Citation Nr: 21010634 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-28 516 DATE: February 25, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to an initial rating of 10 percent, and no higher, is granted for scar, left knee status-post meniscus repair and lateral meniscectomy. REMANDED Entitlement to an initial rating in excess of 10 percent for left knee tricompartmental degenerative joint disease status-post meniscus repair and lateral meniscectomy is remanded. Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for erectile dysfunction is remanded. FINDINGS OF FACT 1. The Veteran’s tinnitus began during his active service. 2. The Veteran’s scar of the left knee, status-post meniscus repair and lateral meniscectomy, has been painful but not unstable throughout the relevant rating period. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for entitlement to an initial rating of 10 percent, and no higher, for scar, left knee status-post meniscus repair and lateral meniscectomy, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1980 to January 1993. In July 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues decided herein. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 1. Entitlement to service connection for tinnitus The Veteran seeks entitlement to service connection for tinnitus, which he believes is due to in-service noise exposure. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for 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). With respect to the current disability element of service connection, tinnitus is readily observable by laypersons, and medical expertise is not required to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the Veteran’s assertion that he currently has tinnitus constitutes competent evidence of a current disability of tinnitus. Furthermore, the Board finds that nothing in the record impugns the Veteran’s credibility on the matter, and therefore concludes that the Veteran has a current disability of tinnitus. With respect to an in-service injury or disease, the Veteran’s service treatment records show that he reported tinnitus in conjunction with otitis media in July 1989. On an April 1990 report of medical history for reenlistment, he indicated that he had had tinnitus “for years”. The Veteran’s VA treatment records show that he sought treatment for tinnitus in January 2014, stating at that time, “I have had this for years, since I was in the service.” Thus, the service treatment records show that he complained of tinnitus during his active service and the post-service medical treatment records show that the Veteran has reported that the in-service tinnitus continued through the present. As noted above, the Veteran’s statements as to the presence of tinnitus constitute competent evidence of its existence. Therefore, the Veteran’s later statement in January 2014 that he had had tinnitus since his active service is competent evidence that his current tinnitus began during his active service. The Board finds that his statements in that regard are also credible. Therefore, they are probative evidence showing that the current tinnitus had its onset during the Veteran’s active service. Tinnitus, as an organic disease of the nervous system, may be service connected where it is first shown in service and has subsequent manifestations. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran has credibly reported that his tinnitus began during his active service and has persisted through the present. The Board resolves any remaining doubt in the Veteran’s favor and finds that the claim for entitlement to service connection for tinnitus must be granted as a presumptive chronic condition. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a compensable initial rating for scar, left knee status-post meniscus repair and lateral meniscectomy The Veteran seeks a compensable initial rating for scar, left knee status-post meniscus repair and lateral meniscectomy. The applicable rating period is from September 30, 2013, the effective date for the award of service connection for that disability, through the present. See 38 C.F.R. § 3.400. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The Veteran’s service-connected left knee scar is currently rated under 38 C.F.R. § 4.118, Diagnostic Code 7805, which rates based on disabling effects not considered under Diagnostic Codes 7800, 7801, 7802, or 7804. The Veteran has reported that the service-connected left knee scar is painful. Therefore, also applicable in this case is 38 C.F.R. § 4.118, Diagnostic Code 7804, which pertains to unstable or painful scars. Under Diagnostic Code 7804, 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 maximum 30 percent rating is warranted for five or more scars that are unstable or painful. Note (2) under Diagnostic Code 7804 states dictates that, if one or more scars are both unstable and painful, 10 percent is to be added to the rating that is based on the total number of unstable or painful scars. Note (1) under Diagnostic Code 7804 defines unstable scars as those “where, for any reason, there is frequent loss of covering of skin over the scar.” Turning to the relevant evidence of record, an April 2014 VA examiner indicated that the Veteran’s service-connected scar measures 7 centimeters in length and an August 2019 VA examiner indicated that the scar measures 7 centimeters by 0.1 centimeters. Although both of those VA examiners both indicated that the scar was not painful or unstable on examination, the Veteran testified at the July 2020 Board hearing that the scar is painful “all the time” and throbs and swells at times. The Board finds no reason to doubt the Veteran’s reports despite the VA examiners’ finding the scar not to be painful on examination. That the scar was not painful at the examinations is not necessarily in conflict with the Veteran’s reports that at times the scar is painful, throbs, and swells. In view of the relevant evidence of record, the Board finds that the Veteran’s service-connected left knee scar manifested in a single painful scar throughout the relevant rating period. Accordingly, an initial rating of 10 percent is warranted for the entire rating period under 38 C.F.R. § 4.118, Diagnostic Code 7804. The Board further finds that an initial rating in excess of 10 percent is not warranted under Diagnostic Code 7804 because the Veteran did not have three or more painful or unstable scars relating to the service-connected soft tissue loss, and there is no evidence of record showing that his single painful scar was also unstable. The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran’s service-connected left knee scar is not of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage. Although it is superficial and not associated with underlying soft tissue damage, it does not cover an area or areas of 929 square centimeters or greater. Therefore, Diagnostic Codes 7800 through 7802 are inapplicable. In addition, the evidence of record shows there are no other disabling effects due to the service-connected left knee scar that are not considered in a rating provided under Diagnostic Codes 7800-04. Therefore, a higher or additional compensable initial rating is not warranted under Diagnostic Code 7805. Neither the Veteran nor his representative has raised any other issues with regard to the rating for the service-connected left knee scar, nor have any other such issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). The Board therefore finds that the criteria for an initial rating of 10 percent, and no higher, are met for the Veteran’s scar, left knee status-post meniscus repair and lateral meniscectomy, for the entire rating period. To the extent that the Veteran seeks entitlement to an initial rating higher than or in addition to that granted herein, the preponderance of the evidence is against the appeal, the doctrine of reasonable doubt is not for application, and the appeal must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. 49. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for left knee tricompartmental degenerative joint disease status-post meniscus repair and lateral meniscectomy is remanded. The Veteran was most recently provided a VA examination as to his service-connected left knee disability in August 2019. The report for that examination, indicates that the Veteran was unable to complete left knee range of motion testing due to cramping in the left hip and calf. The Board finds that examination to be inadequate for decision-making purposes because it does not include the range of motion testing required to fully rate the disability under the relevant rating criteria. Therefore, the issue must be remanded so that the Veteran may be provided another VA examination to determine the current severity of his service-connected left knee disability. 2. Entitlement to service connection for hearing loss is remanded. The Veteran seeks entitlement to service connection for hearing loss, which he contends is due to in-service noise exposure or to in-service ear infections. 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, 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. Additionally, the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran’s service treatment records show that he was treated for otitis media during his active service. In addition, a July 1984 report of medical examination shows the following auditory thresholds measured in decibels: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 25 25 25 30 30 20 LEFT 25 30 30 25 25 20 Although the July 1984 audiometric test results do not reflect a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, they do indicate bilateral hearing loss at 500 Hz to 4000 Hz under Hensley, 5 Vet. App. 155, as the Veteran had a puretone threshold of 25 decibels or greater at those frequencies. The Veteran also reported hearing loss on an April 1990 report of medical history. However, audiological testing performed after July 1984 during the Veteran’s active service showed improved auditory thresholds. A January 1993 report of medical examination for separation from active service shows the following auditory thresholds: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 5 10 5 0 25 5 LEFT 10 10 10 15 20 5 The January 1993 audiometric test results show lower puretone thresholds at all frequencies in both ears compared to the July 1984 testing. They show no hearing loss disability under 38 C.F.R. § 3.385 or hearing loss in the left ear under Hensley, but do show a slight hearing loss under Hensley in the right ear at 4000 Hz. The Veteran was afforded a VA examination as to his claimed hearing loss in April 2014. Testing conducted at that examination revealed a current bilateral hearing loss disability under 38 C.F.R. § 3.385. The examiner acknowledged that the July 1984 examination revealed mild bilateral hearing loss, but opined that the Veteran’s current bilateral hearing loss is less likely than not caused by an in-service event. As a rationale for that opinion, she explained that the Veteran’s hearing at separation was within normal limits and that there is no scientific basis for the existence of delayed-onset hearing loss due to acoustic trauma. The Board finds that the examiner’s opinion is inadequate for decision-making purposes because it does not address whether there was a hearing loss shown to be chronic during service, whether the current bilateral hearing loss may be etiologically related to the in-service hearing loss, or whether the current hearing loss disability may be related to the ear infections shown in the service treatment records. The issue must be remanded to obtain an addendum opinion. 3. Entitlement to service connection for erectile dysfunction is remanded. The Veteran seeks entitlement to service connection for erectile dysfunction, which he contends is secondary to his service-connected generalized anxiety disorder and the medications he takes for that disorder. His private treatment records include a September 2013 note stating that his sexual drive and erectile problems are not related to a lack of testosterone, but rather “could be more psychological than metabolic.” He was provided a VA examination as to the claimed erectile dysfunction in April 2014. The VA examiner diagnosed the Veteran with erectile dysfunction and opined that the condition is less likely than not caused by the Veteran’ in-service vasectomy because the Veteran did not report erectile dysfunction until many years after his separation from active service. In April 2017, another VA examiner opined that it is less likely than not that the Veteran’s erectile dysfunction is proximately due to or the result of medications the Veteran takes for his service-connected generalized anxiety disorder because he began taking those medications only after he first experienced erectile dysfunction. Neither examiner provided an opinion as to whether the Veteran’s erectile dysfunction is proximately due to or aggravated by the service-connected generalized anxiety disorder itself or as to whether the erectile dysfunction may be aggravated by the medications the Veteran takes for the service-connected generalized anxiety disorder. The issue must be remanded to obtain such opinions. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left knee tricompartmental degenerative joint disease status-post meniscus repair and lateral meniscectomy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement of additional impairment during flare-ups based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement of range of motion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s current bilateral hearing loss is at least as likely as not (50 percent probability or greater) due to in-service noise exposure or to in-service ear infection. In providing the opinion, the clinician should explain whether the in-service bilateral hearing loss found on examination in July 1984 was chronic during service. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. See 38 C.F.R. § 3.303(b). If not, the clinician should explain whether the in-service bilateral hearing loss found in July 1984 indicates that the current bilateral hearing loss had its onset during the Veteran’s active. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s erectile dysfunction is at least as likely as not (50 percent probability or greater) proximately due to or aggravated by the service-connected generalized anxiety disorder with social anxiety disorder, to include the medications the Veteran takes for that disability. The clinician must discuss the September 2013 private treatment note that states, “Sexual drive and erectile problems are not related to the lack of testosterone. Your levels are normal. This could be more psychological than metabolic.” The clinician must also discuss the Veteran’s reports that his erectile dysfunction became worse after being prescribed medications for his service-connected generalized anxiety disorder. The question of aggravation must be address separately from the question of causation. The clinician must note that an opinion to the effect that one disability “is not caused by or a result of” another disability does not answer the question of aggravation. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. J. Anthony, 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.