Citation Nr: 21070384 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-15 261 DATE: November 23, 2021 ORDER New and material evidence has been submitted sufficient to reopen the previously denied claim for service connection for hearing loss and the application to reopen the claim is granted. An initial rating of 30 percent for painful scars associated with shell fragment wounds of the trunk and extremities is granted, subject to the rules and regulations governing the award of monetary benefits. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a right hip disorder is remanded. Entitlement to an initial disability rating in excess 10 percent prior to July 4, 2012, 30 percent from July 4, 2012 to July 31, 2012, 60 percent from July 31, 2012 to October 7, 2013, and 30 percent from October 7, 2013 (excluding convalescent periods) for coronary artery disease (CAD) is remanded. Entitlement to a disability rating in excess of 10 percent for Muscle Group XIII, shell fragment wound residual, left leg is remanded. Entitlement to a disability rating in excess of 10 percent for Muscle Group XII, shell fragment wound residual, left leg is remanded. Entitlement to a disability rating in excess of 10 percent for Muscle Group XII, shell fragment wound residual, right leg is remanded. Entitlement to a disability rating in excess of 10 percent for Muscle Group XX, shell fragment wound residual, neck is remanded. Entitlement to a disability rating in excess of 10 percent for Muscle Group XIII, shell fragment wound residual, right leg is remanded. Entitlement to a disability rating in excess of 10 percent for Muscle Group IV, shell fragment wound residual, right shoulder is remanded. Entitlement to an initial compensable rating for residual scar, shell fragment wounds of the neck is remanded. Entitlement to a total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a December 1979 rating decision, the Regional Office (RO) denied entitlement to service connection for bilateral hearing loss. The Veteran did not appeal that denial or submit new and material evidence within one year of that decision, and it became final. 2. Evidence received since the December 1979 rating decision relates to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for bilateral hearing loss. 3. The evidence is at least in equipoise as to whether the Veteran's scars of the trunk and extremities have been manifested by 5 or more scars that are painful (but not unstable). CONCLUSIONS OF LAW 1. The December 1979 rating decision that denied service connection for bilateral hearing loss is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. Evidence received since the December 1979 rating decision is new and material and serves to reopen the Veteran's claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for an initial 30 percent rating, but no higher, for painful scars of the trunk and extremities have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.21, 4.118, Diagnostic Code (DC) 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1969 to July 1971. In July 2021, a Board hearing was held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. As an initial matter, the Board notes that, in November 2013, the Regional Office (RO) initially assigned two separate ratings for the Veteran's scar disabilities, a 20 percent rating under DC 7804 (for painful scars) and a noncompensable rating under DC 7805 (for one or more linear scars). As of the date of the decision, the Veteran has been assigned the maximum schedular rating available for his painful (and not unstable) scars associated with his trunk and extremities pursuant to DC 7804. Thus, no further development is required with regard to the scars of the trunk/extremities. Nevertheless, the Board recognizes that the Veteran also has a shell fragment wound scar associated with his neck, which requires additional development. Likewise, the Board has recharacterized the issues above to more accurately reflect the Veteran's disability picture, and the Board will continue the claim for an increased rating for the Veteran's neck scar separately under DC 7805. New and Material Evidence Generally, a claim that has been denied in an unappealed Regional Office (RO) decision or an unappealed Board of Veterans' Appeals (Board) decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board has jurisdictional responsibility to determine on its own whether there is new and material evidence to properly reopen a service-connection claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)); see also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996). The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review on the merits of a previously-denied claim. In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received sufficient to reopen the previously denied claim for service connection for bilateral hearing loss. In a December 1979 rating decision, the RO denied service connection for bilateral hearing loss on the basis that, at the time of separation, the Veteran's hearing did not meet VA's criteria for a hearing loss disability. The Veteran did not appeal that denial or submit new and material evidence within one year of that decision. Therefore, it became final. In October 2012, the Veteran submitted a claim for service connection for bilateral hearing loss. This claim has been construed as a request to reopen the previously denied claims for service connection. The pertinent evidence of record at the time of the December 1979 rating decision included the Veteran's service treatment records (STRs) and September 1979 VA examination. The evidence received since this rating decision includes additional VA treatment records, lay statements, a March 2014 private treatment provider statement, and the July 2021 Board hearing testimony. This evidence is new because it was not previously associated with the claims file. This evidence also relates to unestablished facts necessary to substantiate the Veteran's claim for service connection for bilateral hearing loss. Accordingly, this claim is reopened Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit-of-the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to an initial rating in excess of 20 percent for painful scars. The Veteran's painful scars are rated under DC 7804. Under DC 7804, a 10 percent rating is assigned for scars that are unstable or painful. A 20 percent is assigned for three or more scars that are unstable or painful and a 30 percent rating is assigned for five or more scars that are unstable or painful. 38 C.F.R. § 4.118. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note (1). If one or more scars are both painful and unstable 10 percent is added to the evaluation that is based on the total number of unstable/painful scars. Id. at Note (2). In October 2013, the Veteran underwent a VA examination to evaluate any scars associated with his shell fragment wounds. The examiner diagnosed the Veteran with multiple scars from shell fragment wounds. More specifically, the examiner found the Veteran had 5 or more scars of the trunk/extremities that were painful. The examiner found that the Veteran did not have any scars or disfigurement of the head, face, or neck. The examiner also found that none of the Veteran's scars were unstable. The scars were documented as follows: 1 scar on the left upper extremity (5 cm), 1 scar on the right upper extremity (3 cm), 1 scar on the right lower extremity (6 cm), 2 scars on the left lower extremity (3 to 4 cm). The examiner also documented that the Veteran's scars did not cause limitation of motion and did not affect his ability to work. In July 2014, the Veteran's muscle injuries from his shell fragment wounds were evaluated by VA. It was noted that the veteran had scars associated with all of his muscle injury. [Parenthetically, the Board notes that, contrary to the October 2013 VA examination report, this evidence indicates that the Veteran has a scar associated with his service-connected injury to Muscle Group XX of the neck. As such, the Veteran's neck scar will be addressed in the remand section below.] In consideration of the foregoing evidence and after affording the Veteran the benefit of the doubt, the Board finds the evidence is at least in equipoise as to whether the criteria for a higher initial 30 percent rating are met. In pertinent part, the record reflects that the Veteran has 5 or more scars that are painful and not unstable (i.e, the criteria for a 30 percent rating). See 38 C.F.R. § 4.118, DC 7804. Therefore, an initial 30 percent rating for painful scars is warranted. A rating greater than 30 percent for the Veteran's painful scars is not warranted for any period on appeal. The assigned 30 percent disability rating is the highest rating available under DC 7804, given the absence of any lay or medical evidence that any of the scars are unstable. The Board emphasizes that neither the medical nor the lay evidence reflects that Veteran's scars more nearly approximated the criteria for any higher or separate rating under any of the potentially applicable diagnostic codes. In pertinent part, DCs 7800 and 7801 are the only scar diagnostic codes that afford ratings higher than 30 percent. DC 7800, however, applies only to scars of the head, face, or neck and, as indicated, the Veteran's painful scars are located on his trunk and extremities. Moreover, the issue of whether a compensable rating is warranted for the Veteran's scar of the neck is being remanded herein. Under DC 7801, a higher 40 percent rating may be assigned for scars of 144 square inches or greater. This has not been shown. As such, higher/separate ratings are not warranted under any other diagnostic code. The Board also obvserves that, under these circumstances, any additional development as to this issue, to include obtaining a new VA examination, would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). In that regard, as of the date of this decision, the Veteran is in receipt of a 30 percent disability rating which is the highest schedular rating available for painful scars and not unstable scars under DC 7804. Furthermore, while the record reflects that the most recent VA examination regarding the Veteran's right shoulder disorder was from July 2014, the Veteran has not asserted and the evidence does not reflect that his scars have worsened, i.e., caused limitation of function or were unstable. The Board emphasizes that the passage of time alone, without an allegation of worsening since the last VA examination, does not warrant a new examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Accordingly, the Board finds that the current evidence of record is adequate for adjudication purposes. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss, tinnitus, and right hip disorder are remanded. The Veteran has provided current reports of hearing loss and tinnitus. See July 2021 Board Hearing Transcript. The Veteran also has a diagnosis for sensorineural hearing loss and a right hip disorder. See April 2014 Third Party Correspondence and March 2013 VA Treatment records. The record reflects that the Veteran had in-service exposure to hazardous noise by virtue of his duty military occupational specialty (MOS) as an infantryman and receipt of the Combat Infantryman Badge as reflected in his DD Form 214. Moreover, the record raises the question of whether the Veteran's right hip disorder may be related to his service, to include his service-connected lower extremity muscle injuries. Such evidence is sufficient to meet the threshold requirements for affording the Veteran VA examinations and medical opinions to assess the nature and etiology of his bilateral hearing loss, tinnitus, and right hip disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the Board finds that remand is warranted for these claims consistent with the directives herein. The Board acknowledges that while the Veteran provided a July 2021 positive private nexus opinion that indicates the Veteran's hips are due to his service in the Republic of Vietnam, this opinion is conclusory and is not supported by a rationale or explanation. Accordingly, it is not sufficient to support a grant of service connection for the Veteran's right hip disorder. The Board also notes that the Veteran testified that he had more recent treatment at VA, to include audiometric testing conducted in 2020. Significantly, however, no VA treatment records have been associated with the file since 2017. Accordingly, additional development is requested to obtain updated VA treatment records, to include the Veteran's 2020 VA audiometric test. 2. Entitlement to an initial increased disability rating for CAD is remanded. The Veteran was last afforded a VA examination to evaluate his CAD in July 2014. Subsequent to this evaluation, the Veteran reported that his symptoms were sometimes worse, and he was not able to stand or sit for very long. See July 2021 Board Hearing Transcript. The Veteran's September 2019 private treatment records also indicate that he has extreme fatigue and shortness of breath with exertion. Such evidence suggests a worsening of his symptomatology since his last VA examination. Accordingly, VA's duty to assist necessitates that this claim be remanded to schedule a new VA examination. The Board also notes that the Veteran appears to have been recommended for a stress test in October 2019 and he testified in July 2021 that his most recent stress test was conducted 2 years earlier. Accordingly, the additional development should be conducted to obtain the Veteran's more recent private cardiology treatment records. 3. Entitlement to higher disability ratings for shell fragment wound residuals of Muscle Group XIII of the left leg, Muscle Group XII of the left leg, Muscle Group XII of the right leg, Muscle Group XIII of the right leg, Muscle Group XX of the neck, and Muscle Group IV of the right shoulder are remanded. The Veteran was last afforded a VA examination to evaluate his various service-connected muscle injuries in July 2014. Subsequent to this evaluation, the evidence of record suggests that these disabilities have worsened. Notably, the Veteran's private treatment records indicate that these disabilities have resulted in chronic pain, neck stiffness, and right shoulder decreased range of motion and tenderness. See June 2017 Lakelands Chiropractic Treatment records and January 2018 and June 2019 AnMed Health Honea Path Family Medicine. Such evidence suggests a worsening of his symptomatology since his last VA examination. Accordingly, VA's duty to assist necessitates that these claims be remanded to schedule a new VA examination. 4. Entitlement to an initial compensable rating for residual scar, shell fragment wound of the neck is remanded. The record reflects the Veteran has a residual scar from a shell fragment wound of the neck. Significantly, however, the VA examinations of record do not address any of the eight characteristics of disfigurement for purposes of evaluation under 38 C.F.R. § 4.118. Therefore, remand is necessary for a VA examination to properly evaluate the Veteran's neck scar. 5. Entitlement a TDIU is remanded. Consideration of entitlement to a TDIU is dependent upon the impact of the Veteran's service-connected disabilities on his ability to obtain or retain substantially gainful employment. Accordingly, the matter of a TDIU is inextricably intertwined with the Veteran's claims remanded herein. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is, thus, also required. The matters are REMANDED for the following actions: 1. With the Veteran's assistance, obtain outstanding VA and private treatment records, to specifically include the Veteran's 2020 VA audiometric test and private cardiology treatment. All reasonable attempts to obtain such records should be made and documented. If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Following the record development above, obtain a VA examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran's bilateral hearing loss and tinnitus. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. a) The examiner should, to the extent possible, provide diagnoses for the Veteran's alleged bilateral hearing loss and tinnitus. In rendering such diagnoses, the examiner must consider and discuss the Veteran's April 2014 private audiological evaluation. b) The examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed hearing loss and/or tinnitus had its onset in service, within one year of separation from service, or is otherwise related to his active duty service. In rendering the above opinion, the examiner must specifically consider and discuss the audiometric shifts between the Veteran's November 1968 enlistment examination and his March 1971 separation examination, the December 1993 audiogram, and the Veteran's STRs showing hearing problems in June 1970. It is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, a reason should be provided for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Following the record development above, obtain a VA examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran's right hip disorder. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. a) The examiner should provide a diagnosis for any current right hip disorder. b) The examiner should opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's right hip disorder had its onset in service, within one year of service, or is otherwise related to, his active duty service. c) If the answer to paragraph (b) is negative, the examiner should opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's right hip disorder was caused or aggravated by his service-connected lower extremity muscle disabilities. Aggravation in this context is defined as any increase in disability. In rendering the above opinion, the examiner should consider the Veteran's July 2021 testimony that his hip disorder progressed from his legs. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Following the records development above, obtain a VA examination from an appropriate examiner to determine the current severity of the Veteran's CAD. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. The examiner is asked to fully describe the current severity of the disability, including all objective manifestations. a) The examiner should be instructed that the rating criteria requires a finding as to the threshold workload rated in METs that results in dyspnea, fatigue, angina, dizziness, or syncope. b) If a METs exercise test is not performed, the examiner must provide an explanation as to why such a test is not warranted either because of a medical contraindication, the Veteran's left ventricular ejection fraction was measured at 50 percent or less, the Veteran has chronic congestive heart failure or had more than one episode of congestive heart failure within the past year, or a 100 percent evaluation can be assigned on another basis. c) If a METs exercise test cannot be completed for medical reasons, the examiner must provide an estimated activity level expressed in METs which must be supported by scientific examples such as slow stair climbing or shoveling snow. d) The examiner should also provide a percentage figure for left ventricular ejection fraction. The examiner should comment on the presence or absence of the following conditions: congestive heart failure (acute or chronic), and cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X- ray. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 5. Following the records development above, obtain a VA examination from an appropriate examiner to determine the current severity of the Veteran's service-connected muscle injuries, to include Muscle Group XIII of the left leg, Muscle Group XII of the left leg, Muscle Group XII of the right leg, Muscle Group XIII of the right leg, Muscle Group XX of the neck, and Muscle Group IV of the right shoulder. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. The examiner is asked to fully describe the current severity of the disability, including all objective manifestations. For each muscle injury, if feasible, the examiner should characterize the overall impairment as slight, moderate, moderately severe, or severe. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 6. Following the records development above, obtain a VA examination from an appropriate examiner to determine the current severity of the Veteran's residual scar, shell fragment wound of the neck. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. The examiner is asked to fully describe the current severity of the disability, including all objective manifestations. The examiner must discuss the presence or absence of the eight characteristics of disfigurement found in DC 7800: (1) whether the Veteran has a scar five or more inches (13 or more cm.) in length; (2) whether the Veteran has a scar at least one-quarter inch wide at the widest part; (3) surface or 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; (6) skin texture abnormal in an area exceeding six square inches; (7) underlying soft tissue missing in an area exceeding six square inches; (8) skin indurated and inflexible in an area exceeding six square inches. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. (Continued on the next page) A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.