Citation Nr: 21072170 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-37 559 DATE: December 2, 2021 ORDER Service connection for left ear hearing loss is denied. An initial compensable rating prior to January 21, 2021, and in excess of 20 percent from January 21, 2021, for left shoulder scars is denied. A rating in excess of 20 percent for left shoulder strain and degenerative joint disease, status post-operative (previously dislocation) is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had left ear hearing loss at any time during or approximate to the pendency of the claim. 2. Prior to January 21, 2021, the Veteran's four service-connected left shoulder scars measured less than 39 square centimeters, were not painful and showed no signs of skin breakdown, inflammation, edema, keloid formation, or other disabling effects. 3. Beginning January 21, 2021, the Veteran complained his four service-connected left shoulder scars were painful; these scars cause no limitation of function. 4. For the entire period of the appeal, the Veteran's service-connected left shoulder strain has been manifested by pain with limitation of motion but not limited to 25 degrees from the side. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1110, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for an initial compensable rating prior to January 21, 2021, and a rating in excess of 20 percent beginning January 21, 2021, for left shoulder scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.31, 4.118, Diagnostic Codes 7804, 7805. 3. The criteria for a rating in excess of 20 percent for left shoulder strain and degenerative joint disease, status post-operative (previously dislocation) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from May 1997 to February 2007. These matters were previously remanded by the Board of Veterans' Appeals (Board) in September 2020 for further development. The Veteran submitted a December 2019 statement indicating that he wished to withdraw his hearing request prior to the scheduled January 2020 Board hearing. As such, the Board deemed his request for a hearing withdrawn. See September 2020 Board decision; 38 C.F.R. § 20.704(e). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for direct service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, including organic diseases of the nervous system, will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). When a chronic condition, such as sensorineural hearing loss, is present, a claimant may establish the second and third elements of service connection by demonstrating continuity of symptomatology. 38 C.F.R. § 3.303 (b). Sensorineural hearing loss may also be presumptively service connected if it becomes manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307, 3.309; Walker, 708 F.3d at 1338. The absence of evidence of hearing loss in service is not a bar to service connection for hearing loss. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability exists is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Without a current diagnosis, there may be no service connection for the claimed condition. 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 claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The question for the Board is whether the Veteran has a current left ear hearing loss disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Regarding the first element, the Board concludes that the Veteran does not have a current diagnosis of left ear hearing loss and has not had one at any time during the pendency of the claim or recent to the filing of the claim. The reported pure tone thresholds and speech recognition scores made on the VA audiometric examinations in July 2015 and January 2021 did not meet the regulatory requirements, and the Veteran has not submitted any competent evidence to otherwise establish that he has a left ear hearing disability by VA standards. See 38 C.F.R. § 3.385. The claim for left ear hearing loss is denied on this basis alone. Id. ; see also Brammer v. Derwinski, 3 Vet. App. 223 (1992). Consideration has been given to the Veteran's own statements that he has left ear hearing loss disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the disability falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). A hearing loss disability, as defined for VA purposes, is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding their etiology, as the evidence shows that medical testing and other specific findings are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That is, although the Board readily acknowledges that Veteran is competent to report symptoms of diminished hearing, there is no indication that the Veteran possesses the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, this lay evidence does not constitute competent or credible evidence and lacks probative value. The Board concludes that the weight of the competent and credible evidence establishes that the Veteran has not been shown to have left ear hearing loss disability. See Brammer v. Derwinski, supra. Thus, the Board must conclude that the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, supra. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 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 Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Left Shoulder Scars The Veteran was granted service connection for his left shoulder surgical scars (secondary to service-connected left shoulder strain) in an August 2015 rating decision. An initial noncompensable rating (zero percent) was assigned effective April 17, 2015. And the Veteran appealed the rating assigned. An August 2021 rating decision increased the rating from 0 to 20 percent effective January 21, 2021, and the Veteran continued his appeal. Pursuant to Diagnostic Code 7804, which applies to unstable or painful scars, a 10 percent rating is warranted for one or two scars that are unstable or painful; a 20 percent rating is warranted for three or four scars that are unstable or painful; and a 30 percent rating is warranted 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 unstable and painful, VA is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. at Note 2. Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are deep and nonlinear. Scars that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) are rated 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) are rated 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq. cm.) are rated 40 percent disabling. Note (1) to Diagnostic Code 7801 provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are superficial and nonlinear. Superficial scars in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Note (1) to Diagnostic Code 7802 provides that a superficial scar is one not associated with underlying soft tissue damage. Id. According to Diagnostic Code 7805, which applies to other scars (including linear scars) and other effects of scars, VA is to evaluate any disabling effect(s) not considered in a rating provided under such Diagnostic Codes under an appropriate diagnostic code. 38 C.F.R. § 4.118. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Veteran underwent left shoulder surgery following service in 2004. He submitted a claim of service connection for surgical scars in 2015. A June 2015 VA Shoulder and Arm Conditions Disability Benefits Questionnaire (DBQ) notes the presence of four surgical scars on the left shoulder. These measured: 12 cm by 1 cm; 1 cm by 0.75 cm; 1.5 cm by 1 cm; and 1 cm by 0.25 cm. The examiner noted these scars were not painful or unstable. A January 2021 VA Scars/Disfigurement DBQ identified five separate scars, but then clarified in a July 2021 addendum that only four of these scars were the service-connected surgical scars. The scars measured 27 square centimeters in total. The Veteran complained of pain and tenderness to palpation. The examiner noted that the scars do not have any underlying tissue damage. There is no functional impact due to the scars. None of the scars are to the head, face, or neck, nor are they located in areas of generally exposed skin. The examiner did not note frequent loss of covering of skin over the scars. For the initial rating period prior to January 21, 2021, the Board finds the Veteran's service-connected left shoulder scars do not warrant a compensable disability rating under Diagnostic Codes 7801-7805. As noted above, the evidence of record clearly does not reveal scars other than the head, face, or neck that are deep or cause limited motion in an area exceeding 6 square inches or 39 sq. cm. (Diagnostic Code 7801); scars other than the head, face, or neck that are superficial, do not cause limited motion, and in an area exceeding 144 square inches or 929 cm. or greater (Diagnostic Code 7802); superficial unstable scars with frequent loss of skin covering over the scar (Diagnostic Code 7803); nor painful or unstable scars (Diagnostic Code 7804). Again, the 2015 VA examination report noted that the scars were essentially asymptomatic and not painful or unstable. For the period beginning January 21, 2021, the Board finds that a rating in excess of 20 percent is not warranted. A higher rating of 30 percent is not warranted because the Veteran does not have five or more scars that are unstable or painful. The scars are not deep, nonlinear, or associated with functional loss (see the January 2021 VA examination report), and no other diagnostic code pertaining to scars could provide a higher disability rating. Based on the preponderance of the probative evidence of record, higher staged ratings are not warranted for the Veteran's left shoulder scars. The benefit of the doubt rule does not apply in this case. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b). Therefore, the claim is denied. 2. Left Shoulder Strain and Degenerative Joint Disease The Veteran was awarded service connection and a 20 percent rating for his left (minor) shoulder strain and degenerative joint disease in a November 2008 rating decision. He submitted the current claim for increased rating in April 2015. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. It is important that when evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40 ; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. It is the intent of the schedule to recognize painful motion with joint or periarticular pathology as productive of disability. It is also the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The rating criteria for evaluating certain musculoskeletal disabilities under 38 C.F.R. § 4.71a , including Diagnostic Code 5201, were amended during the pendency of the appeal effective February 7, 2021. Prior to the regulatory change, Diagnostic Code 5201 assigned a 20 percent rating for limitation of motion of the minor arm at shoulder level and midway between side and shoulder level. To warrant a 30 percent rating, the evidence needed to demonstrate limitation of motion of the minor arm to 25 degrees from the side. 38 C.F.R. § 4.71a , Diagnostic Code 5201 (2020). The regulatory change amended Diagnostic Code 5201 only to the extent that it defined "shoulder level" as flexion and/or abduction limited to 90 degrees, "midway between the side and shoulder level" as flexion and/or abduction limited to 45 degrees, and the limitation of motion to 25 degrees from the side is based on flexion/abduction. 85 Fed. Reg. 76453 (Nov. 30, 2020). The Veteran is right-hand dominant, and the evaluations above are assigned based on the minor extremity. Regulations define the normal range of motion for the shoulder as forward flexion from 0 to 180 degrees, abduction from 0 to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. 38 C.F.R. § 4.71, Plate I. A June 2015 VA Shoulder and Arm Conditions Disability Benefits Questionnaire (DBQ) notes the Veteran reported more pain when raising his left arm. He reported his shoulder popped out of place with certain movements. He also reported flareups of pain that lasted two to three days. He no longer played sports and avoided activities that required lifting his arm higher than his shoulder or lifting more than 20 pounds. On examination, range of motion (with pain) was flexion to 125 degrees, abduction to 90 degrees, external rotation to 45 degrees, and internal rotation to 45 degrees. There was no pain with weight bearing. There was no crepitus. There was additional loss of range of motion on repetitive use testing: flexion to 120 degrees, abduction to 85 degrees, external rotation to 35 degrees, and internal rotation to 35 degrees. The examiner opined that loss of motion would be the same with repeated use over a period of time and during flareups. There was no evidence of decreased muscle strength, muscle atrophy, or ankylosis. There was no impairment of the Veteran's humerus, to include flail shoulder, false flail shoulder, or fibrous union. A January 2021 VA Shoulder and Arm Conditions DBQ notes the Veteran is right hand dominant. The Veteran reported constant aching in his arm that impacted overhead use. He reported daily flareups pf pain with use that lasted for hours and were alleviated by rest and medication. On examination, both passive and active left shoulder range of motion was limited to 100 degrees of flexion, 100 degrees of abduction, 60 degrees of internal rotation and 60 degrees external rotation. The examiner noted pain on flexion, abduction, internal and external rotation. It was noted on weight-bearing, active motion, passive motion, and caused functional loss. The examiner noted crepitus but no objective evidence of localized tenderness or pain on palpation of the left shoulder. Repetitive use testing of at least three repetitions resulted in further reduction in range of motion: flexion to 90 degrees, abduction to 90 degrees, internal rotation to 50 degrees and external rotation to 50 degrees. The examiner noted pain on flexion, abduction, internal and external rotation. It was noted on weight-bearing, active motion, passive motion, and caused functional loss. The examination was not conducted immediately after repetitive use over time nor was it during a flare-up. The examiner estimated range of motion for repeated use over time as well as flare-ups as being the same range of motion as for repeated use testing. There was no evidence of decreased muscle strength, muscle atrophy, or ankylosis. There was no impairment of the Veteran's humerus, to include flail shoulder, false flail shoulder, or fibrous union. The examiner did not find any evidence of any clavicle or scapula conditions that affect range of motion of the shoulder (glenohumeral joint). The examiner opined that due to the Veteran's shoulder or conditions the functional impairment of an extremity is not such that no effective functions remain other than that which would be equally well-served by an amputation with prosthesis. The examiner stated the Veteran's left should strain and degenerative joint disease is a change and a progression of the previous diagnosis of shoulder impingement syndrome. No other pertinent physical findings, complications, conditions, signs, or symptoms were noted. Treatment records do not reflect symptomatology worse than on examination. The evidence indicates findings of arm motion limited, at worst, at shoulder level with left shoulder flexion to 90 degrees. The evaluation of 20 percent more closely approximates the Veteran's symptomatology than a rating of 30 percent. The record does not show range of motion limited to 25 degrees from the side. Accordingly, a rating more than 20 percent disabling is not warranted. The Board acknowledges that VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59 ; Correia v. McDonald, 28 Vet. App. 158 (2016). The Board has further considered the Court's holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), addressing 38 C.F.R. § 4.40. The Board has carefully considered the VA examinations of record and whether they complied with Correia and Sharp, and the Board finds that the most recent 2021 VA examination complied with these requirements. To the extent that the previous examination findings of record relative to the left shoulder are not completely in compliance with Correia and/or Sharp, the Board finds that remand for additional examination/opinion would serve no useful purpose. This is because any retrospective opinion would merely impose an additional burden on VA with no benefit flowing to the Veteran, as VA would be asking an examiner to speculate as to the pre-2021 ranges of motion. The Board has also considered other Diagnostic Codes and find none provide a rating higher than 20 percent. Diagnostic Code 5200 is not applicable as there is no evidence of ankylosis of the left shoulder. Diagnostic Code 5202 is not applicable because there is no evidence of impairment of the humerus. Based on the preponderance of the probative evidence of record, a rating in excess of 20 percent is not warranted for the Veteran's left shoulder strain and degenerative joint disease, status post-operative (previously dislocation) at any point during the appeal period. The benefit of the doubt rule does not apply in this case. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b). Therefore, the claim is denied. K. R. FLETCHER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Boushehri, Darjush M. 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.