Citation Nr: 1808494	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  10-18 313	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1. Entitlement to service connection for residuals of left great toe infection.

2. Entitlement to service connection for a stomach disorder due to positive tuberculosis (TB) test with medication.

3. Entitlement to service connection for left hand numbness, to include as secondary to service-connected disabilities.

4. Entitlement to service connection for right hand numbness, to include as secondary to service-connected disabilities.

5. Entitlement to service connection for a right hip disorder.

6. Entitlement to an initial compensable evaluation for bilateral hearing loss.

7. Entitlement to an initial compensable evaluation for allergic rhinitis.

8. Entitlement to an initial evaluation in excess of 10 percent prior to September 30, 2008, and 20 percent thereafter, for degenerative disc disease of the cervical spine status post resection.

9. Entitlement to an initial compensable evaluation prior to May 5, 2017, and in excess of 10 percent thereafter, for thoracic spine strain.

10. Entitlement to an initial compensable evaluation prior to May 5, 2017, and in excess of 10 percent thereafter, for left shoulder strain.

11. Entitlement to an initial compensable evaluation prior to May 5, 2017, and in excess of 10 percent thereafter, for right shoulder strain.

12. Entitlement to an initial compensable evaluation prior to May 5, 2017, and in excess of 10 percent thereafter, for left knee strain.

13. Entitlement to an initial compensable evaluation prior to May 5, 2017, and in excess of 10 percent thereafter, for right strain.

14. Entitlement to an initial compensable evaluation prior to October 21, 2008, in excess of 30 percent from October 21, 2008, to May 5, 2017, and in excess of 50 percent thereafter, for residual scar, benign meningioma status post-surgical excision, to include whether a separate compensable scarring is warranted for painful scarring.


REPRESENTATION

Appellant represented by:	Virginia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Christopher Murray, Counsel


INTRODUCTION

The Veteran had active military service from March 1995 to January 2008.

This case initially came before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii.  Jurisdiction of the appeal has been transferred to the RO in Roanoke, Virginia.

The Veteran testified before the Board at a March 2016 hearing conducted via videoconference.  A transcript of the hearing is of record.  The Veteran has just changed representatives to the one currently listed on the title page.

This case was previously before the Board in August 2016, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development.  The issues of increased initial evaluations for cervical spine, thoracic spine, bilateral shoulder, and bilateral knee disabilities are addressed in the REMAND portion of the decision below and are again REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran has not been diagnosed with a chronic disability due to residuals of a left great toe infection at any point during the appeal period.

2. The Veteran has not been diagnosed with a chronic stomach disability at any point during the appeal period; any such symptomatology is not associated with an undiagnosed illness due to service in Southwest Asia.

3. The Veteran has not been diagnosed with a chronic disability manifested by left hand numbness at any point during the appeal period; any such symptomatology is not associated with an undiagnosed illness due to service in Southwest Asia.

4. The Veteran has not been diagnosed with a chronic disability manifested by right hand numbness at any point during the appeal period; any such symptomatology is not associated with an undiagnosed illness due to service in Southwest Asia.

5. A history of right hip fracture was noted upon the Veteran's entrance to active service and any associated residuals were not aggravated by such service.

6. Bilateral hearing loss is manifested throughout the appeal period by no more than Level II hearing acuity in the left ear and Level II hearing acuity in the right ear.

7. Resolving all doubt in the Veteran's favor, residual scarring, benign meningioma status post-surgical excision was manifest throughout the period prior to May 5, 2017, by a level, nontender scar of the head/neck measuring 7.5 inches (in.) in length and 0.25 in. in width; there were no objective findings of pain on examination, nor was there evidence of visible or palpable tissue loss or at least four characteristics of disfigurement.

8. As of May 5, 2017, residual scarring, benign meningioma status post-surgical excision was manifest by a scar of the head/neck measuring 19 centimeters (cm.) in length and 2 cm. in width; there was no evidence of asymmetry of three paired sets of features or at least six characteristics of disfigurement.

9. The Veteran's residual scarring, benign meningioma status post-surgical excision is manifest by one tender and/or painful scar.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for residuals of a left great toe infection have not been met.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017).

