7805 applies to other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802 and 7804. Any disabling effects not considered in a rating provided under Diagnostic Codes 7800 through 7804 should be evaluated under an appropriate diagnostic code. The schedule for rating disabilities applicable to the skin was recently amended effective August 13, 2018. 83 Fed. Reg. 32593 (July 13, 2018). Claims pending prior to the effective date of the new rating criteria will be considered under both the old and new criteria, and whatever criteria is more favorable to the Veteran will be applied. Effective August 13, 2018, DC 7806 is to be evaluated under the General Rating Formula for the Skin. 83 Fed. Reg. 32593; 38 C.F.R. § 4.118. The General Rating Formula for the Skin assigns a 60 percent rating when characteristic lesions affect more than 40 percent of the entire body or exposed areas; or when constant or near-constant systemic therapy is required including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period (hereinafter “systemic therapy.”) A 30 percent rating is assigned when characteristic lesions affect more than 20 to 40 percent of the entire body or exposed areas; or when systemic therapy is required for a total duration of 6 weeks or more but not constantly over the past 12-month period. A 10 percent rating is assigned when characteristic lesions affect at least 5 percent but less than 20 percent of the entire body or exposed areas, or when intermittent systemic therapy is required for a total duration of less than 6 weeks over the past 12-month period. A noncompensable evaluation is assigned when no more than topical therapy is required over the prior 12-month period and the characteristic lesions affect less than 5 percent of the total body or exposed areas. Or, the disorder may be rated according to DCs 7800 to 7805 depending on the predominant disability. In an April 2015 VA examination, the examiner found no current skin lesions or prescribed medication for nonspecific skin lesions. The Veteran reported that he sometimes had a skin rash on his left elbow or on his chest, but the examiner found no current rashes. The examiner also found that the Veteran’s nonspecific skin lesions did not result in scarring or disfigurement of the head, face, or neck, or any systemic manifestations. No functional limitations due to nonspecific skin lesions were noted. The Veteran had not been treated with oral or topical medications in the past 12 months. Post-service treatment records do not note any symptomatology associated with the Veteran’s nonspecific skin lesions. Based on the foregoing, the Board finds that the Veteran’s nonspecific skin lesions does not warrant a disability rating higher than 30 percent under the former rating criteria or the current General Rating Formula for the Skin. The April 2015 VA examination found that the Veteran did not currently have any skin lesions or rashes. The examination also shows that the Veteran’s nonspecific skin lesions did not result in functional impairment. The competent evidence of record does not show that the Veteran’s nonspecific skin lesions required any systemic therapy, such as corticosteroids or other immunosuppressive drugs, or, for that matter, that it has been treated with any oral or topical medication during the period under review. Post-service treatment records do not indicate any symptomatology associated with the Veteran’s nonspecific skin lesions. The Board has also considered whether the Veteran’s nonspecific skin lesions warranted an evaluation under any other potentially applicable diagnostic codes, including scarring under DC’s 7800 through 7805. The record does not indicate that the Veteran’s nonspecific skin lesions cause scarring or disfigurement. Thus, Diagnostic Codes 7800 through 7805 are not applicable. See 38 C.F.R. § 4.118. Accordingly, the Board finds that the preponderance of the evidence weighs against a disability rating higher than 30 percent for nonspecific skin lesions. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Petition to Reopen Claim for Acid Reflux, and Service Connection Claims for Psychiatric Disorder and Sleep Apnea The Veteran’s service treatment records for his second period of service, from January 2004 to February 2005, have not been obtained. According to the October 2013 formal finding of unavailability, a request for these records was submitted to the Records Management Center (RMC) on June 2013, and a negative response was received that same month. However, documentation of the request to the RMC and its response is not in the file. The RO also requested the Veteran’s service treatment records directly from his National Guard unit, which also responded in the negative. As the Veteran was on active duty for that period, the Board finds that another request to the RMC is warranted, with documentation for the file. Further, a request should be made to the National Personnel Records Center (NPRC) via the Personnel Information Exchange System (PIES) for these records. Further, the Veteran has submitted private examination reports and opinions dated in November 2016, which have not been reviewed by the agency of original jurisdiction (AOJ). This evidence was received by the RO prior to certification of the appeal and transfer of the record to the Board. On remand, the AOJ must consider this evidence in readjudicating the claims for a psychiatric disorder and sleep apnea. See 38 C.F.R. § 19.37 (2017). Increased Rating for Lumbar Spine Degenerative Disc Disease In July 2016, the United States Court of Appeals for Veterans Claims (“Court”) held that 38 C.F.R. § 4.59 (2017), read together with 38 C.F.R. §§ 4.40 and 4.45 (2016), “creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities.” Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The Court determined that range of motion testing in the areas listed in 38 C.F.R. § 4.59 - active motion, passive motion, weight-bearing, and non-weight-bearing - is required “in every case in which those tests can be conducted.” Id. at n.7. The April 2015 VA examination does not clarify whether range of motion testing was conducted in the aforementioned areas, including passive and weight-bearing motion, or whether such testing is warranted. The lumbar spine is a weight-bearing joint. As such, a new examination is required. The matter is REMANDED for the following action: 1. Add to the file any outstanding VA treatment records for the Veteran dated since April 2015. 2. Submit requests to the RMC, and to the NPRC via PIES, for the Veteran’s service treatment records for his period of active service from January 2004 to February 2005. The requests and responses received must be documented for the file. 3. In readjudicating the claims for service connection for a psychiatric disorder and sleep apnea, consider the private November 2016 examination reports and opinions by Dr. Henderson-Galligan and Dr. Blevins, along with the treatise evidence. 4. Arrange for a VA examination to assess the severity of the Veteran’s lumbar spine degenerative disc disease, to include all orthopedic and neurological manifestations. It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. Further, in accord with the requirements of 38 C.F.R. § 4.59, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight- bearing and, if possible, with the range of the opposite undamaged joint; or an explanation from the examiner that any such testing cannot or should not be conducted. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his cervical and lumbar spine symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. A full and complete explanatory rationale must be provided for any opinion offered. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran’s range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. J. Rutkin Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Ko, Associate Counsel