Citation Nr: 21015920 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-11 571 DATE: March 18, 2021 ORDER Entitlement to an initial compensable rating for scar, right foot laceration, is denied. REMANDED Entitlement to service connection for left ear hearing loss is remanded. FINDING OF FACT The Veteran’s right foot scar is not painful or unstable. CONCLUSION OF LAW The criteria for an initial compensable rating for scar, right foot laceration, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes (DCs) 7800-7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from June 1976 to June 1979. This matter comes before the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) rating decision dated in July 2013. The Board denied entitlement to service connection for seven disabilities (left foot, right foot, left knee, right knee, left leg shin splints, right leg shin splints, and back) in January 2019, and remanded entitlement to service connection for bilateral hearing loss and an increased rating for right foot scar. In September 2019, the United States Court of Appeals for Veterans Claims (Court) vacated the January 2019 Board decision denying service connection for the seven disabilities, and the Board remanded those claims to the AOJ in March 2020. In June 2020, the AOJ granted service connection for right ear hearing loss, and in July 2020, service connection for the seven aforementioned disabilities was granted. Therefore, those issues are no longer on appeal; the remaining issues are entitlement to service connection for left ear hearing loss and entitlement to a compensable rating for right foot scar. With respect to the scar rating, the Board finds that the AOJ substantially complied with the January 2019 Board remand directives. Therefore, another remand of that issue is not warranted. Unfortunately, as explained below, a remand of the left ear hearing loss claim is required. Entitlement to an initial compensable rating for scar, right foot laceration is denied. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. The percentage ratings are based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. §§ 4.3, 4.7. Otherwise, the lower rating will be assigned. Staged ratings are appropriate in any initial rating/increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s right foot scar is rated as noncompensable (0 percent) under DC 7805. Under DC 7805, other scars (including linear scars), not otherwise rated under DCs 7800-04, in addition to the other effects of scars which are otherwise rated under DCs 7800-7804, are to be rated based on any disabling effects not provided for by DCs 7800-7804. 38 C.F.R. § 4.118, DC 7805. This includes, where applicable, diagnostic codes pertaining to limitation of function. Id. The Board acknowledges that the rating criteria for the skin were amended, effective August 13, 2018. VA’s intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 13, 2018). These amendments do not affect the substantive criteria under DC 7805, under which this Veteran’s scar has been evaluated. Under the amendments, the phrase “(including linear scars)” was replaced with “and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, or 7804.” 38 C.F.R. § 4.118, DC 7805 (August 13, 2018). Both the prior and amended versions of DC 7800 apply to scars or other disfigurement of the head, face, or neck. As the Veteran’s scar is located on his foot, this code is not for application. The pre-amended version of DC 7801 applies to scars that are deep and nonlinear, and provides for a 10 percent disability rating when such scars cover an area or areas of at least 6 square inches (39 square centimeters). Note (1) states that a deep scar is one associated with underlying soft tissue damage. The amended version also applies to scars that are associated with underlying soft tissue damage. As the Veteran’s foot scar has not been assessed as deep and nonlinear, associated with underlying soft tissue damage, or of sufficient area, this code is not for application. Under pre-amended DC 7802, scars not of the head, face, or neck, that are superficial and nonlinear are assigned a rating of 10 percent with area or areas of 144 square inches (929 square centimeters) or greater. Under amended DC 7802, scars not of the head, face, or neck, that are not associated with underlying soft tissue damage are assigned a rating of 10 percent with area or areas of 144 square inches (929 square centimeters) or greater. In this case, the Veteran’s scar does not cover at least 929 square centimeters, and this code is not for application. DC 7804 was not affected by the amendments. Under that code, scars can be assigned a rating of 30 percent with five or more scars that are unstable or painful. A rating of 20 percent requires three or four scars that are unstable or painful. A rating of 10 percent requires one or two 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. The evidence shows that the Veteran’s foot scar is not painful or unstable, making this DC inapplicable. Therefore, DC 7805 applies. Having reviewed the applicable diagnostic codes, the question before the Board is whether the Veteran’s right foot scar, alone, results in limitation of function of the foot. Turning to the evidence, the Veteran was afforded a VA examination in May 2013. The Veteran’s scar was on the dorsum of the right foot, it was linear, and was 2 cm. The scar was not painful or unstable. The Veteran’s scar did not cause limitation of function or muscle, nerve, or tissue damage. The examiner indicated that the Veteran had a laceration that was treated and sutured, and healed without any chronic residuals. The Veteran underwent another VA examination in October 2019. The examiner indicated that the scar on the Veteran’s extremities was tender, but not painful or unstable. The scar measured 1cm x 0.5 cm and was located on the top of the right foot. His scar did not result in limitation of function, to include limitation of motion. The Veteran was able to have his shoes tied without grimacing or guarding of the scar. The Veteran’s scar did not impact his ability to work. The Veteran had a VA examination of his foot in April 2020. The examiner indicated that the Veteran had foot pain, but it was unrelated to his scar. There was no painful foot scar noted. In order for his service-connected right foot scar to warrant a compensable disability rating under DC 7805, there must be some resulting limitation of function; however, the evidence of record, does not document that the Veteran’s foot scar has resulted in limitation or impairment of function for any period on appeal. As such, a compensable disability rating is not warranted under DC 7805. Id., DC 7805. Additionally, while the Veteran’s foot scar is tender, it has not been found to be painful or unstable upon repeated physical examinations; therefore, a compensable disability rating is not warranted under DC 7804. Id., DC 7804. In sum, as there are no disabling effects caused by the Veteran’s scar indicated in the record, even considering tenderness, a higher rating is denied. The benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C. § 5107(b). REASONS FOR REMAND Entitlement to service connection for left ear hearing loss is remanded. Although the Veteran experienced hearing loss of 35 decibels at the frequency of 500 Hertz in the left ear at service entrance, the audiogram results at service entrance did not reveal pre-existing hearing loss, as the recorded pure tone thresholds did not satisfy the regulatory requirements of 38 C.F.R. § 3.385. Significantly, if the degree of hearing loss noted on an entrance medical examination did not meet VA’s definition of a “disability” for hearing loss under 38 C.F.R. § 3.385, the Veteran is entitled to the presumption of soundness under 38 C.F.R. § 1111. McKinney v. McDonald, 28 Vet. App. 15, 21 (2016). According to McKinney, abnormal hearing which does not meet the thresholds of a hearing loss “disability” for VA compensation purposes cannot be deemed a “defect” which is noted on the entrance examination. The Veteran’s entrance audiogram did not show hearing loss under 38 C.F.R. § 3.385 in either ear. As such, this claim shall be examined under a direct service connection theory of entitlement. In the January 2019 decision, the Board remanded this matter for a new VA examination and medical nexus opinion. An examination was conducted in October 2019, and the VA examiner issued a negative medical opinion based exclusively on the absence of a significant threshold shift between service entrance and separation. The Court has cautioned that a claim of entitlement to service connection for hearing loss may not be denied by the Board simply because normal hearing was demonstrated in the Veteran’s service treatment records. Hensley v. Brown, 5 Vet. App. 155, 157 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, the Board finds that the VA examiner’s opinion was in contravention of the Court’s holdings in Hensley and Ledford and was not fully articulated and supported by a reasoned rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2002). A remand is required for an additional medical nexus opinion. Further, the Board notes that the January 2019 Board remand included specific issues for the examiner to address, such as discussing the significance between hearing thresholds at entrance and separation, and hearing loss patterns found when there is acoustic trauma in service. These queries were not addressed in the October 2019 VA examination. The Board is obligated to ensure AOJ compliance with remand directives. Stegall v. West, 11 Vet. App. (1998). Lastly, upon remand, the AOJ is requested to obtain updated VA treatment records from November 2019 to the present and associate them with the electronic claims file. 38 C.F.R. § 3.159(c)(2) and (3). The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 2019 to the present. 2. Obtain a supplemental opinion from an appropriate VA examiner to determine the nature and etiology of the Veteran’s left ear hearing loss. Following review of the record, the examiner should respond to the inquiry below. A copy of this remand must be made available to the examiner. If the examiner determines that he or she cannot respond to the Board’s inquiry as set forth in detail below without examination of the Veteran, the Veteran should be afforded such an in-person examination, or by other means, if an in-person examination is not feasible. If an examination is conducted, any indicated tests and studies must be accomplished. The examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current left ear hearing loss was incurred in or is otherwise etiologically related to his active duty service, to include acoustic trauma from radio noise and loud engine noise. See August 2012 lay statement from Veteran. The examiner should note that the Veteran is service connected for right ear hearing loss and the October 2019 VA examination found acoustic trauma during service. The examiner must discuss and address: 1) the significance of threshold shifts, if any, between entrance and separation, even if hearing was essentially normal at separation; 2) whether the Veteran’s left ear hearing loss is the type of hearing loss patterns typically seen in cases of acoustic trauma; and 3) whether the Veteran’s left ear hearing loss is more likely due to advancing age, post-service noise exposure, infection, or other causes. The examiner is cautioned against focusing his or her opinion solely on the evidence of record showing the Veteran experienced normal hearing at service discharge or a lack of significant threshold shift between service entrance and separation. The examiner must provide a complete rationale for any opinion expressed that is based on the examiner’s clinical experience and medical expertise; established medical principles; and the evidence in the electronic claims file, as appropriate. M. Galante Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Smith, 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.