2. The criteria for entitlement to service connection for a stomach disorder have not been met.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017).

3. The criteria for entitlement to service connection for numbness of the left hand have not been met.  38 U.S.C. §§ 1110, 1117, 1118 (2012); 38 C.F.R. §§ 3.303, 3.317 (2017).

4. The criteria for entitlement to service connection for numbness of the right hand have not been met.  38 U.S.C. §§ 1110, 1117, 1118 (2012); 38 C.F.R. §§ 3.303, 3.317 (2017).

5. The criteria for entitlement to service connection for a right hip disorder have not been met.  38 U.S.C. §§ 1110, 1111, 1153 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017).

6. The criteria for an initial compensable evaluation for bilateral hearing loss have not been met.  38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.102, 4.85, 4.86, Diagnostic Code 6100 (2017).

7. The criteria for an initial evaluation of 30 percent, but not greater, for residual scarring, benign meningioma status post-surgical excision, have been met throughout the period prior to October 21, 2008.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.118, Diagnostic Code 7800 (2017).

8. The criteria for an initial evaluation in excess of 30 percent prior to May 5, 2017, or 50 percent thereafter, for residual scarring, benign meningioma status post-surgical excision, have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.118, Diagnostic Code 7800 (2017).

9. The criteria for a separate initial evaluation of 10 percent, but not greater, for residual scarring, benign meningioma status post-surgical excision, based on a painful scar have been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.118, Diagnostic Code 7804 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

The Veteran has been provided notice letters throughout the appeal that address all notice elements required.  All pertinent treatment records identified by the Veteran have been obtained, and VA examinations have been provided where warranted.  There has been no allegation of errors with the duties to notify and/or assist in the instant case.  See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009); see also Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the Veteran fails to raise them before the Board); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

As noted above, the instant appeal has been previously remanded in August 2016.  There has been substantial compliance with the Board's remand directives as they pertain to the issues decided herein, and adjudication of the appeal may proceed.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist.  38 U.S.C. §§ 5103 and 5103A; 38 C.F.R. § 3.159.

Analysis

Board decisions must be based on the entire record, with consideration of all the evidence.  38 U.S.C. § 7104.  The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant.  Timberlake v. Gober, 14 Vet. App. 122 (2000).  The Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).

It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim.  Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

I. Service Connection

Service connection may be established on a direct basis for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

Residuals of a Left Great Toe Fracture, Stomach Disorder, Bilateral Hand Numbness

The Veteran asserts entitlement to service connection for residuals of a great toe fracture, a stomach disorder, and bilateral hand numbness, each as directly related to his period of active service.  Specifically, he asserts that he continues to suffer from pain, tenderness, and swelling in the same location as an in-service left great toe infection.  He also asserts he experiences frequent diarrhea, stomach pain after initially eating in the morning, upset stomach once a day, heartburn, excess gas, and occasional bowel urgency.  He claims these symptoms are due to a positive TB test with medication or, in the alternative, caused by an undiagnosed illness due to his service in Southwest Asia.  Finally, the Veteran asserts bilateral hand numbness associated either with a two-week history of left hand numbness in service or caused by an undiagnosed illness due to his service in Southwest Asia.

Significantly, however, the competent medical evidence of record, which includes physical examination and clinical testing, indicates no pathology to support a medical diagnosis of residuals of a left great toe infection, a stomach disorder, or a disability manifest by left and/or right hand numbness.  The Board acknowledges the Veteran's complaints of left great toe tenderness and pain, stomach discomfort, and bilateral hand numbness, and that he is competent to report such symptomatology.  However, such symptomatology is not, in and of itself, a disability for the purposes of service connection.  Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (holding that subjective symptoms alone, including pain, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted), appeal dismissed, 259 F.3d 1356 (Fed. Cir. 2001).  The Veteran is not shown to have the medical expertise required to competently diagnose himself with a chronic disability.  See Davidson v. Shinseki, 581 F.3d 1313 (2009).  

The Board has considered the applicability of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 as they pertain to undiagnosed illnesses due to service in Southwest Asia.  However, a May 2017 VA examiner attributed the Veteran's stomach symptomatology to the administration of the medication Isoniazid and that, following a thorough review of peer-reviewed medical literature, there is insufficient evidence to determine that an association exists between potential exposures during service in Southwest Asia and conditions that could cause hand numbness.  Therefore, while the Veteran did service within Southwest Asia, 38 C.F.R. § 3.317 is not for application.

In the absence of proof of a present disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (a "current disability" exists if the diagnosed disability is present at the time of the claim or during the pendency of that claim).

Absent a diagnosis of chronic residuals of a left great toe infection, a chronic stomach disorder, or a chronic disability manifest by bilateral hand numbness at any point during the appeal period, the preponderance of the evidence weighs against the Veteran's claims, and the benefit-of-the-doubt rule does not apply.  Service connection for these disabilities must be denied.  38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55.

Right Hip Disorder

The Veteran claims entitlement to service connection for a right hip disorder as directly related to his period of active service.  

Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled in service, except for defects, diseases, or infirmities noted at the time of entrance, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto.  See 38 U.S.C. § 1111 (2012).  The term "noted" denotes only such conditions that are recorded in examination reports.  38 C.F.R. § 3.304(b) (2017).  Determinations of whether a condition existed prior to service should be "based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to...manifestations, clinical course, and character of the particular injury or disease or residuals thereof."  Id.  

In the instant case, even though a July 1994 Report of Medical Examination found the Veteran's musculoskeletal system and lower extremities to then be clinically normal, the accompanying summary of defects and diagnoses completed by the examining clinician noted a history of a fractured right hip in a pre-service motor vehicle accident.  Given this notation by the examining physician, the Board finds that a right hip fracture preexisted active service; therefore, the presumption of soundness does not apply in this case.  38 U.S.C. § 1111 (2012).

The Board must next determine whether the Veteran's preexisting disability was aggravated by his military service.  A preexisting disability will be presumed to have been aggravated by military service when there is an increase in disability during such service, unless there is a specific finding that the increase is due to the natural progress of the disease.  See 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306(a) (2017).  Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306(b) (2017); Falzone v. Brown, 8 Vet. App. 398, 402 (1995).

The burden falls on the Veteran to establish an increase in severity.  See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).  Such increase must be shown through independent medical evidence.  See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994).  Should an increase be established, the presumption of aggravation under section 1153 applies, and the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease."  38 U.S.C. § 1153 (2012); see also 38 C.F.R. § 3.306 (2017); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).

Initially, the Veteran acknowledged he did not injure his right hip during active service.  See, e.g., Board Hearing Transcript at 15.  There is no objective medical evidence that his history of a right hip fracture underwent a permanent increase in severity during service.  In fact, the May 2017 VA examiner specifically found the Veteran's current osteoarthritis of the right hip did not occur earlier than is what is expected for the nature progression of the disease.

In light of such evidence, the Veteran has not satisfied his burden of establishing an increase in severity of his preexisting history of a right hip fracture during service.  See Wagner, 370 F.3d at 1096.  Absent such an increase in severity, aggravation of the preexisting disability may not be conceded.  38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306(b) (2017); Falzone, 8 Vet. App. at 402. 

In sum, a history of a right hip fracture was noted by the examining physician at the Veteran's entry to active service.  Further, the evidence supports a conclusion that there was no increase in severity of the Veteran's preexisting right hip fracture during service.  As such, the Veteran's claim of service connection for a right hip disorder must be denied.  38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306(b) (2017).

II. Increased Initial Evaluations

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  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 (1995).

Evidence to be considered in the appeal of the assignment of a disability rating is not limited to that reflecting the then current severity of the disorder.  Fenderson v. West, 12 Vet. App. 119 (1999).  In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period (i.e., "staged ratings").  Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007).

Hearing Loss

The Veteran's service-connected bilateral hearing loss has been evaluated as noncompensable under the provisions of Diagnostic Code 6100.  See 38 C.F.R. § 4.85 (2017).  In evaluating hearing loss under the schedular criteria, disability ratings are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment.  Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears.  38 C.F.R. § 4.85.

When the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral.  38 C.F.R. § 4.86(a).  Additionally, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral.  Thereafter, that numeral will be elevated to the next higher numeral.  38 C.F.R. § 4.86(b).

