Citation Nr: 1808720 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 14-06 115 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to a disability evaluation in excess of 10 percent for service-connected lumbar degenerative disc disease (DDD) prior to April 18, 2013, and in excess of 20 percent from that date. 3. Entitlement to a disability evaluation in excess of 10 percent for service-connected right knee injury status post meniscectomy. 4. Entitlement to a disability evaluation in excess of 10 percent for service-connected left shoulder degenerative joint disease (DJD) with impingement syndrome. 5. Entitlement to a disability evaluation in excess of 10 percent for service-connected right shoulder DJD with impingement syndrome. 6. Entitlement to a disability evaluation in excess of 10 percent for service-connected right ankle DJD. 7. Entitlement to a disability evaluation in excess of 10 percent for service-connected left ankle fracture status post open reduction internal fixation with DJD. 8. Entitlement to a compensable disability evaluation for service-connected right knee surgical scar. 9. Entitlement to a compensable disability evaluation for service-connected abdominal scar. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD P.S. McLeod, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1988 to November 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2008 and August 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania which denied service connection for hearing loss and granted service connection and assigned initial ratings for the other issues. In a December 2013 rating decision, the RO increased the rating for the back disability to 20 percent, effective April 18, 2013. Thus, the issues before the Board are as noted on the title page. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in October 2015 in a hearing at the Philadelphia RO. A transcript of that hearing has been associated with the Veteran's claims file. The issues of service connection for hearing loss, and increased ratings for the lumbar spine, right knee, left and right shoulder disabilities, left and right ankle disabilities and abdominal scar are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT For the period on appeal the Veteran's right knee scar was not painful or unstable. CONCLUSION OF LAW The criteria for a compensable disability rating for the Veteran's service-connected right knee scar have not been met. 38 U.S.C. §§ 1155, 5107(b) (West 2014); 38 C.F.R. § 4.118, Diagnostic Code (DC) 7804 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability evaluations are determined by comparing a Veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the appellant. 38 C.F.R. § 4.3. The Veteran's right knee scar is currently rated as noncompensable under DC 7804. 38 C.F.R. § 4.118, DC 7804. Under DC 7804, a 10 percent disability evaluation is assigned for one or two scars that are unstable or painful. A 20 percent evaluation is assigned for three or four scars that are unstable or painful. A maximum 30 percent rating is assigned for five or more scars that are unstable or painful. Note (1) in the rating criteria clarify that "unstable" is defined as a scar where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, DC 4804. In addition, 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. Based on a thorough review of the evidence, the Board finds that the Veteran is not entitled to a compensable rating for his service-connected right knee scar. The record before the Board includes VA medical records, examinations, lay statements from the Veteran, and sworn testimony before the undersigned VLJ. These records do not reflect that the Veteran's right knee scar has manifested as painful or unstable. In April 2010 the Veteran underwent a VA scar examination. It was noted that the only symptom the Veteran reported as being associated with his right knee scar was itching. There was no report of "pain, skin breakdown, or other problems." Upon physical examination the Veteran's right knee scar was described as superficial, slightly raised, no keloid, non-tender, with no excoriation or breakdown, and no underlying soft tissue damage or limitation of motion. In October 2010 the Veteran submitted a statement, associated with the notice of disagreement filed by his representative, indicating that he agreed with the April 2010 VA examiner's assessment of his right knee scar. In a November 2014 Form 9 the Veteran again indicated that he agreed with the evaluation of his right knee scar. However, the Veteran also contended that he did not report strictly itching symptoms of his right knee scar and indicated that there was minimal pain associated with the right knee scar. At the Veteran's October 2015 hearing before the undersigned VLJ the Veteran was questioned about his right knee scar symptoms he characterized them as "insignificant" and that they were not tender. The Veteran did not testify about any pain symptoms associated with the right knee scar. The examination of record directly addresses the rating criteria under DC 7804. Furthermore, even the lay statements provided by the Veteran do not expressly indicate that his right knee scar was painful or unstable, but rather "itchy" and have explicitly provided that the Veteran does not take issue with the characterization of his service-connected right knee scar as noncompensable. The Board acknowledges that the Veteran's Form 9 indicated that there was minimal pain associated with his scars but it is not clear if the Veteran was referring to his right knee or abdominal scars. There is no other competent evidence of record that indicates that the Veteran's right knee scar was painful or unstable during the period on appeal. The Board has considered whether a higher rating is warranted under any of the other diagnostic codes pertaining to scars. However, as there is only one scar that is not deep and is not superficial affecting an area of 144 sq. inches or greater, an increased rating under DC 7801 or 7802 is not warranted. Therefore, the Veteran's claim for entitlement to a compensable evaluation for service-connected right knee scar