Citation Nr: 18156769 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 16-58 429A DATE: December 10, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to a compensable initial raring for superficial and nonlinear right lower extremity scar is denied. Entitlement to an initial rating higher than 10 percent for painful right lower extremity scar is denied. REMANDED Whether new and material evidence has been received to reopen a previously denied claim for service connection for a right knee injury is remanded. Entitlement to service connection for residuals of shrapnel wound of the right leg is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss is at least as likely as not related to his in-service acoustic trauma. 2. The Veteran’s tinnitus is related to his in-service acoustic trauma from combat-related arms fire. 3. The Veteran’s scar of the right lower extremity is superficial and non-linear, and measures one centimeters (cms) squared. 4. The Veteran has one scar in the right lower extremity that is painful but not unstable. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.385. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 3. The criteria for an initial rating higher than 10 percent for a scar of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7804. 4. The criteria for an initial compensable rating for a superficial non-linear scar of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.118, DC 7802. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1968 to July 1970, including service in Vietnam for which he received the Combat Infantryman Badge and Purple Heart with one Oak Leaf Cluster. These matters come before the Board of Veterans’ Appeals (Board) on appeal from May 2015 and April 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed his claims for increased ratings. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system such as sensorineural hearing loss and tinnitus, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1); 38 C.F.R. §§ 3.307(a), 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015) (including tinnitus within the category of organic diseases of the nervous system for which presumptive service connection is provided under 38 C.F.R. § 3.309(a)). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 38 U.S.C. § 1154(b) provides special rules for combat veterans discussed below. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that his bilateral hearing loss is due to his in-service exposure to acoustic trauma. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. The Veteran has met the current disability requirement, as shown by the post-service audiometric scores below. In addition, the Veteran received the Combat Infantryman Badge and the Purple Heart, which are indicative of combat. The finding that the Veteran engaged in combat is significant because it allows a combat veteran to use “satisfactory lay or other evidence” to establish that he was injured or incurred a disability while on active duty, even in cases where “there is no official record” that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C. § 1154(b)). The Board therefore accepts the Veteran’s testimony that he suffered acoustic trauma in service from combat-related arms fire. Moreover, the fact that the claimed cause of the Veteran’s hearing loss is therefore established by his testimony does not prevent him from also invoking the section 1154(b) rules in order to show that he incurred the disability itself while in service. Reeves, 682 F.3d at 999. Here, service treatment records (STRs) reflect an April 1968 pre-induction audiometric testing reflects pure tone thresholds as follows: HERTZ 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 5 0 5 N/A 10 LEFT 0 0 5 N/A 10 A June 1970 separation report of medical examination indicated pure tone thresholds as follows: HERTZ 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 0 0 0 N/A 0 LEFT 0 0 0 N/A 5 A May 2015 VA audiological examination reflects pure tone audiometry test results were as follows: HERTZ 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 25 25 25 25 50 LEFT 20 2 25 40 50 The results of the speech discrimination score (Maryland CNC word list) were 96 percent in each ear. The VA examiner opined that the Veteran’s bilateral hearing loss was less likely than not incurred in service because the Veteran’s in-service audiograms did not indicate a significant change or decrease in hearing. The examiner noted that the Veteran’s military occupational specialty (MOS) was listed as infantryman, which was considered at a high probability for noise exposure. She noted that the Institute of Medicine found that “there was insufficient scientific basis to conclude that permanent hearing loss or tinnitus directly attributable to noise exposure will develop long after noise exposure.” Based on the audiograms, the examiner concluded there was no evidence on which to establish a nexus that the Veteran’s current hearing loss was caused by or a result of military service, including noise exposure. She explained that damage to the hearing system is a real-time event and thresholds would demonstrate significant changes if damage were present. As such, any theories that pertained to progressive hearing loss being caused by “histopathologic changes in the outer hair cells was not based on scientific fact and would be completely mere speculation on the examiner’s part.” In addition, a comparison of threshold shift findings showed no significant shift in hearing sensitivity at any of the test frequencies for either ear, and therefore the Court of Appeals for Veterans Claim’s (Court) decision in Hensley v. Brown, 5 Vet. App. 155, 160 (1993), had been considered and would not apply to this case. The Board finds that the May 2015 VA examiner’s opinion is flawed because she relied on the lack of hearing loss diagnosis during service to reach her conclusion. While the examiner stated that Hensley had been considered and was not applicable to this case, the Board notes that this is a legal finding not within the purview of the VA examiner. 38 C.F.R. § 3.100(a) (2018) (delegating the Secretary’s authority “to make findings and decisions... as to the entitlement of claimants to benefits” to, inter alia, VA “adjudicative personnel”). The Court in Hensley indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran’s service and his current disability. The Court’s holding in Hensley is consistent with 38 C.F.R. § 3.303 (d), which provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See id. Thus, the Board finds that the reliance on the absence of hearing loss in service lessens the probative weight of the medical opinion. Given the fact that the Veteran has competently and credibly stated that he experienced hearing loss since acoustic trauma from combat-related arms fire, the combat rules as interpreted in Reeves, and the other evidence of record, the evidence is thus at least evenly balanced as to whether the Veteran’s bilateral hearing loss is related to acoustic trauma from combat-related arms fire. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a bilateral hearing loss disability is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Buchanan, 451 F.3d at 1335 (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). 2. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus is due to his in-service exposure to acoustic trauma. The Veteran has a current diagnosis of tinnitus and, as stated above, exposure to in-service acoustic trauma from combat-related arms fire is conceded. The Veteran reported that he had ringing in his ears since a blast in 1968 during service. As stated above, the May 2015 VA examiner noted that while the Veteran’s MOS as an infantryman was considered at a high probability for noise exposure, it was less likely than not that tinnitus was related to service because there were no records of complaint or treatment for tinnitus in the Veteran’s service records. Further, the examiner found that “there was clear and unmistakable evidence that [hearing] thresholds were unchanged during service.” At the outset, the Board finds that the evidence demonstrates that the Veteran has current tinnitus and that he suffered acoustic trauma during service. As such, the Veteran meets the first and second elements of this service connection claim and the question is one of nexus. The Veteran has consistently asserted that he first experienced tinnitus during service and that it continued throughout and since his active service. The Veteran specifically stated that his ears started ringing in 1968 after he was involved in a blast. As noted, the Veteran received the Combat Infantryman Badge and a Purple Heart and thus engaged in combat with his lay statements accepted as sufficient proof of service connection because the evidence is consistent with the circumstances of service even in the absence of official record of incurrence. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.303(d). While the May 2015 VA examiner provided a negative nexus opinion, his rationale that there were no records of complaint or treatment for tinnitus in the Veteran’s service records is precisely the type of reasoning that the combat rules were designed to prohibit. Congress enacted the law currently codified at 38 U.S.C. § 1154(b) because of its concern that combat veterans faced “major obstacle[s]” when seeking to assemble the medical records necessary to establish that they suffered an injury or disease while in service. Reeves v. Shinseki, 682 F.3d at 998 (quoting H.R. Rep. No. 1157, at 3 (1941)). In many instances, medical records do not survive combat conditions. Id. Furthermore, due to the exigencies of battle, soldiers may not immediately seek medical treatment for combat-related injuries. Id. Thus, the negative nexus opinion is of no probative weight. In this case, there is competent, credible evidence of acoustic trauma from combat-related arms fire that resulted in tinnitus in and since service. There is no competent, probative evidence to the contrary. Entitlement to service connection for tinnitus is therefore warranted. Increased Rating Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 rating. Otherwise, the lower rating will be assigned. 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 reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath, 1 Vet. App. at 589. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. Entitlement to a compensable initial raring for a right lower extremity scar that is superficial and non-linear, and painful but not unstable The Veteran is currently rated as 10 percent for painful scar and noncompensable for superficial non-linear scar of the right lower extremity pursuant to 38 C.F.R. § 4.118, DCs 7804 and 7802. Under DC 7802, which governs scars other than the head, face, or neck, that are superficial and nonlinear, a 10 percent rating is assignable for area or areas of 144 sq. in. (929 sq. cm.) or greater. 38 C.F.R. § 4.118, DC 7802. Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802, Note (1), (2). DC 7804 provides a 10 percent evaluation for one or two scars that are unstable and painful on examination. A 20 percent evaluation applies to three or four scars that are unstable or painful. A 30 percent evaluation is 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. A February 2016 VA examination report reflects that the Veteran had one scar on the right knee at the level of tibial plateau just anterior and slightly superior to the fibular head that was well-healed, flesh colored, superficial, and non-linear. It was oblong/semi-linear shaped, and measured approximately 2.5cm in total diameter. The scar was not unstable, and there was no frequent loss of covering of skin. The scar was tender with light touch over the lateral joint, but not particularly tender with deep palpation. The scar measured three cm by two cm, with an approximate total area of one cm squared. Based on the evidence of record, the Board finds that an initial rating in excess of 10 percent for a painful scar, and a compensable initial rating for a superficial non-linear scar, is not warranted. Here, the Veteran has one scar on his right knee that is superficial and nonlinear, which is tender to palpation and measures a total area of one cm squared. The scar was well-healed, flesh colored, and stable. Under DC 7804, a 20 percent rating is warranted for three or four scars that are painful or unstable; and under DC 7802, a 10 percent rating is warranted for scars that are superficial and nonlinear measuring total area or areas of 144 sq. in. (929 sq. cm.) or greater. As the evidence reflects that the Veteran has one scar that is superficial and non-linear, measures one cm squared, and is tender to palpation, an initial rating higher than 10 percent for a painful scar, and a compensable initial rating for a superficial non-linear scar, under DCs 7802 and 7804, is not warranted. The Board has considered the Veteran’s claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to this claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).” REASONS FOR REMAND 1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for a right knee injury and entitlement to service connection for residuals of shrapnel wound right leg are remanded. In connection with the claims for entitlement to service connection for residuals of shrapnel wound in the right leg and whether new and material evidence has been received to reopen a previously denied claim for a right knee injury, the Board notes that the RO denied the claims in April 2016. The Veteran submitted a timely notice of disagreement (NOD) in June 2016, and in May 2017 VA contacted the Veteran to clarify the issues on appeal based on the June 2016 NOD. The Veteran specifically stated that he disagreed with, inter alia, the denials for service connection for shrapnel wound of the right leg and right knee injury claimed as shrapnel wound of the right leg. These matters must thus be returned to the AOJ for appropriate consideration and issuance of a statement of the case (SOC) regarding the claims. Manlincon v. West, 12 Vet. App. 238 (1999), codified at 38 C.F.R. § 19.9(c). The matters are REMANDED for the following action: (Continued on the next page)   Take appropriate action in response to the March 2015 NOD concerning the claims for service connection for service connection for residuals of shrapnel wound in the right leg and whether new and material evidence has been received to reopen a previously denied claim for a right knee injury, including issuance of an SOC pertaining to these claims (only if a timely substantive appeal is filed should these issues be returned to the Board). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel