Citation Nr: 21012270 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-57 612 DATE: March 4, 2021 ORDER Entitlement to an initial 10 percent rating, but no higher, for residual lipomatosis scars is granted, effective September 13, 2013. REMANDED Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The Veteran’s residual scars are manifested by disability most analogous to two painful scars. CONCLUSION OF LAW The criteria for an initial 10 percent rating, but no higher, for residual lipomatosis scars have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Codes 7804, 7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1978 to October 1982. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronic claims file. The Board notes that during the January 2021 Board hearing, the Veteran’s representative requested the Board to take jurisdiction of all hearing loss and related disabilities, to include tinnitus. However, the Board finds that the agency of original jurisdiction (AOJ) has not adjudicated a claim for service connection for tinnitus. Additionally, the Veteran’s September 2014 and November 2014 VA 21-526EZ Forms listed hearing loss and did not mention tinnitus. Under VA regulations, tinnitus is a separate disability, and to date, the Veteran has not filed a claim for service connection for tinnitus. See Boggs v. Peake, 520 F.3d 1330, 1335 (Fed. Cir. 2008) (claims based on separate and distinctly diagnosed conditions must be considered separate and distinct claims for purposes of VA benefits); 38 C.F.R. §§ 4.85, 4.87. For these reasons, the Board is unable to expand the Veteran’s claim for bilateral hearing loss to include tinnitus. Accordingly, the Board does not have jurisdiction of the claim at this time and the issue will not be further discussed herein. Increased Rating for Residual Lipomatosis Scars A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Fenderson v. West, 12 Vet. App. 119, 126–27 (1999). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran residual lipomatosis scars are in receipt of an initial noncompensable rating pursuant to Diagnostic Code 7805. 38 C.F.R. § 4.118. During the pendency of the appeal, certain parts of the rating criteria for evaluating scar conditions were revised. See 83 Fed. Reg. 32,592 (July 13, 2018). Effective August 13, 2018, a new General Rating Formula for the Skin revised Diagnostic Codes 7806, 7809, 7813, 7815 to 7817, 7820 to 7822, and 7824 to 7829. See 38 C.F.R. § 4.118 (2018). Additionally, Diagnostic Codes 7801 and 7802’s language for scars was redefined. Id. The Board notes that the Veteran’s residual scars are not rated under any of these diagnostic codes. Under Diagnostic Code 7805, other scars (including linear scars) and other effects of scars are evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. Any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800 through 7804 are to be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. Diagnostic Code 7804 provides that one or two scars that are unstable or painful warrant a 10 percent evaluation; whereas, three or four scars that are unstable or painful warrant a 20 percent evaluation. 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, 10 percent is added to the evaluation based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable. 38 C.F.R. § 4.118, Diagnostic Code 7804. The Veteran was afforded a VA examination in April 2015, in which the examiner noted that the Veteran had residuals scars due to his lipoma excisions during active service. The examiner noted that the Veteran did not have any systemic manifestations due to any skin diseases. The examiner noted two scars: 1) scar of the left upper extremity, 4 cm., asymptomatic; and 2) scar of the right upper extremity, 1 cm., asymptomatic. Based on a review of the evidence, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s residual scars warrant an initial 10 percent rating, but no higher, pursuant to Diagnostic Code 7804. The Veteran testified at the January 2021 Board hearing that his scars were painful. The Veteran is competent to report his subjective symptoms, such as pain and tenderness. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (stating that a veteran is competent to report on all things of which he has personal knowledge derived from his own senses). In this respect, the Board finds the Veteran’s own reports of pain to be most probative, as the Veteran is indeed the only person truly capable of such observation. Moreover, the Board finds no reason to doubt his veracity. The Board finds that a rating in excess of 10 percent is not warranted since Diagnostic Code 7804 provides a maximum 10 percent rating for one or two painful scars. Additionally, there is no evidence that the Veteran’s residual scars are unstable. The Board has also considered the applicability of other potentially applicable diagnostic criteria. However, the evidence of record reveals that the Veteran’s residual scars are not deep and nonlinear, associated with underlying soft tissue damage, or affect the head, face, or neck. Additionally, the Veteran’s scars do not cover an area or areas of 144 square inches or greater. Therefore, Diagnostic Codes 7800 through 7802, both prior to and from August 13, 2018, are not applicable. Moreover, the Board finds that the evidence of record does not reflect any additional disabling effects or limitation of function under Diagnostic Code 7805 that are not already contemplated by the 10 rating under Diagnostic Code 7804, granted herein. While the Veteran has reported functional impairment due to his service-connected disability, the Board finds that his functional impairment of the left arm is not attributable to his residual scars as the record does not suggest that his residual scars limit motion. Specifically, a May 2016 VA examiner opined that the Veteran’s left elbow functional impairment is not related to or caused by his residual lipomatosis scars. In sum, the Board finds that an initial 10 percent rating, but no higher, for two painful scars is warranted and the preponderance of the evidence is against any higher or separate ratings. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND Service Connection for Bilateral Pes Planus The Board regrets further delay, but additional development is necessary before the matter can be adjudicated. Specifically, the Board finds that remand is required in order to obtain an adequate VA examination and medical opinion. Where VA provides a veteran with an examination in a service connection claim, the examination and medical opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the Veteran was afforded VA examinations in April 2015 and May 2016, in which the examiners concluded that the Veteran’s bilateral pes planus was less likely than not incurred in or etiologically related to service. The Board finds that the VA medical opinions are inadequate as the opinions are largely based on the absence of treatment or diagnosis of pes planus in service. See Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). Additionally, the examiners did not adequately consider the notations/reports of foot pain in the Veteran’s service treatment records (STRs). Accordingly, the Board finds that remand is necessary to obtain a VA examination and medical opinion regarding the nature and etiology of the Veteran’s bilateral pes planus. Service Connection for Bilateral Hearing Loss The April 2015 VA examiner opined that the Veteran’s bilateral hearing loss was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner cited the Institute of Medicine’s (IOM) report which found that prolonged-delay in onset of noise-inducted hearing loss was unlikely. Thus, the examiner concluded that given that there was no significant shift in the Veteran’s hearing levels greater than normal measurement variability during military service and no record of complaint or treatment of hearing loss in the STRs, it was less likely than not that the Veteran’s current hearing loss was caused by or the result of military service. The Board finds that the April 2015 VA medical opinion is inadequate because the examiner based her opinion largely on an IOM study that is ultimately inconclusive. McCray v. Wilkie, 31 Vet. App. 243 (2019). Additionally, the examiner’s opinion improperly focused on the absence of hearing loss at separation from service. See Hensley v. Brown, 5 Vet. App. 155, 15960 (1993). For these reasons, the Board finds that a new VA examination is warranted in order to determine the nature and etiology of the Veteran’s bilateral hearing loss. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of the Veteran’s bilateral pes planus. All necessary testing and evaluation should be performed, and all findings set forth in detail. Following a review of the claims file, the examiner is asked to opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s bilateral pes planus manifested in or is otherwise etiologically related to service, to include as due to wearing military boots and standing on steel metal floors. In rendering the requested opinion, the examiner is asked to consider and address the April 1981 report of on-and-off foot pain and May 1988 report of foot trouble. A complete rationale must be provided for all opinions provided. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and what additional evidence, if any, would allow for a more definitive opinion. 3. After completing directive #1, schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of the Veteran’s bilateral hearing loss. All necessary testing and evaluation should be performed, and all findings set forth in detail. Following a review of the claims file, the examiner is asked to opine as to whether the Veteran’s bilateral hearing loss is at least as likely as not (a 50 percent or greater probability) etiologically related to service. The examiner is advised that the IOM study is inconclusive regarding delayed-onset hearing loss and is asked to conduct research of relevant literature prior to opining. The examiner is further reminded that the absence of documented hearing loss during service cannot serve as the sole basis for a negative finding. The Veteran’s lay statements as to onset and continuity of symptoms must be considered and weighed in making the determination as to whether a nexus exists between the Veteran’s hearing loss disability and his military service. A complete rationale must be provided for all opinions provided. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and what additional evidence, if any, would allow for a more definitive opinion. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Robinson, 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.