must be denied. ORDER Entitlement to a compensable disability evaluation for service-connected right knee scar is denied. REMAND The remaining issues on appeal must be remanded for additional development. A. Service connection for hearing loss The Veteran underwent a VA audiological examination in September 2013. Review of that examination indicates that the VA examiner found that the Veteran had sufficient in-service noise exposure and did present with hearing loss with slight shifts from his 2008 audiological examination results. However, the Veteran's hearing loss still did not manifest at a level to qualify as a disability for VA rating purposes. In his February 2014 Form 9 the Veteran stated that he is in need of constant increased volume level on his television to be able to properly hear indicating further functional impact of his bilateral hearing loss. At the October 2015 hearing, the Veteran essentially argued that his hearing has decreased since the September 2013 examination. Given his assertions and conceded in-service noise exposure, a new examination should be conducted. B. Orthopedic Disabilities In his October 2015 testimony the Veteran indicated that he felt that his April 2013 VA examinations for his service-connected lumbar spine, right knee, bilateral shoulder, and bilateral ankle disabilities did not adequately capture the impact and limitations of his daily symptoms, specifically as due to pain. A review of the April 2013 examinations indicates that the Veteran endorsed experiencing flare-ups associated with each of his orthopedic disabilities; the impact of these flare-ups was described as causing pain with activity. However, the examiner in each of the examinations did not appear to provide any opinion on whether pain, weakness, fatigability or incoordination significantly limits the Veteran's functional ability during flare-ups. Furthermore, despite the acknowledgement that the Veteran experiences flare-ups, these examinations do not indicate any attempt by the examiner to ascertain adequate information-i.e., frequency, duration, characteristics, severity, or functional loss-regarding the flares by alternative means. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The last examination was conducted in April 2013. Therefore, due to the passage of time since the examination and the inadequacy of the previous examination, the Board finds that additional development is warranted to determine the current nature, extent, severity and manifestations of these service-connected disabilities on appeal. See Snuffer v. Gober, 10 Vet. App. 400 (1997). C. Abdominal Scars The Veteran underwent a VA scar examination in April 2010. The physical examination results provided that the Veteran had an abdominal scar that was non-tender, raised but not painful, with mild keloid formation, and with no soft tissue changes or limitation of motion. The examination also revealed that the Veteran had a scar below the umbilicus into the suprapubic area that was raised, with slight keloiding, no pain, not deep, and with no soft tissue changes or limitation of motion. In October 2010 the Veteran submitted a statement disputing the characterization of his scars in the previous examination. With regard to the scar on his upper abdomen the Veteran stated that he experienced itching and burning sensations that varied between moderate to intense "depending on clothing, temperature, and other factors." Regarding the lower abdominal scar the Veteran reported the same symptomatology. In his November 2014 Form 9 the Veteran stated that he had "daily pain, itching, and other problems associated with both [abdominal] scars." The Veteran also disputed the characterization of his abdominal scars as "non-tender," saying this was false. The Veteran stated that the examiner "did not ask if the scars were painful" and that he felt that the examiner assumed that he had no pain because the Veteran did not offer the information at the outset of the examination. In his October 2015 testimony before the undersigned VLJ the Veteran stated that his abdominal scars itched constantly and that the lower scar felt tender when he wore a belt. The Veteran has not had a VA examination to assess the nature and severity of his service-connected abdominal scars since April 2010. Therefore, due to the passage of time since the examination, and the Veteran's lay statements concerning pain and tenderness of his abdominal scars, the Board finds that additional development is warranted to determine the current nature, extent, severity and manifestations of this service-connected disability. See Snuffer, 10 Vet. App. at 400. Additionally, updated treatment records should be obtained. See 38 C.F.R. § 3.159; see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Take all appropriate action to update the Veteran's claims file and obtain any outstanding VA medical records. 2. After completion of the above schedule the Veteran for the appropriate examination to determine the current nature and likely etiology of his bilateral hearing loss. If the VA examiner finds that the Veteran's bilateral hearing loss meets the requirements to be considered a disability for VA rating purposes then the examiner should provide the following opinion: Is it at least as likely as not (within the realm of 50 percent probability or greater) that the Veteran's hearing loss was caused by his active duty service, to include conceded exposure to in-service acoustic trauma? A full and well-reasoned rationale must be provided for all opinions reached. 3. Schedule the Veteran for the appropriate VA examination to determine the current nature and severity of his lumbar degenerative disc disease. Copies of all pertinent records should be made available to the examiner for review. The examiner is requested to delineate all symptomology associated with, and the current severity of, the lumbar disability to specifically include any neurological symptoms. The appropriate Disability Benefits Questionnaire (DBQs) should be filled out for this purpose if possible. The examiner is specifically requested to address the following: (a) Comment on the functional impairment caused by the Veteran's lumbar disability during flare-ups since June 2008; to include specific consideration of the frequency, duration, characteristics and severity of the flare-ups. In making this determination the examiner is specifically directed to ascertain adequate information-i.e., frequency, duration, characteristics, severity, or functional loss-regarding the Veteran's flares by any available means, to include the Veteran's lay statements and all other evidence of record. (b) On current examination, test the Veteran's lumbar spine for pain on both active and passive motion, in weight-bearing and nonweight-bearing, if possible. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why this is so. The examiner must provide a complete rationale for any opinion expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Schedule the Veteran for the appropriate VA examination to determine the current nature and severity of his right knee injury status post meniscectomy. Copies of all pertinent records should be made available to the examiner for review. The examiner is requested to delineate all symptomology associated with, and the current severity of, the right knee disability. The appropriate Disability Benefits Questionnaire (DBQs) should be filled out for this purpose if possible. The examiner is specifically requested to address the following: (a) Comment on the functional impairment caused by the Veteran's right knee disability during flare-ups since June 2008; to include specific consideration of the frequency, duration, characteristics and severity of the flare-ups. In making this determination the examiner is specifically directed to ascertain adequate information-i.e., frequency, duration, characteristics, severity, or functional loss-regarding the Veteran's flares by any available means, to include the Veteran's lay statements and all other evidence of record. (b) The examiner should also specifically address the Veteran's lay statements regarding buckling and instability in his right knee. (c) On current examination, test the Veteran's right knee for pain on both active and passive motion, in weight-bearing and nonweight-bearing, if possible. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why this is so. The examiner must provide a complete rationale for any opinion expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. Schedule the Veteran for the appropriate VA examination to determine the current nature and severity of his bilateral shoulder degenerative joint disease with impingement syndrome. Copies of all pertinent records should be made available to the examiner for review. The examiner is requested to delineate all symptomology associated with, and the current severity of, the bilateral shoulder disability. The appropriate Disability Benefits Questionnaire (DBQs) should be filled out for this purpose if possible. The examiner is specifically requested to address the following: (a) Comment on the functional impairment caused by each shoulder disability during flare-ups since June 2008; to include specific consideration of the frequency, duration, characteristics and severity of the flare-ups. In making this determination the examiner is specifically directed to ascertain adequate information-i.e., frequency, duration, characteristics, severity, or functional loss-regarding the Veteran's flares by any available means, to include the Veteran's lay statements and all other evidence of record. (b) On current examination, test both shoulders for pain on both active and passive motion, in weight-bearing and nonweight-bearing, if possible. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why this is so. The examiner must provide a complete rationale for any opinion expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 6. Schedule the Veteran for the appropriate VA examination to determine the current nature and severity of his bilateral ankle disabilities. Copies of all pertinent records should be made available to the examiner for review. The examiner is requested to delineate all symptomology associated with, and the current severity of, the bilateral ankle disability. The appropriate Disability Benefits Questionnaire (DBQs) should be filled out for this purpose if possible. The examiner is specifically requested to address the following: (a) Comment on the functional impairment caused by each ankle during flare-ups since June 2008; to include specific consideration of the frequency, duration, characteristics and severity of the flare-ups. In making this determination the examiner is specifically directed to ascertain adequate information-i.e., frequency, duration, characteristics, severity, or functional loss-regarding the Veteran's flares by any available means, to include the Veteran's lay statements and all other evidence of record. (b) On current examination, test both shoulders for pain on both active and passive motion, in weight-bearing and nonweight-bearing, if possible. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why this is so. The examiner must provide a complete rationale for any opinion expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 7. Schedule the Veteran for the appropriate VA examination to determine the current nature and severity of his abdominal scars. Copies of all pertinent records should be made available to the examiner for review. The examiner is requested to delineate all symptomology associated with, and the current severity of, the bilateral ankle disability. The appropriate Disability Benefits Questionnaire (DBQs) should be filled out for this purpose if possible. The examiner is specifically requested to address the following: The Veteran's lay statements and testimony regarding pain, burning, tenderness, and itching associated with his abdominal scars. 8. Then, readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided an SSOC and afforded an opportunity to respond. The case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the 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 (West 2014). ______________________________________________ M.E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs