Citation Nr: 21022889 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 14-24 858 DATE: April 19, 2021 ORDER The appeal seeking a higher rating for degenerative disc disease (DDD) of the thoracolumbar spine is dismissed. A rating higher than 10 percent for limitation of extension of the left knee is denied. A compensable rating for bilateral hearing loss is denied. A rating higher than 10 percent for shrapnel wound scar of the upper left chest is denied. A compensable rating for residual scars from right hip replacement and shrapnel wound scar is denied. FINDINGS OF FACT 1. Subsequent to a December 2018 Board of Veterans’ Appeals (Board) remand, the Veteran opted into the Appeals Modernization Act (AMA) review system by submitting a VA Form 20-0996, Decision Review Request, Higher Level Review, which was received in March 2021; thus, the appeal seeking an increased rating for DDD of the thoracolumbar spine cannot be adjudicated in the Legacy appeals system. 2. The Veteran’s left knee did not have limitation of extension to 15 degrees or less throughout the appeal period. 3. Throughout the period on appeal, audiometric testing revealed, at worst, Level I hearing impairment in both ears. 4. The Veteran's superficial, linear shrapnel wound scar of the upper left chest has been characterized by pain, but not instability. 5. The Veteran's superficial, linear residual scar from right hip replacement has been characterized by pain, but not instability CONCLUSIONS OF LAW 1. The Board lacks jurisdiction to adjudicate the appeal seeking an increased rating for DDD of the thoracolumbar spine. U.S.C. § 7105; 38 C.F.R. §§ 3.2400, 19.52, 20.202, 20.204. 2. The criteria for a rating higher than 10 percent for limitation of extension of the left knee are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5261. 3. The criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.85, 4.86, DC 6100. 4. The criteria for a rating higher than 10 percent for shrapnel wound scar of the upper left chest are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.118, DC 7804. 5. The criteria for a compensable rating for residual scars from right hip replacement and shrapnel wound scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.118, DC 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had served on active duty from June 1975 to August 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board remanded the claims for further development. A review of the record shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for further review. Dismissal The Appeals Modernization Act (AMA) applies to all claims for which VA issues notice of an initial decision on or after the effective date of the AMA, which is February 19, 2019. See 38 C.F.R. §§ 3.2400, 19.2. For decisions issued prior to February 19, 2019, the AMA can only apply if an appellant opts into the system through the Rapid Appeals Modernization Program (RAMP) or elects to proceed under the AMA after the issuance of a statement of the case (SOC) or Supplemental SOC (SSOC). 38 C.F.R. § 3.2400(c). The Board notes that during the pendency of the December 2018 Board remand, the RO issued a SSOC addressing the back disability which was increased to 20 percent effective December 11, 2019 and 40 percent effective September 8, 2020. Prior to the recertification of the appeal to the Board under the legacy system (the old framework), the Veteran elected to participate in the AMA review system, by submitting a May 19, 2020 VA Form 20-0996 Decision Review Request, before the appeal had been re-activated at the Board. The Veteran filed a March 2021 Request for a Higher-Level Review for the claim for an increased rating for the back disability. Thus, the appeal of the issue of a higher rating for the back disability must be withdrawn from the Legacy appeal process. 38 C.F.R. § 3.2400(d). Although the claim is currently awaiting the Agency of Original Jurisdiction to issue its Higher-Level Review decision, the Board does not have jurisdiction over this issue in the Legacy appeals system, and it is dismissed. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Left knee limitation of extension When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown,8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Pain may cause a functional loss but itself does not constitute functional loss; rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell, 25 Vet. App. at 33, 43. Even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a ; a separate or higher rating under §§ 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran’s left knee limitation of extension is rated under DC 5261, extension of the leg limited to 5 degrees is rated noncompensable (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. Normal range of motion for extension of the of the knee is to 0 degrees. 38 C.F.R. § 4.71a, Plate II. As relevant here, the Veteran was afforded VA examinations for his left knee in November 2013 and December 2019. A December 2019 VA examination report shows that the Veteran’s left knee extension was limited to 0 degrees (no limitation). Limitation of extension did not exhibit pain. Repetitive use testing results showed limitation to 10 degrees. There was no ankylosis. The November 2013 VA examination report also shows that the Veteran’s left knee extension was not limited and there was no evidence of painful motion. The Veteran was able to perform repetitive use testing for with no loss of range of motion; however, excess fatiguability and pain on movement were noted. Upon review of the evidence, to include private and VA treatment records, the Board finds that the preponderance of the competent evidence does not support the grant of higher disability ratings than 10 percent for the Veteran’s left knee limitation of extension. The provisions of 38 C.F.R. §§ 4.40 and 4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, as cited in DeLuca v. Brown, 8 Vet. App. 202 (1995), have been considered and were applied based on additional joint limitation. A higher evaluation of 20 percent is not warranted as the evidence does not show limitation of extension between 15 and 19 degrees. The Veteran’s left knee limitation of flexion and left knee instability are already rated separately and that ratings are not before the Board because they are currently pending higher level review before the AOJ. Bilateral hearing loss The Veteran contends that his hearing loss warrants a higher rating as he is in receipt of a noncompensable, or zero percent disability rating, for the entire period on appeal. For the reasons discussed below, the Board finds that the weight of the evidence is against a compensable disability rating for bilateral hearing loss. Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s hearing loss has been evaluated under 38 C.F.R. § 4.85, DC 6100. This diagnostic code sets out the criteria for evaluating hearing impairment using pure tone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85, and there is no room for subjective interpretation. See Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, and as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second, or hertz (Hz). The rating criteria for hearing loss establish 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. The rows in Table VI (38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the row appropriate for the percentage of discrimination and the column appropriate to the puretone decibel loss. The percentage disability evaluation is found from Table VII (38 C.F.R. § 4.85) by intersecting the row appropriate for the numeric designation for the ear having the better hearing acuity and the column appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level of “V” and the poorer ear has a numeric designation Level of “VII,” the percentage evaluation is 30 percent. 38 C.F.R. §§ 4.85(b), 4.87. In addition, under 38 C.F.R. § 4.86(a), when the puretone threshold at each of the four specified frequencies, 1000, 2000, 3000, and 4000 Hz, is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Under 38 C.F.R. § 4.86(b), when the pure tone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results is the higher numeral. That numeral will then be elevated to the next higher Roman numeral. A December 2019 VA examination report that the Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels were as follows: HERTZ 1000 2000 3000 4000 Average Speech LEFT 25 30 55 55 41 100 RIGHT 25 55 65 65 53 100 Applying the results to Table VI, the findings yield a numeric designation of Level I hearing acuity in both ears. Combining these levels according to Table VII results in a noncompensable (zero percent) rating. A November 2013 VA examination reveals that Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels were as follows: HERTZ 1000 2000 3000 4000 Average Speech LEFT 25 35 50 40 37.5 98 RIGHT 25 45 60 60 47.5 96 Applying the results to Table VI, the findings yield a numeric designation of Level I hearing acuity in both ears. Combining these levels according to Table VII results in a noncompensable rating. After a review of all of the evidence, lay and medical, the Board finds that the weight of the evidence is against a compensable disability rating for the entire increased rating period on appeal. The Veteran’s level of hearing loss disability, as reflected by audiometric test scores and speech recognition test scores, does not establish entitlement to a compensable disability rating for bilateral hearing loss for any part of the increased rating period. The Board acknowledges the statements of the Veteran regarding the effect of his bilateral hearing loss disability on his daily life and his contention that his hearing loss disability is worse than is reflected by the VA audiological examination results. However, the Board finds that these statements alone do not warrant a higher disability rating. Indeed, as noted above, the audiometric test scores and speech recognition scores weigh against the assignment of a higher rating. Moreover, as noted above, the rating of hearing loss disability involves the mechanical application of the rating schedule to numeric designations assigned to official audiometric results. See Lendenmann, 3 Vet. App. at 345. Further, there is nothing to indicate that the either the 2013 or 2019 VA audiological examinations are either unreliable or otherwise inadequate. Indeed, they are the most probative evidence of record. For these reasons, the claim for a compensable disability rating for bilateral hearing loss is denied for the entire increased rating period on appeal. The preponderance of the evidence is against this claim; therefore, the benefit-of-the-doubt doctrine does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Shrapnel wound scar of the upper left chest The Veteran contends that he is entitled to a rating higher than 10 percent for his shrapnel wound scar of the upper left chest. In evaluating skin and scar residuals, the Board notes that during the appeal period, changes were made to certain DCs under 38 C.F.R. § 4.118. Effective August 13, 2018, VA amended its regulations governing skin disabilities. 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). As the Veteran filed his claim before the August 13, 2018 effective date, the Board will consider whether either the old or new rating criteria is more favorable to the Veteran. Under the old rating criteria, DC 7805 provided that other scars (including linear scars) and other effects of scars evaluated under DC 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under DC 7800-7804 under an appropriate DC. 38 C.F.R. § 4.118, DC 7805. The Board notes that this DC is largely unchanged under the new amendments apart from the replacement of the phrase "(including linear scars)" with "and other effects of scars evaluated under DC 7800, 7801, 7802, or 7804." 38 C.F.R. § 4.118, DC 7805 (August 13, 2018). DC 7800 (which was unchanged by the 2018 amendments), contemplates scars of the head, face, or neck. 38 C.F.R. § 4.118, DC 7800. Therefore, it is not applicable here. The pre-amended DC 7801 provided disability ratings for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear. 38 C.F.R. § 4.118, DC 7801 (2017). In contrast, the amended DC 7801 contemplates burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801 (August 13, 2018). Both the old and new criteria provide that a 10 percent rating is awarded when the area of the scar(s) covers at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). A 20 percent rating is warranted when the area of the scar(s) covers at least 12 square inches (77 square centimeters) but less than 72 square inches (456 square centimeters). A 30 percent rating is warranted when the area of the scar(s) covers at least 72 square inches (456 square centimeters) but less than 144 square inches (929 square centimeters). A 40 percent rating is assigned when the area of the scar(s) covers at least 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, DC 7801. Note (1) to the pre-amended DC 7801 stated that a deep scar is one associated with underlying soft tissue damage. Prior to August 13, 2018, DC 7802 provided rating criteria for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear. 38 C.F.R. § 4.118, DC 7802 (2017). The amended version is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802 (August 13, 2018). Both versions state that a 10 percent disability rating is warranted when the area of the scar covers 144 square inches (929 square centimeters) or greater. Under both the old and new rating criteria, DC 7804 provides disability ratings for scars that are unstable or painful. 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. A 30 percent rating is warranted for five or more scars that are unstable or painful. Note (1) states 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, an additional 10 percent should be added to the evaluation based on the total number of unstable or painful scars. Note (3) states that scars evaluated under DC 7800, 7801, 7802, or 7805 may also receive an evaluation under this DC, when applicable. 38 C.F.R. § 4.118, DC 7804. In every instance where the schedule does not provide a 0 percent rating for a DC, a 0 percent rating will be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. Any disabling effects of other scars (including linear scars), and other effects of scars rated under DC 7800, 7801, 7802, and 7804 not considered in a rating provided under DC 7800 through 7804 are to be rated under an appropriate DC. 38 C.F.R. § 4.118, DC 7805. A review of the record shows that a rating higher than 10 percent is not warranted for the shrapnel wound scar of the upper left chest. In this regard, the Veteran underwent VA examinations in November 2013, December 2019, and October 2020. The November 2013 VA examination showed a linear scar located on the Veteran’s anterior trunk that measured 1 cm by .1 cm. and was superficial. The examiner noted that the scar was painful, but not unstable. No limitation of function was noted. The December 2019 VA examination showed a linear scar located on the Veteran’s anterior trunk that measured 1.4 cm by .3 cm. and was superficial. The examiner noted that the left chest wall (residual shrapnel) interferes with occupational physical activities that require significant lifting and pushing overhead. The examiner also noted that the scar covered approximately .42 cm of the anterior trunk without underlying tissue damage. The Veteran reported chronic residual pain that was painful when he pushed on it. The October 2020 VA examination showed a linear scar located on the Veteran’s anterior trunk that measured 1.5 cm by .3 cm and was superficial. The examiner noted that the scar was painful, but not unstable. The examiner noted that the scar covered approximately .45 square cm of the anterior trunk without underlying tissue damage. As indicated by the medical evidence, the Veteran's scar on his left chest scar was less than 77 square centimeters, with the scar covering approximately .45 square centimeters. It had no visible or palpable tissue loss and no characteristic of disfigurement, to include hyperpigmentation, induration and inflexibility, or abnormal texture in the scar. Therefore, a higher rating is not warranted under any of the rating codes for scars. DC 7801 requires area or areas of at least 77 square centimeters but less than 465 square centimeters. DC 7802 does not have a rating greater than 10 percent, and DC 7804 requires three or four scars that are unstable or painful. A such, the preponderance of the evidence reflects that the criteria for a rating higher than 10 percent for the Veteran's service-connected anterior trunk scar has not been met or more nearly approximated. 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. § 4.3. Residual scars from right hip replacement and shrapnel wound scar The Veteran has a separate noncompensable rating under DC 7805 for residual scars from his right hip replacement and the shrapnel wound scar discussed above. Although not specifically requested, the December 2019 VA examination also evaluated a right hip scar. Regarding the right hip scar, the Veteran reported he cannot sleep on his right side due to his right hip scar pain which gets to be severe and lasts until he releases the pressure. Examination showed one lateral scar that measured 15 cm by .3 cm. The examiner noted that the scar covered approximately 4.5 square cm. of the right lower extremity without underlying tissue damage. Based on the evidence, a compensable rating is not warranted as the right hip scar was less than 77 square centimeters, with the scar covering approximately 4.5 square centimeters. It had no visible or palpable tissue loss and no characteristic of disfigurement, to include hyperpigmentation, induration and inflexibility, or abnormal texture in the scar. Therefore, a higher rating is not warranted under any of the rating codes for scars. DC 7801 requires area or areas of at least 77 square centimeters but less than 465 square centimeters. DC 7802 requires area or areas of at least 929 square centimeters, and DC 7804 requires one or two scars that are unstable or painful. However, as noted above, the Veteran’s shrapnel wound scar of the upper left chest is rated at 10 percent; therefore, the two painful scars are already contemplated. To meet the criteria for the next higher rating under this DC, the evidence would have to show at least three unstable or painful scars. Therefore, the Board concludes that a compensable rating for residual scars from right hip replacement and shrapnel wound scar is not warranted and the claim is denied. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hemphill 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.