Citation Nr: 21022262 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-15 648 DATE: April 15, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. Entitlement to an initial disability rating of 30 percent, but no higher, for residual gunshot back of head pellet gun skin/scar wound is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a separate disability rating of 30 percent, but no higher, for right anterior neck status post knife wound is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The preponderance of the evidence reflects that the Veteran has not had bilateral hearing loss for VA purposes at any time during the current appeal or approximate thereto. 2. The evidence is at least evenly balanced as to whether the Veteran’s tinnitus is related to in-service acoustic trauma. 3. Throughout the appeal period, the symptoms of the Veteran’s residual gunshot back of head pellet gun skin/scar wound and right anterior neck status post knife wound more nearly approximated two characteristics of disfigurement, respectively, but neither disability more nearly approximated visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles) cheeks, lips), or; with four or five characteristics of disfigurement. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for an initial disability rating of 30 percent, but no higher, for residual gunshot back of head pellet gun skin/scar wound are met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7. 4.10, 4.118, Diagnostic Code (DC) 7800. 4. The criteria for a separate disability rating of 30 percent, but no higher, for right anterior neck status post knife wound are met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7. 4.10, 4.118, DC 7800. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1989 to August 1994. These matters initially came before the Board of Veterans’ Appeals (Board) on appeal from a rating decision in July 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) that denied the claims of service connection for bilateral hearing loss, tinnitus, and mental health issues, and granted the claim of service connection for residual gunshot back of head pellet gun skin/scar wound with an initial evaluation of 10 percent, effective June 25, 2012. The Veteran timely appealed these matters. In a November 2020 rating decision, the RO granted the claim of service connection for major depressive disorder with an initial evaluation of 70 percent, effective June 25, 2012. As a general matter, the grant of a claim of service connection constitutes an award of full benefits sought on an appeal of the denial of a service connection claim. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of “downstream” issues such as the compensation level assigned for the disability or the effective date of service connection). Thus, this issue is not before the Board. In July 2020, the Board remanded the matters for further development, to include VA examinations.  The AOJ has substantially complied with the Board’s July 2020 remand instructions by, as demonstrated by the discussion below, obtaining VA opinions in regard to the Veteran’s claim for a higher initial disability rating for gunshot wound and claim for service connection for bilateral hearing loss that are adequate to decide the claims.  Thus, no further action is necessary in this regard.  As the Board is granting the claim of service connection for tinnitus in full, discussion of compliance with the Board’s July 2020 remand instructions is unnecessary in regard to that claim.  Stegall v. West, 11 Vet. App. 268 (1998).  Service connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. See Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). Service connection may also be granted for certain chronic diseases, including organic diseases of the nervous system, such as hearing loss and tinnitus, when such chronic disability is manifested to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C. §§ 1101, 1112(a); Fountain v. McDonald, 27 Vet. App. 258 (2015) (holding that tinnitus is a chronic disease). Entitlement to service connection for bilateral hearing loss The Veteran contends he suffers from bilateral hearing loss that is related to acoustic trauma he experienced in-service when he was exposed to engine and machinery noise aboard naval vessels. A hearing loss disability is defined for VA compensation purposes using audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater, or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The Court, in Hensley v. Brown, 5 Vet. App. 155, 157 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran’s service and his current disability. The Court’s directives in Hensley are consistent with 38 C.F.R. § 3.303(d), which provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including evidence pertinent to service, establishes that the disease was incurred in service. For the following reasons, the Veteran does not have a current disability of bilateral hearing loss as defined for VA compensation purposes and has not had one at any time during the pendency of the claim or recent to the filing of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim). The August 2020 VA audiologist evaluated the Veteran and determined that the Veteran had normal hearing in both ears, and he did not have a diagnosis of bilateral hearing loss for VA purposes based on his 100 percent speech recognition scores on the Maryland CNC test, as well as the following puretone auditory threshold results: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 5 5 10 LEFT 5 0 5 15 15 In order to qualify for bilateral hearing loss for VA purposes, the Veteran is required to meet the regulatory threshold for hearing loss as defined in 38 C.F.R. § 3.385. Even though veterans are competent to testify as to some medical matters, see Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007), VA has determined that hearing loss can only be considered a disability if it meets the audiometric or speech recognition scores of the Maryland CNC required by 38 C.F.R. § 3.385. Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007) (hearing loss does not constitute a disability if it does not meet the threshold requirements for 38 C.F.R. § 3.385). Consequently, the Veteran does not meet the current disability requirement for bilateral ear hearing loss as his speech recognition score was not less than 94 percent, and he did not have an auditory threshold of 40 decibels at any frequency or a threshold of 26 or more decibels at three frequencies. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a current disability. 38 U.S.C. § 1110. The provisions of 38 C.F.R. § 3.385 prohibit the award of service connection for hearing loss where audiometric test scores do not represent “impaired hearing” as defined by regulation. Hensley, 5 Vet. App. at 158 (1993). Therefore, there can be no entitlement to service connection for bilateral hearing loss where, as here, there is an absence of evidence that the Veteran currently has at any time had bilateral hearing loss to an extent recognized as a disability under the governing regulation. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for bilateral hearing loss. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for tinnitus The Veteran contends his tinnitus is related to acoustic trauma he experienced in-service when he was exposed to engine and machinery noise aboard naval vessels. The Veteran reported in an August 2013 VA treatment record that he experienced buzzing sounds in his ears. The August 2020 VA audiological examination noted that there was no evidence in the Veteran’s service treatment records of complaints of tinnitus during service or at separation. The audiologist also indicated that the Veteran denied current or past tinnitus. Thus, the VA audiologist found it was less likely than not that the Veteran’s tinnitus was caused by or a result of military noise exposure. For the following reasons, entitlement to service connection for tinnitus is warranted. The Veteran is competent to identify tinnitus, as ringing in the ears is readily observable by laypersons and does not require medical expertise to establish its existence.  Charles v. Principi, 16 Vet. App. 370, 374 (2002).  Thus, the Veteran has a current disability of tinnitus.  The Veteran contends that he suffered in-service noise exposure while aboard naval vessels and is competent to report such in-service noise exposure. Jandreau, 492 F.3d at 1376-77; Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). There is nothing to explicitly contradict his reports of in-service noise exposure, and his reports are consistent with the evidence of record and the circumstances of his service. 38 C.F.R. § 3.303(a) (each disabling condition for which a Veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record).  Therefore, the Veteran’s reports of in-service noise exposure are competent and credible, and the Veteran meets the in-service injury or disease requirement. Thus, the dispositive issue in this case is whether there is a nexus between the current tinnitus and the in-service noise exposure. The August 2020 VA opinion is afforded little probative value as it is based on the finding that tinnitus was not reported in service. Buchanan, 451 F.3d at 1336 (VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the Veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”).    Moreover, the evidence of record contains competent and credible evidence of tinnitus since service.  Jandreau, 492 F.3d at 1377 (a veteran is competent to testify regarding continuous pain since service, and lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service); Buchanan, 451 F.3d at 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence).    The evidence of record includes an inadequate VA opinion and competent and credible lay statements regarding the Veteran’s continuous symptoms of tinnitus and its relation to his in-service acoustic trauma. To the extent that the grant of service connection in this case is based primarily on lay evidence, “nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself.” Id. at 1335. At this point, the Board could remand the claim for a VA examination or opinion.  However, a request for an opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible.  38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)).  For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s tinnitus is related to in-service acoustic trauma. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, service connection is warranted for tinnitus. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to a higher initial disability rating for residual gunshot back of head pellet gun skin/scar wound and separate disability rating for neck scar Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § § 1155 ; 38 C.F.R. § Part 4. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505, 510 (2007).  Where there is a question as to which of two evaluations 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. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Veteran is currently in receipt of a 10 percent initial evaluation for his gunshot wound under DC 7800. The Board has a duty to consider all potentially applicable DCs. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Moreover, the assignment of a particular DC is “completely dependent on the facts of a particular case” and the Board can choose the DC to apply so long as reasons and bases as well as the evidence support it.  Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (applying the more deferential “arbitrary, capricious” standard, rather than de novo review, to the Board’s determination of the appropriate DC). Thus, the Board is granting a separate disability rating for the Veteran’s neck scar under DC 7800 for disfigurement of the head, face, or neck based upon the facts of this particular case. Specifically, the Supplemental Statement of the Case characterized the issue on appeal as one of entitlement to an evaluation in excess of 10 percent for residuals of a head wound, to include scars. This means that the RO adjudicated not only the gunshot wound, but also the Veteran’s neck scar, and assigned them a single evaluation under DC 7800. However, as just noted, and as will be discussed further below, the Board finds the Veteran is entitled to a separate disability rating under DC 7800 for the neck scar. Furthermore, as will also be discussed, the grant of this separate rating does not violate the rule against pyramiding. 38 C.F.R. § 4.25(b) (except as otherwise provided in [the rating] schedule, the disabilities arising from a single disease entity... are to be rated separately as are all other disabling conditions, if any); 38 C.F.R. § 4.14 (“[t]he evaluation of the same disability under various diagnoses,” a practice called “pyramiding,” “is to be avoided”). The rationale for the prohibition on pyramiding is that “the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment” suffered. Brady v. Brown, 4 Vet. App. 203, 206 (1993). The Court held, in Esteban v. Brown, 6 Vet. App. 259, 262 (1994) that for purposes of determining whether the veteran is entitled to separate ratings for different problems or residuals of an injury such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of or overlapping with the symptomatology of the other two conditions. Here, as will be discussed, the Veteran’s symptoms and the incident that led to his neck scar do not overlap with his service-connected gunshot wound, which is related to a separate in-service incident where he was shot with a pellet. Thus, the grant of a separate disability rating for neck scar under DC 7800 does not constitute pyramiding. Moreover, consistent with VA’s duty to maximize benefits, the Board must consider all possible schedular bases for separate ratings before considering whether an extraschedular rating is warranted to address symptoms not contemplated by the applicable diagnostic code. Morgan v. Wilkie, 31 Vet. App. 162, 167 (2018). DC 7800 provides the rating criteria for burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. Under that DC, a 10 percent rating is assigned for one characteristic of disfigurement. A 30 percent rating is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A 50 percent rating is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. An 80 percent rating is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement.  38 C.F.R. § 4.118. The 8 characteristics of disfigurement, for purposes of evaluation under § 4.118, are: (1) scar 5 or more inches (13 or more cm.) in length, (2) scar at least one-quarter inch (0.6 cm.) wide at its widest part, (3) surface contour of scar elevated or depressed on palpation, (4) scar adherent to underlying tissues, (5) skin hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.), (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.), (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.), and (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.).  Id. at Note (1). A July 2013 VA examination indicated that the Veteran had scars on the left head, secondary to an air-pellet, and the right neck, secondary to a laceration with a broken bottle, that were both incurred in 1993. Neither of the scars were reported as painful, unstable, or due to burns. The Veteran’s head scar was measured at 3 x 0.4 cm on the left posterior occiput, while the Veteran’s neck scar was measured at 6 x 0 cm on the anterior right neck. There was no elevation, depression, adherence to underlying tissue, or missing underlying soft tissue. The Veteran’s neck scar had hypopigmentation. The approximated combined total area of head, face, and neck with hypopigmented areas with 0.72 cm squared. There was no gross distortion or asymmetry of facial features or visible palpable tissue loss, or disfigurement of the head, face, or neck that resulted in limitation of function. The Veteran’s scars did not impact his ability to work. Lastly, the examiner noted that there was a raised hard area without discoloration or scarring at the right posterior parietal head that was without scarring or disfigurement. In October 2017, a VA examiner indicated that he was unable to locate scars in the Veteran’s head area despite a thorough skin examination. The Veteran denied problems during the examination and denied painful or unstable scars. During a November 2020 VA examination, the examiner recorded the Veteran’s right anterior neck status post knife wound that is an elongated hypo-pigment scar consistent with a laceration, as well as the right side posterior occipital lobe annular palpable foreign object status post pellet gunshot wound without any visible scar. The Veteran reported that he was shot in the back of a head with a pellet which was left in his skull due to it not being harmful. He indicated that it is painful and feels like it is exiting his scalp. In regard to his neck scar, he was attacked and had his throat cut. The Veteran noted the scar is painful at times. However, the examiner indicated that none of the scars were reported as painful or unstable. The head scar measured 1 x 2 cm, and the neck disfigurement measured 6 x .5 cm. The neck scar had underlying soft tissue missing and hypopigmentation. Both scars were tender to palpation. The total area of the head, face, and neck with hypo- or hyperpigmented areas and missing underlying soft tissue was 3 cm squared. There was no gross distortion or asymmetry of facial features or visible palpable tissue loss, or disfigurement of the head, face, or neck that resulted in limitation of function. On inspection of the right posterior occipital lobe gunshot wound, no visible scar could be seen under the hair line. The examiner was able to palpate the enteral foreign object under the skin, which was most like a projectile. The Veteran’s scars did not impact his ability to work. During a January 2021 VA examination, the VA examiner noted the Veteran’s right occipital scalp area pellet that is residual of pellet gun shot that was not reported as painful or unstable. The scar was measured at .6 cm by .6 cm. There was no elevation, depression, adherence to underlying tissue, or missing underlying soft tissue, but there was abnormal texture. Approximate total area of the head, face, and neck with abnormal texture was .36 cm squared. There was no disfigurement of the head, face, or neck that resulted in limitation of function. The Veteran’s scars did not impact his ability to work. For the following reasons, a 30 percent initial disability rating for residual gunshot back of head pellet gun skin/scar wound, but no higher, is warranted. A separate disability rating of 30 percent, but no higher, is warranted for right anterior neck status post knife wound. The evidence of record throughout the appeal period, to include the July 2013, November 2020, and January 2021 VA examinations, reflects that the symptoms of the Veteran’s gunshot wound and neck scar more nearly approximated maximum width of 0.6 cm and were elevated or depressed. As noted previously, the grant of a separate disability rating for the Veteran’s right anterior neck status post knife wound does not violate the rule against pyramiding because the symptoms of this disability are not duplicative and do not overlap with service-connected painful residual gunshot back of head pellet gun skin/scar wound, which is related to a separate in-service incident where the Veteran was shot in the head with a pellet that has remained in his skull. Specifically, as noted in the Veteran’s service treatment records, the Veteran’s right neck scar was the result of an incident that occurred in July 1993 where the Veteran was assaulted and stabbed with a knife that resulted in symptoms of a painful neck scar with hypopigmentation and missing underlying soft tissue. Disability ratings higher than 30 percent are not warranted for the appeal period. The evidence of record does not reflect that the symptoms of the Veteran’s gunshot wound and neck scar more nearly approximate gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles) cheeks, lips), or; with four or five characteristics of disfigurement. The Board has also considered the Veteran’s scars under other diagnostic codes pertaining to scars. However, his scars are not shown to be deep (associated with underlying soft tissue damage) or cover sufficient area to warrant consideration under DC 7801 or DC 7802. The Board also notes that the Veteran does not have more than two painful or unstable scars under DC 7804. Moreover, there is no indication that there are disabling effects of the scars, other than pain, that would warrant rating under other diagnostic codes pursuant to DC 7805. Therefore, the other potentially applicable diagnostic codes do not assist the Veteran in obtaining higher disability ratings. For the foregoing reasons, disability ratings of 30 percent, but no higher, are warranted for the Veteran’s residual gunshot back of head pellet gun skin/scar wound and right anterior neck status post knife wound, respectively. As the preponderance of the evidence is against higher disability ratings, the benefit of the doubt doctrine is not otherwise for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Styer, 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.