Citation Nr: 21076823 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-33 727 DATE: December 27, 2021 ORDER The reduction of the rating for lineal scar, right side of nose (disfigurement), from 30 percent to a noncompensable rating effective February 1, 2018, was proper; the appeal is denied. A compensable rating for lineal scar, ride side of nose (disfigurement), since February 1, 2018, is denied. A rating in excess of 10 percent for lineal scar, right side of nose (painful scar), since October 30, 2017, is denied. A compensable rating for bilateral plantar keratotic lesions prior to May 13, 2021, is denied. A rating in excess of 20 percent for right foot plantar callus since May 13, 2021, is denied. Service connection for obstructive sleep apnea (OSA) is denied. Service connection for a cardiovascular (CV) disorder is denied. Service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. FINDINGS OF FACT 1. The Veteran served on active duty from February 2002 to February 2006. 2. The procedural requirements of 38 C.F.R. § 3.105(e) in the reduction of the right nose scar (due to disfigurement) were properly and appropriately completed. 3. The right nose scar did not result in any characteristics of disfigurement but has been manifested by one painful, tender scar. 4. Prior to May 13, 2021, a bilateral foot disability was manifested by subjective complaints of pain; objective findings included moderate symptoms. 5. Since May 13, 2021, a right foot disability has been manifested by subjective complaints of pain; objective findings include moderately severe symptoms. 6. A current diagnosis of OSA has not been shown. 7. A current diagnosis of a CV disorder has not been shown. 8. A current diagnosis of bilateral hearing loss has not been shown for VA purposes. CONCLUSIONS OF LAW 1. The reduction of the rating for lineal scar, right side of nose, from 30 percent to a noncompensable rating effective February 1, 2018, was proper. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.105 (e), 3.344, 4.1, 4.7, 4.118, Diagnostic Code (DC) 7800 (2021). 2. A compensable rating for lineal scar, ride side of nose (disfigurement), since February 1, 2018, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DC 7800 (2021). 3. A rating in excess of 10 percent for lineal scar, right side of nose (painful scar), since October 30, 2017, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DC 7804 (2021). 4. The criteria for a compensable rating for bilateral plantar keratotic lesions prior to May 13, 2021, have not been met. 38 C.F.R. §§ 1155, 5103 (a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.7, 4.71a, DC 5284. (2021). 5. The criteria for a rating in excess of 20 percent for right foot plantar callus since May 13, 2021, have not been met. 38 C.F.R. §§ 1155, 5103 (a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.7, 4.71a, DC 5284. (2021). 6. OSA was not incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.159, 3.303 (2021). 7. A CV disorder was not incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.159, 3.303 (2021). 8. Bilateral hearing loss was not incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Rating Reduction Historically, in January 2015, the Regional Office (RO) granted service connection for a lineal scar, right side of nose, and assigned a 30 percent rating, effective March 21, 2014. In August 2016, the RO proposed to decrease the rating from 30 percent to a noncompensable rating and the reduction was put into effect in a November 2017 rating decision with an effective date of February 1, 2018. Turning to the applicable law and regulations, generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons thereof. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). In the advance written notice, the beneficiary will be informed of his right for a pre-determination hearing, and if a timely request for such a hearing is received (i.e., within 30 days), benefit payments shall be continued at the previously established level pending a final determination. 38 C.F.R. § 3.105(i)(1). In this case, the RO proposed the rating reduction in an August 2016 rating decision. Further, the RO provided the Veteran with the necessary notice of the proposed reduction again in August 2017, over 60 days prior to the rating decision issued in November 2017 that put the reduction into effect. The RO explained that the previous rating of 30 percent was based on a clear and unmistakable error. In addition, the RO informed the Veteran that he had a right to a hearing but he did not request one. In cases where a rating has been in effect for more than five years, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344. Service connection was granted in January 2015 with a 30 percent rating assigned effective from March 2014, less than five years before the reduction took effect on in November 2017. Thus, various provisions of 38 C.F.R. § 3.344, pertaining to stabilization of disability ratings, do not apply. The Veteran's nose scar was rated under DC 7800 for disfigurement. Under DC 7800, a rating of 10 percent is warranted for a scar of the face, head, or neck with one characteristic of disfigurement. Additionally, a 10 percent rating may be warranted for one or two scars that ar unstable or painful under DC 7804. Initially, the RO granted a rating of 30 percent based on visible or palpable tissue loss and either gross distortion of or asymmetry of the nose; however, the RO later noted that it made a clear and unmistakable error when reviewing the results of the August 2014 VA examination upon which it based the initial rating. Turning to the medical evidence, the August 2014 VA examination report reflected 1 stable, non-painful scar of the nose. The examiner noted that the scar measured 1.2 cm x 0.1 cm and there was no elevation, depression, adherence to underlying tissue, or missing underlying soft tissue. Further, there was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. Further, an October 2017 VA examiner noted that the nose scar measured 1.2 cm x 0.1 cm. Further, he indicated that there was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. He also noted that the scar did not result in any functional impairment. As such, the scar was not found to show any characteristics of disfigurement. The Board notes that a separate, compensable rating was granted for a painful scar under DC 7804 based on the results of this examination. Based on the above, the Veteran did not meet the criteria for a compensable rating for a lineal scar of the nose under DC 7800 for disfigurement at any point throughout the period on appeal. Rather, the RO mistakenly granted an initial rating of 30 percent for a scar when it made an error reviewing the results of the August 2014 VA examination. As such, the evidence at the time of the reduction decision established that the Veteran's nose scar did not warrant a compensable rating. Further, the RO properly carried out the procedural requirements when notifying him of the proposed reduction. As such, the reduction was proper and the appeal is denied. Increased Rating Claims Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Nose Scar As noted above, the RO granted a separate 10 percent rating for a nose scar effective October 30, 2017, based on a painful scar under DC 7804. The Board will also consider whether the Veteran is entitled to a compensable rating under DC 7800 for disfigurement since February 1, 2018. In order to warrant a compensable rating for disfigurement, the evidence must show one characteristic of disfigurement (10 percent rating under DC 7800). Turning to the medical evidence, the clinical treatment records do not reflect any treatment of the nose scar during the relevant period. As such, the medical evidence does not reflect any of the criteria of disfigurement as anticipated under the regulations since February 1, 2018. As to a rating in excess of 10 percent for a painful nose scar under DC 7804, a higher rating is warranted when the objective medical evidence shows three or four scars that are unstable or painful (20 percent rating under DC 7804). Turning to the medical evidence, the Veteran reported that the nose scar was tender at palpation during an October 2017 VA examination. Further, it caused him pain when he sneezed. The examiner indicated that the Veteran had 1 painful scar of the head, face, or neck which measured 1.2 cm x 0.1 cm. Accordingly, the medical evidence from the VA examination does not show three or four scars that are unstable or painful as contemplated by the rating criteria. Additionally, the clinical treatment records do not show treatment for the right-side nose scar. As such, the medical evidence does not support a rating in excess of 10 percent for a lineal, painful scar of the nose. Bilateral Plantar Keratotic Lesions Prior to May 13, 2021, the Veteran was rated at a non-compensable rating for bilateral plantar keratotic lesions under DC 5284. In order to warrant a higher rating, the objective medical evidence must show moderate symptoms of a foot injury (10 percent rating under DC 5284). Turning to the medical evidence, an August 2014 VA examination report reflected pain on use, but without flare-ups or functional loss. The examiner did not note that the symptoms were moderate in severity. As such, the evidence from this VA examination does not support a compensable rating. Further, the clinical treatment records during the relevant period do not support the claim. While the records note the presence of bilateral foot callouses, there is no indication that the disability was moderate in severity. As such, the medical evidence does not support a compensable rating for a bilateral foot disability prior to May 13, 2021. Right Foot Plantar Callus Since May 13, 2021, the Veteran has been rated at 20 percent for right foot plantar callus (plantar keratotic lesions, previously evaluated as bilaterally) and was separately rated for a left foot plantar callus. In order to warrant a higher rating, the objective medical evidence must show severe symptoms of a foot injury (30 percent rating under DC 5284). Turning to the medical evidence, a May 2021 VA examination report reflected constant foot pain. The Veteran noted that the callouses on his feet required weekly treatment and shaving down. He reported flare-ups which occurred once a week for approximately one hour which resulted in severe, intense pain. The examiner noted that the Veteran's bilateral foot injury was moderately severe. As such, the evidence from the May 2021 VA examination does not show a severe foot injury as contemplated by the rating criteria. Further, the clinical treatment records do not indicate that the foot disability is severe in nature. Therefore, the current 20 percent rating is warranted for moderately severe symptoms as characterized by the medical evidence, but not more. With respect to all the increased rating claims, the Board has considered the Veteran's lay statements that his disabilities are worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which these disabilities are evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeals for increased ratings are denied. Service Connection Claims Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Sleep Apnea Turning to the medical evidence, the clinical treatment records and VA examination do not reflect a current diagnosis of OSA. Further, there are no sleep studies of record which reflect any sleep disorders. In the absence of a current diagnosis, service connection may not be granted under any theory of entitlement. As there is no medical evidence supporting a current diagnosis, the first element of service connection has not been met and the medical evidence does not support service connection. Cardiovascular Disorder Turning to the medical evidence, clinical treatment records reflect a history of heart palpitations; however, an August 2014 VA examiner indicated that the Veteran did not have a heart disorder and stated that previous palpitations were self-inflicted from caffeine pills. The examiner also noted that there was no evidence of myocardial infarction, congestive heart failure, arrythmias, or other heart conditions. Further weighing against the claim, a May 2021 VA examiner reported no diagnosis of a heart disorder. He explained that the medical records failed to support a diagnosis of any heart disorder. Further, the Veteran acknowledged that he had a cardiac work-up in the past and was told that he did not have a heart disorder. Accordingly, the medical evidence does not support a current diagnosis and the first element of service connection has not been met. Bilateral Hearing Loss Hearing loss and tinnitus are recognized by VA as a "chronic disease" under 38 C.F.R. § 3.309(a), such that the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). For VA purposes, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the Court has held that "the threshold for normal hearing is from 0 to 20 dBs, and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran contends he is entitled to service connection for bilateral hearing loss; however, the medical evidence does not support a current diagnosis of hearing loss for VA purposes. Turning to the medical evidence, in August 2014 VA examination, the pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 15 20 LEFT 20 10 20 15 15 The average pure tone threshold was 19 in the right ear, and 15 in the left ear. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear. As such, the results of this VA examination do not show hearing loss for VA purposes. In addition, the clinical treatment records do not reflect a diagnosis of bilateral hearing loss. Specifically, weighing against the claim, the clinical treatment records, including September 2021 VA records, reported good and normal hearing. As such, a current diagnosis has not been shown and the first element of service connection has not been met. Accordingly, the medical evidence does not support service connection under any theory of entitlement. With respect to the claims for service connection, the Board has considered the Veteran's lay statements that his disorders were caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology or diagnosis of his current disorders due to the medical complexity of the matters involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, these appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND With respect to the claim for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), the Veteran has claimed that his stressor is related to the fear of hostile military or terrorist activity. Specifically, he contends that he was deployed to Kuwait and Iraq and that his base was under constant mortar attack and the threat of ambush. Further, he related that he witnessed a friendly vehicle explode, which killed everyone inside, including his friend. Next, a VA psychiatrist or psychologist has diagnosed the Veteran with PTSD and confirmed that the stressor was adequate to support a diagnosis of PTSD and the symptoms were related to the claimed stressor. Nonetheless, the record as it stands does not reflect that the stressors were consistent with the places, types, and circumstances of the Veteran's service so his lay testimony alone is insufficient to establish the occurrence of the claimed in-service stressors. To that end, the DD-214 reflects that he was a construction wireman. The military personnel records reflect that his duties included assisting the switching platoon commander in planning, coordinating, and implementation of the battalion's tactical wire architecture, installing, operating, and maintaining the platoon assets in support of the battalion's tactical wire architecture, assisting in the development of lesson plans and training to enhance the individual training standards within the wire platoon, and leading, training, and supervising Marines in the wire platoon. While he was awarded the Iraq Campaign Medal, it is not clear whether he received the medal because of combat (regardless of days spent in country) or because of his duties within the borders of Iraq for 30 consecutive days or 60 nonconsecutive days. Further, while the Veteran related that his base was under constant mortar attack and the threat of ambush, the record is unclear about where he served in country and if this incident took place in Kuwait or Iraq. In addition, he reflected that he saw a friendly vehicle explode, which killed everyone inside, including his friend but no further information is of record. Based on the above, the record is not clear as to whether the Veteran served in combat or if the claimed stressors were consistent with the places, types and circumstances of his service or if he experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to his or others physical integrity, such as from an actual or potential improvised explosive device, vehicle-imbedded explosive device, incoming artillery, rocket, or mortar fire, grenade, small arms fire, including suspected sniper fire, or attack upon friendly military aircraft. Based on the above, additional development is needed to confirm the Veteran's stressors. As to the claim for TDIU, the Veteran contends that he is unemployable due to service-connected disabilities, including the nose scar, tinnitus, and bilateral foot disability, as well as PTSD (which is remanded herein). Additional development is necessary to determine whether functional impairment from his service-connected disabilities entitles him to a TDIU. The matters are REMANDED for the following actions: 1. Identify and obtain any outstanding VA treatment records and associate them with the claims file. 2. Obtain any outstanding military personnel records which reflect the Veteran's duty stations while deployed in Kuwait and Iraq. Identify whether mortar attacks and/or threats of ambush were consistent with his duty stations during the time he was stationed there. 3. Obtain additional information from the Veteran regarding the witnessing of a vehicle explosion and attempt to confirm the incident based on his response. 4. Then readjudicate the claim for an acquired psychiatric disorder, to include PTSD. 5. Thereafter, direct the claims file to a clinician to address the functional impairment of the Veteran's service connected disabilities on his ability to secure or follow a substantially gainful occupation, including an acquired psychiatric disorder if it is subsequently granted. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Kokolas, 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.