Citation Nr: 21074057 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-56 132 DATE: December 14, 2021 ORDER Entitlement to a 10 percent rating for status post lipoma resection, upper thoracic spine scar is granted. Entitlement to a compensable rating for bilateral hearing loss prior to October 11, 2019, and a rating in excess of 10 percent, thereafter, is denied. Entitlement to a rating in excess of 10 percent for right lateral epicondylitis is denied. FINDINGS OF FACT 1. The competent and probative evidence is at least in equipoise as to whether residual scarring of the upper thoracic spine associated with a lipoma resection is painful. 2. The symptoms associated with the Veteran's service-connected bilateral hearing loss are contemplated by the current schedular ratings available for the noncompensable rating for hearing loss prior to October 11, 2019, and to the rating of 10 percent thereafter and considered for the average impairment of earning capacity due to hearing loss. 3. Throughout the appeal period, the Veteran's right (dominant) elbow lateral epicondylitis was not manifested by flexion limited to 70 degrees or less, extension to 75 degrees or more, limitation of pronation, radius impairment, ulna impairment, impairment of the flail joint, or favorable or unfavorable ankylosis of the elbow. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating of 10 percent for residual scarring of the upper thoracic spine associated with a lipoma resection have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118 Diagnostic Codes (DC) 7804, 7805. 2. The criteria for entitlement to an initial compensable rating for bilateral hearing loss prior to October 11, 2019, and to a rating in excess of 10 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § § 3.102, 3.321, 3.385, 4.1, 4.7, 4.85, 4.86. 3. The criteria for a rating in excess of 10 percent for right elbow lateral epicondylitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5024, 5206. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Marine Corps from October 1971 to April 1979 and the Air Force from June 1993 to January 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky. In February 2019 and July 2021, the case came before the Board. In February 2019 and July 2021, the Board remanded the claims for additional development. In a July 2020 rating decision, the RO granted an increased rating to 10 percent for bilateral hearing loss, effective October 11, 2019, the date of the most recent VA examination. As this is not considered a full grant of benefits, this matter is still before the Board. In July 2021, the Board remanded the Veteran's claims for entitlement to increased ratings for bilateral hearing loss, right lateral epicondylitis, and status post lipoma resection and service connection for a cervical spine disability and a headache disability. In August 2021, the RO granted entitlement to service connection for a cervical spine disability and a headache disability. Thus, these issues are no longer before the Board. As these claims for increased ratings were filed on October 31, 2012, the Board will review evidence filed within the one-year period prior to that date to determine an increase in in disability is factually ascertainable in accordance with 38 C.F.R. § 3.400(o)(2). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a DC. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to a 10 percent rating for status post lipoma resection, upper thoracic spine scar The upper thoracic spine residual surgical scar is rated as noncompensable pursuant to 38 C.F.R. § 4.71a, DC 7805. During the pendency of this appeal, the Schedule for Rating Disabilities that addresses 38 C.F.R. § 4.118, DCs 7801, 7802, 7805, and 7806 was amended, and this went into effect on August 13, 2018. 83 Fed. Reg. 32592 (July 13, 2018). However, with both the former and new rating criteria, other scars and other effects of scars evaluated under DCs 7800, 7801, 7802, and 7804 are rated under 38 C.F.R. § 4.118, DC 7805. DC 7805 under both the old and new rating criteria provides a rating for disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04. 38 C.F.R. § 4.118. The Board notes that DC 7800 pertains to disfigurement of the head, face, or neck, and thus is not for application here. The Board also acknowledges that the July 13, 2018 amendments to the Schedule for Rating Disabilities revised the portion of the schedule addressing deep scars under DC 7801 and superficial scars under DC 7802. 83 Fed. Reg. 32592 (July 13, 2018). In publishing this revised rule VA stated that the amendment applied to claims pending prior to the effective date, such that both the old and the new rating criteria would be considered and whatever criteria was more favorable to the Veteran would be applied. However, under both the old and the new regulations, DC 7801 and 7802 are not applicable as they pertain to nonlinear scars and scars associated with underlying soft tissue damage, neither of which is reflected in the available medical evidence. Id. Finally, under DC 7804, scar(s), unstable or painful, warrant a rating of 10 percent for one or two scars that are unstable or painful; 20 percent for three or four scars that are unstable or painful; and a maximum rating of 30 percent for five or more scars that are unstable or painful. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 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. Note (3) provides that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under this DC, when applicable. See 38 C.F.R. § 4.118, DC 7804. On VA examination in August 2013, the examiner noted a linear scar measuring 5 cm in length on the upper mid back. On VA examination in November 2019, the examiner noted a scar on the upper back that was 5 cm in length and 1 cm in width that was painful but not unstable. The scar was not depressed or raised. The scar did not result in limitation of motion. There is no indication of any disabling effects not considered by DC 7800, 7801, 7802, 7805 for the scars. The Veteran has not reported any such effects, and VA medical examinations do not indicate that there is any limitation of function resulting from the residual surgical scarring. Thus, compensable ratings pursuant to DC 7805 are also not warranted. See 38 C.F.R. §4.118, DC 7805. As noted, the VA examiner in November 2019 noted the scar on the upper mid thoracic region was painful, and the Veteran has reported vague complaints of pain associated with the scar. The Veteran is competent to report that his scars are painful as this requires only personal knowledge that comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Therefore, the Board finds that the competent and probative evidence is at the very least in equipoise as to whether residual scarring of the status post lipoma resection, upper thoracic spine scar is painful. Accordingly, a rating of 10 percent, but no higher, is warranted for one painful scar of the upper thoracic spine. See 38 C.F.R. § 4.118, DC 7804. A higher rating is not warranted under DC 7804 because the weight of the competent and probative evidence is against finding that the scar is unstable. Resolving all reasonable doubt in the Veteran's favor, a separate 10 percent disability rating for painful scarring of the upper thoracic spine is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to a compensable rating for bilateral hearing loss prior to October 11, 2019, and a rating in excess of 10 percent, thereafter, The Veteran contends that his bilateral hearing loss should be rated at a compensable level from October 2012, the date of the Veteran's claim for an increased rating for this benefit. He also contends that his hearing loss should be given a rating in excess of 10 percent after October 11, 2019. The law and regulations that address hearing loss are as follows: Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 1000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment uses controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA, in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional patter of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. A review of the evidence of record shows that the Veteran has been examined on multiple occasions: In January 2013, the Veteran underwent a private audiological examination. The Veteran had a general complaint of ear trouble. The examination, as best as could be determined, revealed the following pure tone thresholds, in decibels: HERTZ Left Ear Right Ear 1000 10 25 2000 30 30 3000 65 65 4000 85 60 Average 48 45 The exam did not include a Maryland CNC speech recognition test required for rating, rather, the exam included an unspecified word recognition list with 90% recognition, bilaterally. The examiner did not certify as to the inappropriateness of the use of the speech discrimination test where use of Table VIA would be appropriate. 38 C.F.R. §§ 4.85, 4.86(a). There is no exceptional pattern of hearing loss shown. To the extent Table VII could determine hearing impairment in this case were this an acceptable examination for compensation purposes, the audiometry test results to Level II hearing, bilaterally. Id. Thus, when applying Table VII, DC 6100, level II hearing, bilaterally, equates to a noncompensable disability evaluation. However, this examination is not valid to determine compensation for the reasons mentioned above. 38 C.F.R. § 4.85. In August 2013, the Veteran was provided a VA audiological examination. The examination revealed the following pure tone thresholds, in decibels: HERTZ Left Ear Right Ear 1000 40 35 2000 70 55 3000 80 65 4000 90 70 Average 70 56 Using the Maryland CNC test, the speech recognition score was 88 percent for the right ear and 84 percent for the left ear. There is no exceptional pattern of hearing loss shown. Using speech discrimination and pure tone threshold averages, these audiometry test results equate to Level II in the right ear and Level III in the left ear using Table VI. 38 C.F.R. § 4.85. Thus, applying the percentage ratings for hearing impairment found in Table VII, Level III hearing in the left ear and Level II hearing in the right ear results in a noncompensable disability rating. Id. In October 2019, the Veteran was provided a VA audiological examination. The Veteran complained of difficulty hearing, others needing to