Citation Nr: 1808722 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 10-32 061 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for prostatitis (claimed as venereal disease and urinary tract disorder). 3. Entitlement to service connection for a right-side inguinal hernia. 4. Entitlement to an initial compensable rating for bilateral hearing loss. 5. Entitlement to an initial rating greater than 10 percent for hepatitis B. 6. Entitlement to an initial compensable rating for right upper eyelid laceration (scar). ATTORNEY FOR THE BOARD N. Stevens, Associate Counsel INTRODUCTION The Veteran had active service from August 1964 to January 1971 and from March 1971 to September 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The January 2008 rating decision granted initial noncompensable disability ratings for bilateral hearing loss and upper right eyelid laceration and granted an initial 10 percent disability rating for Hepatitis B. All ratings were effective July 11, 2006. The rating also denied service connection back pain, right side inguinal hernia, and prostatitis. The issues of increased ratings for bilateral hearing loss and hepatitis B, and entitlement to service connection for prostatitis, and a back disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The preponderance of the evidence does not reflect that the Veteran has an inguinal hernia due to any incident of his active duty service. 2. The Veteran does not have a scar from a laceration on the right upper eyelid that is unstable and/or painful. CONCLUSIONS OF LAW 1. The Veteran does not have a right-side inguinal hernia that was incurred or aggravated in service. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, (2017). 2. The criteria for a compensable disability rating for a right upper eyelid laceration are not met. 38 U.S.C §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.118, Diagnostic Code 7804 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA's duty to notify was fulfilled by August 2006 and September 2007 letters. 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With regard to the duty to assist, the Veteran's service treatment records, VA medical treatment records, and any indicated private treatment records have been obtained. Hurd v. West, 13 Vet. App. 449, 452 (2000). The Veteran was afforded VA examinations in October 2007. The examinations were based on a thorough examination, a description of the Veteran's pertinent medical history, and a review of the claims file. The examinations addressing the right-side inguinal hernia and the right upper eyelid lacerations are adequate for adjudication purposes. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Thus, the Board finds that the VA has complied with its duty to notify and assist in the development of the claims. II. Service Connection for a Right-side Inguinal Hernia Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1131 (2012); 38 C.F.R. § 3.303 (2017). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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. 38 C.F.R. § 3.303 (d) (2017). To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (2017); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is outlined in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that he has an inguinal hernia that was caused in service. The Veteran's STRs are void of complaints, treatment or diagnosis of an inguinal hernia. Post-service treatment notes dated in July 2000, indicate that the Veteran was seen for a consultation for a right-side inguinal hernia. It was noted that in January 1999 that the Veteran was diagnosed with a small reducible right-side inguinal hernia. The notes also indicated that the Veteran was seen in February and March 1999, with no mention of a hernia. Upon examination, the consulting physician noted that the Veteran had no bulge and a normal appetite with daily bowel movements. Post-service treatment records do not show a diagnosis of a right-side inguinal hernia. Moreover, during an October 2007 VA examination, the examiner noted that the Veteran's abdomen revealed no striae on the abdominal wall, no distension of superficial veins, no ostomy and no tenderness to palpitation. No hernia was noted. Private treatment records from November 2008 specifically note that there was no inguinal hernia present. Private treatment records from November 2009 note that there was no hernia of the stomach. A private treatment record noted that the Veteran had a history of an inguinal hernia. However, upon examination, the healthcare provider specified that no hernia was present. Private treatment records from October 2010 specifically note that no inguinal hernia was present. Treatment records note a diagnosis of a hiatal (upper stomach) hernia, which is located on a different part of the body than an inguinal (groin) hernia. Dorland's Illustrated Medical Dictionary, 851 (30th ed.). The competent medical evidence of record fails to show a current diagnosis of a right-side inguinal hernia during the appeal period. Therefore, the first element of a service connection claim is not satisfied. Shedden, 381 F.3d at 1166-67. The Veteran asserts in his NOD and his Form 9 that his right-side inguinal hernia condition is "directly related to his military duties," which involved moving heavy equipment up and down stairs. He is competent to report observable symptoms such as abdominal pain. Layno v. Brown, 6 Vet. App. 465. However, in this case, the Veteran does not possess the training needed to diagnose a complicated medical condition such as a right-side inguinal hernia. Kahana v. Shinseki, 24 Vet. App. at 435. Determining whether a medical disorder is pertinent or the etiology of any medical disorder requires medical inquiry into biological processes and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. Jandreau, 492 F.3d 1372 (Fed. Cir. 2007). Furthermore, a competent medical professional has diagnosed a hiatal, not inguinal, hernia. Therefore, the probative value of the Veteran's lay opinion is low. The Board finds that the probative evidence of record does not support a finding that the Veteran has had a right-side inguinal hernia during the appeal period. The most recent evidence of record of a right side inguinal hernia was in January 1999, well in advance of the appeal period. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). In the absence of evidence of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007) (finding that the requirement for a current disability is satisfied if the claimant has a disability at the time a claim was filed or at any time during the pendency of the appeal, even if the disability resolves prior to the Secretary's adjudication of the claim). The preponderance of the probative evidence of record weighs against the claim of service connection for a right-side inguinal hernia. In arriving at its conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017). Therefore, service connection for a right-side inguinal hernia is denied. Gilbert, 1 Vet. App. 49. III. Increased Rating for Right Upper Eyelid Laceration Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2017). 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 nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection on July 11, 2006, for a right upper eyelid laceration. The Veteran's right upper eyelid laceration has been evaluated under Diagnostic Code 7804, which governs scar(s), unstable or painful, for the entire appeal period. However, the criteria for rating skin disabilities, including scars, were revised effective October 23, 2008. However, the revised criteria pertain to claims received on or active October 23, 2008. 73 Fed. Reg. 54,710 -12 (Sept. 23, 2008). Pursuant to 38 C.F.R. § 4.118, a veteran who was rated under Diagnostic Codes 7800, 7801, 7802, 7803, 7804, or 7805 before October 23, 2008, can request a review under the new criteria. If such request is made, VA will review the disability to determine if a higher rating is due under the new criteria, but the effective date of any increased award will not be effective before October 23, 2008. 38 C.F.R. § 4.118. The Veteran did not request a review of his scar under the new criteria. However, in the June 2010, the RO employed the current criteria and therefore the Board will as well. As discussed below, neither set of criteria results in a compensable rating. Prior to October 23, 2008, Diagnostic Code 7804 provided a 10 percent rating for superficial scars that are painful on examination. Note (1) to Diagnostic Code 7804 provides that a superficial scar is one not associated with underlying soft tissue damage. Note (2) provides that a 10- percent rating will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable rating. 38 C.F.R. § 4.118. Diagnostic Code 7804 also directs the rater to see 38 C.F.R. § 4.68 (amputation rule). 38 C.F.R. § 4.118 (2008). Under current Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent rating. 38 C.F.R. § 4.118 (2017). Three or four scars that are unstable or painful warrant a 20 percent rating. An unstable scar is one where, for any reason, there is a frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, a 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118 (2017). The Veteran underwent VA examinations in October 2007. The first examiner noted that the Veteran's right upper eyelid laceration was healed. A subsequent VA examination later that month, revealed that upon examination of the Veteran's skin, "there was no scar present." The Veteran in his notice of disagreement (NOD) dated in January 2009 argues that he has frequent pain and tearing of the eye which contributes to the diminished vision and distracting conversation. He presented a duplicative argument in his subsequent July 2010 Form 9. While the Board finds the Veteran competent to report pain, teary eyes and diminished vision, the probative evidence of record does not support a finding that he has a scar from a right upper eyelid laceration. Kahana, 24 Vet. App. at 435. Significantly, both the October 2007 VA examiners have noted that the laceration had healed and there was no scar upon objective examination, nor has the Veteran so contend. Therefore, an increased rating under either the previous or current version of Diagnostic Code 7804 is not warranted. Since the probative evidence of record shows that the Veteran's right upper eyelid does not have a scar from his laceration, an analysis under Diagnostic Codes 7800, 7801, 7802, or 7805 under the previous or new criteria is not for application. Accordingly, the Board finds that a compensable disability rating is not warranted under Diagnostic Code 7804, during the period of the appeal. The medical evidence of record shows that the Veteran's right upper eyelid laceration healed and left no scar. Therefore, the preponderance of the evidence is against this claim, and it must be denied. 38 C.F.R. § 4.3 (2017). The Veteran's right upper eyelid laceration have not met the criteria for a higher rating at any time since the effective date of his award; therefore, the Board may not stage the rating. Fenderson, 12 Vet. App. at 125-26. ORDER Service connection for a right-side inguinal hernia is denied. An initial compensable rating for right upper eyelid laceration (scar) is denied. REMAND VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id., at 83. Here, the Veteran's contends in his Form 9 that he has been diagnosed with chronic arthritis of the spine. Records from March 2010 and August 2012 reflect diagnoses of degenerative changes of the spine and disc space narrowing. He also contends that he incurred and endured back pain from multiple falls during active service, and the pain has continued since. However, the record also shows that the Veteran hurt his back in January 2010 after falling from 11 feet. As the record is not sufficient for the Board to make a determination with regard to this issue, a VA examination is needed with respect to the Veteran's back claim. When VA undertakes to provide a medical examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 311 (2007). The Veteran was afforded a VA examination in October 2007, with regard to his claim for service connection for prostatitis. The examiner found the Veteran's prostate to be normal and non-tender and proffered no diagnosis. However, there is no indication that the examiner considered the Veteran's claims file, specifically, the many documented instances of chronic prostatitis complaints, diagnoses thereof, in service and post-service treatment and diagnosis of benign prostatic hyperplasia (BPH). Therefore, the Board finds the VA examination inadequate, and a remand is needed to address the nature and etiology of the Veteran's prostate condition. The record also shows that the Veteran was scheduled for a November 2017 VA examination which was canceled. There is a discrepancy as to whether it was canceled by the contract VA examiner or the Veteran. If the examination was canceled by the Veteran, the RO should advise the Veteran that failure to report for any future scheduled VA examination without good cause, may have adverse consequences for his claim. VA's duty to assist includes providing a new medical examination when a Veteran asserts or provides evidence that a disability has worsened, and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). Examinations will be requested whenever VA determines, as in this case, that there is a need to determine the current severity of a disability. The Board notes that the Veteran's most recent VA examinations were in October 2007. In his Form 9 dated in July 2010, the Veteran contends that his Hepatitis B is "more acute and debilitating" than before. As for his bilateral hearing loss, he avers that his hearing loss is more serious as a factor in functioning effectively within a working and social environment. As the Veteran has provided specific descriptions of the worsening of his service-connected Hepatitis B and bilateral hearing loss, examinations are necessary to assess his current symptoms so that that the Board may make an informed decision. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician for his back disability. Advise the Veteran that failure to report for a scheduled VA examination without good cause may have adverse consequences for his back claim. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. Although an independent review of the claims file is required, the Board calls the examiner's attention to the following: i. A March 2010 VA treatment record indicating X-ray findings of mild endplate deformity of the superior aspect of L1, after the Veteran fell from 11 feet high. ii. An August 2012 VA treatment record indicating X-ray findings of age-related degenerative changes of the hips and spine. c. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's back disability began during active service; or is related to any incident of service; or, if arthritis is diagnosed, began within one year after discharge from active service. d. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above-requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion, as well as specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 2. Schedule the Veteran for an examination with an appropriate clinician for his prostate condition. Advise the Veteran that failure to report for a scheduled VA examination without good cause may have adverse consequences for his prostate condition claim. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any prostate condition began during active service or is related to an incident of service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above-requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his bilateral hearing loss. Advise the Veteran that failure to report for a scheduled VA examination without good cause may have adverse consequences for his bilateral hearing loss claim. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. 4. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his Hepatitis B. Advise the Veteran that failure to report for a scheduled VA examination without good cause may have adverse consequences for his Hepatitis B claim. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. 5. Review the claims file and ensure that the foregoing development actions have been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any examination report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 6. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. The Veteran 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). ______________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs