Citation Nr: 21027309 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-01 439 DATE: May 5, 2021 ORDER A 10 percent disability rating, but no higher, for a scar associated with the service-connected right ankle disability, from February 24, 2020, is granted subject to the laws and regulations governing monetary benefits. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. FINDING OF FACT The Veteran's right ankle scar, at worst, measured 1.5 square centimeters; since February 24, 2020, the scar results in pain (burning and sensitivity) in the scar area. CONCLUSION OF LAW The criteria for a 10 percent rating, but no higher, for a scar of the right ankle are met from February 24, 2020. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, DC 7802, 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1985 to March 1995. The Veteran testified before the undersigned Veterans Law Judge during a February 2020 videoconference hearing, the transcript of which is included in the file. This appeal was previously remanded by the Board in July 2020. At that time, the Board also remanded appeals for service connection for right and left foot disorders as well as right and left knee disorders. While on remand, service connection was granted for all of the right and left foot disabilities found during an October 2020 VA examination (right and left pes planus, right and left plantar fasciitis, and right and left foot arthritis). See November 2020 Rating Decision. The Veteran has not indicated any disagreement or indicated a desire to pursue the appeal with respect to any other claimed foot disorder. Thus, the Board finds the appeal for service connection for the right and left foot disorders was satisfied and is no longer before the Board. The November 2020 Rating Decision also granted service connection for right and left knee disabilities. Therefore, the appeals for service connection for right and left knee disorders are also satisfied and are no longer before the Board. The Board observes that additional VA treatment records and examinations have been added to the claims file since the November 2020 SSOC, but they do not contain pertinent information relevant to the issue decided herein. Increased Rating Entitlement to a compensable rating for a right ankle scar. Diagnostic Codes 7800 to 7805 pertain to scars. 38 C.F.R. § 4.118. The Schedule of ratings for the skin were amended effective August 13, 2018. See 38 Fed. Reg. 32,592 (July 13, 2018). Prior to August 13, 2018, the Board will consider the former version of the diagnostic codes only; however, for the period beginning August 13, 2018 the Board will consider both the old and amended version of the diagnostic codes and consider whichever is most favorable to the Veteran. Diagnostic Code 7800 deals with scars of the head, face, or neck and is not applicable to this claim. Diagnostic Code 7801 provides for a 10 percent disability evaluation for a scar that is not of the head, face, or neck, that is deep and nonlinear (former code) or associated with underlying soft tissue damage (amended code), and that has an area of at least 6 square inches (39 sq. cm.). Higher ratings are available if larger areas are affected. Under the former code, a "deep scar" is defined as one associated with underlying soft tissue damage. Diagnostic Code 7802 provides for a 10 percent disability evaluation for a scar not of the head, face, or neck, that is superficial and nonlinear (former code) or not associated with underlying soft tissue damage (amended code) and which covers an area of at least 144 square inches (929 sq. cm.) or more. Under the former code, a "superficial scar" is defined as one not associated with underlying soft tissue damage. Under both the former and amended criteria, Diagnostic Code 7804 provides for a 10 percent disability evaluation for one or two scars that are unstable or painful. A 20 percent disability evaluation is assigned where there are three or four scars that are unstable or painful. A 30 percent disability evaluation is assigned where there are five or more scars that are unstable or painful. An unstable scar is one where there is frequent loss of skin covering over the scar. If one or more scars are both unstable and painful 10 percent is added to the evaluation. Under both the former and amended codes, pursuant to Diagnostic Code 7805, a scar may be rated on any disabling effect(s) not considered as part of Diagnostic Codes 7801 to 7804. The Veteran's scar on the right ankle is currently rated as noncompensable under DC 7802 as scars, not of the head, face, or neck, which are superficial and nonlinear. The Veteran was provided with VA examinations in January 2015, February 2017, and October 2020. The January 2015 VA examiner reported the measurements of the Veteran's scars in centimeters, and the total combined area of the scar was found to be 1.35 square centimeters. Subsequently, the February 2017 and October 2020 VA examiners noted measurements of the scar that amounted to a total combined area of 1.5 square centimeters. All of the measurements total less than 144 square inches. Thus, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating under DC 7802 because the Veteran's right ankle scar is not manifested by an area of 144 square inches or greater. The Board finds, however, that a compensable rating is warranted under Diagnostic Code 7804 for burning and sensitivity of the scar. In this regard, the Veteran offered sworn testimony that he experienced burning and sensitivity to touch in the area of the ankle scar. See Transcript page 14. The Board finds his testimony to be competent and credible. The Board acknowledges that all of the VA examiners indicated that the scar was not painful or unstable; however, the Board resolves doubt and finds that the Veteran's sworn testimony regarding burning and sensitivity in the scar area, to be credible and akin to the painful scarring intended by Diagnostic Code 7804. Diagnostic Code 7804 provides for a 10 percent rating for painful or unstable scars. The Board resolves doubt in the Veteran's favor and finds that the Veteran's reports of burning and sensitivity are of the type of pain intended by DC 7804. Thus, the Board finds that a 10 percent disability rating, but no higher, is warranted. Moreover, the Board finds that the 10 percent disability rating is warranted from February 24, 2020, the date of the Board hearing which is the first date that the Veteran reported scar symptoms akin to pain. The Board notes that during the February 2020 hearing before the Board, the Veteran indicated that his symptoms had not been the same throughout the entire appeal period but rather that his scar symptoms had worsened since he was examined in January 2015. The Board has also considered whether any other applicable diagnostic codes may provide for a higher rating and finds that they do not. In this regard, there is no indication that the Veteran's right ankle scar has any disabling effects. Thus, a rating under Diagnostic Code 7805 for disabling effects, is not warranted. In sum, the Board finds that a 10 percent disability rating, but no higher, is warranted for symptomatic scarring of the right ankle. The Board has applied the benefit of the doubt where necessary. REASONS FOR REMAND Entitlement to service connection for a bilateral hearing loss disability is remanded. VA last tested the Veteran's hearing acuity in July 2018. At that examination, a hearing loss disability, as defined by VA under 38 C.F.R. § 3.385, was not identified. Subsequently, in February 2020, the Veteran testified at a hearing before the Board noting that this hearing was getting worse and that his private treatment provider suggested to him that his hearing condition could be related to service. The Board remanded the Veteran's appeal in July 2020 offering the Veteran the opportunity to submit any private treatment records pertaining to his hearing loss disability, which potentially could show the presence of a current disability as defined by VA and a link between that disability and service. The AOJ sent the Veteran a letter requesting private treatment records in August 2020, but no records pertaining to hearing loss were subsequently submitted. The Board notes that recent VA treatment records document that on March 18, 2021, the Veteran was referred to the audiology clinic in Atlanta VA to clean out his ears, after complaints of feeling like his ears were stopped up. The Veteran noted occasional drainage of his left ear. See a March 18, 2021 VA Nursing Progress Note. Given that (1) the Veteran's disability claim has been denied based on a finding that a current disability, as defined by VA, has not been shown; (2) the Veteran's hearing acuity was last examined almost three years ago in July 2018; (3) since that time, the Veteran reported worsening hearing acuity, and complained recently of stopped up ears with a referral to the VA audiological clinic; and (4) the Veteran did not identify or submit private records pertaining to his hearing loss after the Board's last remand, the Board believes it is necessary to afford the Veteran an updated examination to assess the nature and etiology of his claimed disability. On remand, the Veteran should be offered another opportunity to submit any relevant private treatment records, and all updated VA treatment records should be associated with the file. The matters are REMANDED for the following action: 1. Obtain and associate with the file all outstanding VA treatment records. 2. Send the Veteran a letter requesting that his submit, or authorize VA to obtain on his behalf, any records of private care for his claimed hearing loss disability. All appropriate steps should be taken to obtain identified records. 3. Schedule the Veteran for an audiological examination. Upon review of the record and audiometric testing, the examiner should respond to the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran has a current hearing loss disability in either ear that had onset in, or is otherwise related to his period of active duty service? If hearing loss is present, but is determined to be due to ear disease other than sensorineural hearing loss, the examiner should explain as much, and determine whether the underlying disease at least as likely as not had onset in, or is otherwise related to his period of active duty service. All opinions should be supported by a medical explanation or rationale. 4. Then, readjudicate the issue on appeal. If the benefit sought remains denied, send the Veteran and his representative a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Donna D. Ebaugh, 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.