Turning to the record, at a September 2009 VA contract examination, pure tone thresholds, in decibels, were as follows:






HERTZ



1000
2000
3000
4000
Average
RIGHT
25
25
30
25
26
LEFT
25
30
25
45
31

Speech audiometry revealed speech recognition ability of 84 percent bilaterally.  Entering the average pure tone thresholds and speech recognition abilities into Table VI reveals the highest numeric designation of hearing impairment is II for both the right and left ears.  See 38 C.F.R. § 4.85.  Entering the category designations for each ear into Table VII does not result in a compensable evaluation under Diagnostic Code 6100.

At an April 2017 VA examination, pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
10
10
5
20
11
LEFT
5
10
5
25
11

Speech audiometry revealed speech recognition ability of 96 percent bilaterally.  Entering the average pure tone thresholds and speech recognition abilities into Table VI reveals the highest numeric designation of hearing impairment is I for both the right and left ears.  See 38 C.F.R. § 4.85.  Entering the category designations for each ear into Table VII does not result in a compensable evaluation under Diagnostic Code 6100.

The Board acknowledges the Veteran's contentions that his service-connected bilateral hearing loss warrants an initial compensable evaluation.  However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment.  Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.85 with respect to determining the severity of his service-connected hearing loss.  See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also Davidson v. Shinseki, 581 F.3d 1313 (2009).

The Board finds that there is no audiological evidence of record to support an initial compensable evaluation for the Veteran's bilateral hearing loss at any point during the appeal period.  See Fenderson, supra.  The preponderance of the evidence is against his claim for an increased evaluation.  Consequently, the benefit-of-the-doubt rule does not apply.  38 U.S.C. § 5107(b) (2012); Gilbert, 1 Vet. App. at 55.

Residual Scars, Benign Meningioma Status Post-Surgical Excision

The Veteran's service-connected residual scarring, benign meningioma status post-surgical excision, has been assigned an initial noncompensable evaluation prior to October 21, 2008, 30 percent from October 21, 2008, and 50 percent thereafter, pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7800 (2017).  Initially, the Board notes that 38 C.F.R. § 4.118 was amended during the pendency of this appeal. 73 Fed. Reg. 54,708- 54,712 (October 23, 2008).  Pertinent to this appeal, however, the criteria under Diagnostic Code 7800 were not affected by these amendments.  

Diagnostic Code 7800, pertaining to disfigurement of the head, face or neck, provides for an 80 percent evaluation when there is 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.  38 C.F.R. § 4.118, Diagnostic Code 7800.

A 50 percent evaluation is assigned where there is 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.  Id.

A 30 percent evaluation is warranted when there is 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.  Id.

For one characteristic of disfigurement, a 10 percent evaluation is assigned.  Id.

The eight characteristics of disfigurement for purposes of evaluation under § 4.118 are: (1) a scar 5 or more inches (13 or more cm.) in length; (2) scar at least one- quarter inch (0.6 cm.) wide at widest part; (3) surface contour of scar elevated or depressed on palpation: (4) scar 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, atrophic, 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.); (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.).  Id., Note (1).

Turning to the record, at a November 2008 VA examination, the examiner noted a scar extending from the vortex to the mid-cervical spine measuring 7.5 in. long and 0.25 in. wide, which stood out from the surrounding hair.  There was keloid thickening of the lower 1/23 of the scar.  The scar was healed, non-tender, and not adherent to underlying structures.  There was no gross distortion or asymmetry of the nose, chin, forehead, eyes, ears, cheeks, or lips.

At a May 2017 VA examination, a single, painful scar located in the occipital region was noted, measuring 19 cm long and 2 cm. wide.  The scar was noted to be elevated and/or depressed on palpation and adherent to underlying tissue.  While the Veteran reported misalignment of facial features, the examiner specifically noted that following close inspection, there is not any deformity or misalignment of the ears or other facial features.