repeat themselves, needing to be face to face, and difficulty hearing in noisy environments. The examination revealed the following pure tone thresholds, in decibels: HERTZ Left Ear Right Ear 1000 45 45 2000 60 60 3000 80 80 4000 85 85 Average 68 68 Using the Maryland CNC test, the speech recognition score was 76 percent for the right ear and 82 percent for the left ear. There is no exceptional pattern of hearing loss shown. Using speech discrimination and pure tone threshold averages, these audiometry test results equate to Level IV in the right ear and Level IV in the left ear using Table VI. 38 C.F.R. § 4.85. Thus, applying the percentage ratings for hearing impairment found in Table VII, Level IV hearing in the left ear and Level IV hearing in the right ear results in a 10 percent disability rating. Id. Given the above, a compensable rating from October 31, 2012, to October 11, 2019, and a rating in excess of 10 percent from October 11, 2019, to the present is denied. The Board also notes that none of the VA examination findings reflect an exceptional pattern of hearing loss, nor did the examiners that provided puretone threshold averages indicate that speech recognition scores were unreliable; therefore, Table VIA is not for application. The Board has also considered the Veteran's lay statements and testimony, in which he contends that his hearing loss has worsened, as well as that his hearing loss affects his daily life. As the assignment of a disability rating for hearing impairment is derived by mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to be assigned. As such, the VA examinations conducted during the appeal period are the most persuasive and probative evidence as to the severity of the Veteran's current level of hearing impairment. Here, the findings on official audiometry fall squarely within the parameters of the rating criteria. Finally, to address the Veteran's functional disability caused by his bilateral hearing loss. In Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017), it was noted that difficulty hearing is precisely the effect that VA's audiometric tests are designed to measure. Thus, those effects are contemplated by the schedular rating criteria. No other symptoms have been identified by the Veteran in this case that are not contemplated by DC 6100 that may warrant a separate schedular rating or raise a secondary claim. See Morgan v. Wilkie, 31 Vet. App. 162 (2019). Along these lines, there is no evidence of dizziness, vertigo, ear pain, or any other symptoms in that class of functional effects considered to be existing outside DC 6100 but within the rating schedule that are related to the Veteran's hearing loss. 3. Entitlement to a rating in excess of 10 percent for right lateral epicondylitis The Veteran is currently rated at 10 percent disability for right elbow epicondylitis under DC 5206-5024 by analogy to limitation of flexion of the forearm. Disabilities of the elbow and forearm are rated, generally, under Codes 5205 to 5213. The Veteran's right elbow is his dominant arm. Therefore, the Board will discuss the ratings pertaining to the "major" elbow and forearm. 38 C.F.R. § 4.71a. DC 5205, for the non-dominant arm, allows for a 30 percent rating for favorable ankylosis of the elbow at an angle between 90 and 70 degrees. 40 percent is warranted for indeterminate ankylosis of the elbow at an angle of more than 90 degrees, or between 70 and 50 degrees. A maximum of 50 percent is warranted for unfavorable ankylosis of the elbow at an angle of less than 50 degrees or with complete loss of supination or pronation. The Board acknowledges that the criteria for musculoskeletal disabilities in 38 C.F.R. § 4.71a were amended, effective February 7, 2021, and the "new" schedular criteria are applicable as of that date. 85 Fed. Reg. 76453 (Nov. 30, 2020). However, none of the diagnostic codes pertaining to the elbow and forearm were amended. Additionally, the diagnostic codes pertaining to the elbow and forearm make a distinction between the dominant and nondominant arm. In this case, the Veteran is right-handed, making the left arm the nondominant arm. Under DC 5206, limitation of flexion warrants a noncompensable evaluation when limited to 110 degrees, a 10 percent evaluation when limited to 100 degrees, a 20 percent evaluation when limited to 90 degrees, a 20 percent evaluation when limited to 70 degrees, a 30 percent evaluation when limited to 55 degrees, and a 40 percent evaluation when limited to 45 degrees. 38 C.F.R. § 4.71a. Under DC 5207, limitation of extension warrants a 10 percent evaluation when limited to either 45 or 60 degrees, a 20 percent evaluation when limited to 75 degrees, a 20 percent evaluation when limited to 90 degrees, a 30 percent evaluation when limited to 100 degrees, a 40 percent evaluation when limited to 110 degrees. Notably, normal range of motion of the elbow is from 0 degrees extension to 145 degrees flexion. Normal forearm pronation is from 0 to 80 degrees, and normal supination is from 0 to 85 degrees. 38 C.F.R. § 4.71, Plate I. Under DC 5208, flexion of the forearm limited to 100 degrees and extension of the forearm limited to 45 degrees warrants a 20 percent rating. DC 5209 assigns a 20 percent rating for joint fracture, with marked cubitus varus or cubitus valgus deformity or with ununited fracture of head of radius. DCs 5210 and 5211 assign evaluations based on nonunion and impairment of the ulna. DC 5212 assigns evaluations based on impairment of the radius. Under DC 5213, a 10 percent rating is warranted for limitation of supination to 30 degrees or less; a 20 percent rating for limitation of pronation with motion lost beyond last quarter of arc, the hand does not approach full pronation or motion lost beyond middle of arc; and a 20 percent rating for the hand fixed near the middle of the arc or moderate pronation or the hand fixed in full pronation; and a 30 percent rating for the hand fixed in supination or hyperpronation. The Veteran underwent a VA examination for his right elbow lateral epicondylitis in August 2013. The Veteran reported occasional pain in the lateral aspect of the elbow. He denied flare-ups. On range of motion (ROM) testing, the Veteran's flexion and extension were from 0 to 145 degrees with no objective evidence of pain. There was no additional loss of ROM on repetitive use and no functional loss or impairment. There was pain on palpation of the joint. There was no objective evidence of crepitus. All muscle strength testing was normal and there was no evidence of muscle atrophy. Pain, weakness, fatigability, or incoordination were not found to significantly limit functional ability with repeated use over a period of time. The examiner indicated that the Veteran's right elbow lateral epicondylitis did not affect his ability to perform any type of occupational task. When this matter was before the Board in February 2019, it was remanded to afford the Veteran a new VA examination to determine the current severity of the elbow. The Veteran underwent a VA examination in November 2019. The Veteran reported persistent pain with repetitive twisting motions and resting the elbow on tables and arm rests. The examiner found the Veteran's elbow would impact occupational functionality to include an inability to carry heavy items or conduct repetitive tasks with his hands. The Veteran did not report flare-ups. ROM testing found normal ROM with flexion, extension, supination and pronation, with pain causing functional loss with supination and pronation. No evidence of pain with weight bearing, no objective evidence of crepitus. There was pain on palpation of the lateral epicondyle. There was no additional loss of ROM on repetitive use and no functional loss or impairment. Pain was noted to limit functional ability with repeated use over a period of time with no additional loss of ROM. All muscle strength testing was normal and there was no evidence of muscle atrophy, ankylosis or flail joint. No evidence of pain on passive range of motion or non-weight bearing testing. For the entire period on appeal, the Board finds that an evaluation in excess of the assigned 10 percent is not warranted for the Veteran's right elbow lateral epicondylitis. Objective findings from the Veteran's VA examinations are consistent with the currently assigned 10 percent evaluation, but no greater. Flexion, even with pain, was not limited to 70 degrees or less. Deluca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.59. The medical evidence for this period also shows that even with pain, the Veteran's right elbow lateral epicondylitis was not manifested by flexion limited to 70 degrees or less or extension limited to 75 degrees or more to warrant an increased evaluation under DCs 5206, 5207, or 5208. The Board has also considered whether an increased rating would be warranted under any other applicable diagnostic code. However, there is no evidence of ankylosis (DC 5205), impairment of flail joint (DC 5209), malunion of the ulna with bad alignment (DC 5211), nonunion of radius and ulna with fail false joint (DC 5210), impairment of radius (DC 5212), or limitation of pronation or supination (DC 5213). To that end, the Board finds that no other DC would provide a higher rating. In reaching all of the conclusions herein, the Board considered the Veteran's statements with regard to the severity of his disabilities during this period. The Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing pain; and the Board finds that the Veteran's reports have been credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board has considered the Veteran's reports along with findings from the Veteran's VA examinations. The Board notes, with respect to the Rating Schedule, where the criteria set forth therein require medical expertise which the Veteran has not been shown to have, the objective medical findings and opinions provided by the Veteran's VA examination reports in particular, have been accorded greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Accordingly, a rating in excess of 10 percent for the Veteran's right elbow lateral epicondylitis is not warranted. The benefit of the doubt doctrine is not for application. Kelly Gastoukian Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, Associate Counsel 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.