In reviewing the evidence of record, and resolving all doubt in the Veteran's favor, the Board finds that an initial 30 percent evaluation is warranted throughout the period prior to May 5, 2017, including prior to October 21, 2008.  In this regard, the Board acknowledges a May 2008 VA examination that noted a scar of the posterior neck/scalp measuring 9 cm (3.5 in) long and 0.5 cm (0.2 in) wide.  However, the Board notes that this examination was focused on the Veteran's general medical health, and did not include a thorough examination of the Veteran's scar.  Further, as there was no intervening medical procedures, the Board finds it unlikely that the scar would have more than doubled in length six months later at the time of the November 2008 VA scars examination.  As such, the Board finds the Veteran's scar exhibited three characteristics of disfigurement (5 or more in. in length, 0.25 in. in width, and elevated/depressed on palpation), warranting a 30 percent evaluation throughout this period.  However, there is no evidence of gross distortion or asymmetry of paired sets of features or at least four characteristics of disfigurement; thus, a higher evaluation is not warranted prior to May 5, 2017.

As of May 5, 2017, the evidence of record supports a finding of four characteristics of disfigurement (5 or more in. in length, 0.25 in. in width, adherent to underlying tissue, and elevated/depressed on palpation).  However, there is no evidence of gross distortion or asymmetry of paired sets of features or at least six characteristics of disfigurement; thus, a higher evaluation is not warranted prior to May 5, 2017.

Finally, as discussed above, the May 2017 VA examination noted the Veteran's scar was tender and/or painful.  Furthermore, at the March 2016 Board hearing, the Veteran testified that his scar is tender and gets painful when sunburned.  Therefore, the Board finds that a separate initial evaluation of 10 percent is warranted for one scar that is painful on examination.  See 38 C.F.R. § 4.118, Diagnostic Code 7804.

In light of the evidence discussed above, and resolving all doubt in the Veteran's favor, the Board finds that a 30 percent evaluation is warranted throughout the period prior to May 5, 2017.  However, the preponderance of the evidence is against the assignment of an initial evaluation greater than 30 percent prior to May 5, 2017, and 50 percent thereafter, and the benefit-of-the-doubt rule does not apply to this aspect of the Veteran's appeal.  See 38 U.S.C. § 5107 (2012).  Finally, the Board finds that the Veteran is entitled to a 10 percent evaluation, but not greater, for painful residuals of his service-connected residual scar pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7804.  See Fenderson, supra.


ORDER

Service connection for residuals of a left great toe infection is denied.

Service connection for a stomach disorder is denied.

Service connection for left hand numbness is denied.

Service connection for right hand numbness is denied.

Service connection for a right hip disorder is denied.

An initial compensable evaluation for bilateral hearing loss is denied.

An initial evaluation of 30 percent, but not greater, for residual scar, benign meningioma status post-surgical excision, is granted prior to October 21, 2008, subject to the laws and regulations governing the payment of monetary benefits.

An initial evaluation greater than 30 percent prior to May 5, 2017, and 50 percent thereafter, for residual scar, benign meningioma status post-surgical excision, is denied.

An initial evaluation of 10 percent, but not greater, for residual scar, benign meningioma status post-surgical excision, based on a painful scar is granted, subject to the laws and regulations governing the payment of monetary benefits.


REMAND

For the remaining issues on appeal, another remand is unfortunately required.  With respect to the cervical and thoracic spine, bilateral shoulder, and bilateral knee disabilities, the Board instructed in the August 2016 remand that the Veteran be provided new VA examinations to address the current severity of these disabilities.  While these additional examinations were provided, the examination reports are now inadequate for rating purposes.  

Subsequent to the Board's remand, the U.S. Court of Appeals for Veterans Claims held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  See Correia v. McDonald, 28 Vet. App. 158 (2016).  The requirements of Correia also apply in cases where ratings are not predicated on limitation of motion of the affected part.  See Southall-Norman v. McDonald, 28 Vet.App. 346, 351 (2016).  The May 2017 VA examination reports do not include any section for specifying ranges of motion as demonstrated on active and/or passive testing or on weight-bearing.  

Additionally, the examination and the addendum in December 2016 fail to include an estimate of additional functional limitation due to flare-ups.  The examiner in May stated that it was not possible to provide an estimate of additional functional loss of each pertinent joint during flare-ups without being able to observe the flare-up.  However, the Court recently held that this is an insufficient basis for not providing an estimate.  Sharp v. Shulkin, 29 Vet. App. 26 (2017).  

Finally, in March 2017 correspondence (mistakenly dated May 25, 2017), the Veteran indicated that VA has agreed to provide treatment at a private allergist.  VA's duty to assist includes obtaining records from non-VA facilities provided at VA expense.  38 C.F.R. § 3.159(c)(2) (2017).  Records related to this treatment may be significantly relevant to the Veteran's increased evaluation claim for allergic rhinitis and must be obtained and associated with the claims file.  Id.

Accordingly, the case is REMANDED for the following action:

1. Undertake the steps necessary to obtain records of non-VA treatment for allergic rhinitis, provided at VA expense.  The Veteran's assistance should be requested as needed.  Efforts to obtain these records must continue until it is reasonably determined they do not exist or a negative reply is received.  If the records are not available, the AOJ should make a formal finding of unavailability, advise the Veteran and his representative of the status of his records, and give the Veteran the opportunity to obtain the records on his own.  All attempts to obtain records should be documented in the claims folder.

It is noted that multiple examinations are requested below.  It may be that one examiner may be able to conduct more than one of the examinations.  That the matters are set out in separate paragraphs does not mean that separate examinations are needed where it is medically feasible for a single examiner to address several of the requests below.

2. Schedule the Veteran for a VA examination to evaluate the severity of his service-connected cervical and thoracic spine disabilities.  The entire claims file must be provided to the examiner for review, and the examination report should reflect that such a review was accomplished.  All clinically indicated tests and consultations should be performed and any findings reported in detail.  

The VA examination must include joint testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing.  The examiner should indicate whether there is objective evidence of pain on motion, weakness, excess fatigability, instability, and/or incoordination and to what extent the Veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use.  The examiner should estimate, in degrees of lost motion, the additional functional limitation caused by repeated movement or on flare-up.  Merely being unable to observe a flare-up is an insufficient reason not to provide an estimate.

3. Schedule the Veteran for a VA examination to evaluate the severity of his service-connected bilateral shoulder disabilities.  The entire claims file must be provided to the examiner for review, and the examination report should reflect that such a review was accomplished.  All clinically indicated tests and consultations should be performed and any findings reported in detail.  

The VA examination must include joint testing for pain on both active and passive motion and weight-bearing and non-weight-bearing.  The examiner should indicate whether there is objective evidence of pain on motion, weakness, excess fatigability, instability, and/or incoordination of the shoulder joint(s) and to what extent the Veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use.  The examiner should estimate, in degrees of lost motion, the additional functional limitation caused by repeated movement or on flare-up.  Merely being unable to observe a flare-up is an insufficient reason not to provide an estimate.

4. Schedule the Veteran for a VA examination to evaluate the severity of his service-connected bilateral knee disabilities.  The entire claims file must be provided to the examiner for review, and the examination report should reflect that such a review was accomplished.  All clinically indicated tests and consultations should be performed and any findings reported in detail.  

The VA examination must include joint testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing.  The examiner should indicate whether there is objective evidence of pain on motion, weakness, excess fatigability, instability, and/or incoordination of the knees and to what extent the Veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use.  The examiner should estimate, in degrees of lost motion, the additional functional limitation caused by repeated movement or on flare-up.  Merely being unable to observe a flare-up is an insufficient reason not to provide an estimate.

5. Schedule the Veteran for a VA examination to evaluate the severity of his service-connected right ankle disability and low back disability.  The entire claims file must be provided to the examiner for review, and the examination report should reflect that such a review was accomplished.  All clinically indicated tests and consultations should be performed and any findings reported in detail.  

6. The Veteran is hereby notified that it is his responsibility to report for the examinations and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2017).  In the event that the Veteran does not report for the aforementioned examination(s), documentation should be obtained which shows that notice scheduling the examination(s) was sent to the last known address.  It should also be indicated whether any notice that was sent was returned as undeliverable.

7. Review the additional evidence and ensure its compliance with the instruction above.  If the development is deficient in any manner, corrective measures must be undertaken prior to recertification of the appeal to the Board.

8. After completing the above, and any other development deemed necessary, readjudicate the Veteran's appeal based on the entirety of the evidence.  If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case.  An appropriate period of time should be allowed for response.   

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).


______________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs