Citation Nr: 21041880 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-52 124 DATE: July 10, 2021 ORDER Entitlement to service connection for Meniere's disease is granted. Entitlement to a rating of 10 percent under diagnostic code (DC) 7800, but no higher, for the Veteran's service-connected forehead scarring is granted. FINDINGS OF FACT 1. It is at least as likely as not that the Veteran's diagnosed Meniere's disease is etiologically related to in-service noise trauma. 2. The characteristics of the Veteran's service-connected scars mostly closely resemble surface contour of scar elevated or depressed on palpitation. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for Meniere's disease have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303 2. The criteria for entitlement to a rating of 10 percent under DC 7800, but no higher, for the Veteran's service-connected forehead scarring have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10, 4.118, DC 7800. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1982 to July 1991. 1. Entitlement to service connection for Meniere's disease Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. To establish service connection, the evidence must show competent evidence of (1) a present disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the presence of a disability at any time during the claim process or relatively close thereto can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a non-service-connected disorder that is aggravated by a service-connected disability. 38 C.F.R. § 3.310(b). Compensation may be provided for the degree of disability over and above the degree of disability existing prior to aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the veteran. 38 U.S.C. § 5107(b). The Veteran is currently service-connected for tinnitus and left ear hearing loss, and he has claimed that his Meniere's disease is related to these service-connected disorders. December 2016 private medical records reflect that the Veteran sought treatment for acute vertigo, and the treating physician noted "[p]ossible peripheral lesion on right side indicated by unilateral caloric weakness of 23 [percent] in the right ear." The physician further noted that central compensation had possibly occurred. The Veteran submitted a May 2017 disability benefits questionnaire that noted a diagnosis of Meniere's syndrome. The private physician indicated that tinnitus and hearing impairment with vertigo were attributable to Meniere's syndrome. In June 2017, a VA examiner opined that Meniere's disease is less likely than not related to the Veteran's service-connected disorders, explaining that Meniere's disease is a physical condition that can cause hearing loss and tinnitus, but that the relationship is one-way and the reverse is not true. The examiner further explained that the Veteran's service-connected tinnitus and hearing loss from acoustic trauma is not related to Meniere's disease as they preceded the diagnosis of Meniere's disease. By contrast, a July 2017 letter from a private audiologist notes that Meniere's disease has many possible etiologies, including an abnormality in fluid volume in the ear. The private audiologist opined that the Veteran's diagnosis of Meniere's disease is at least as likely as not etiologically related to his acoustic trauma during service. In September 2017, the same VA examiner that previously opined regarding the Veteran's Meniere's disease claimed that the July 2017 private letter was based on speculation. The examiner agreed that Meniere's disease is related to fluid in the ear, but opined that fluid build-up in the ear has no relationship to acoustic trauma and determined that Meniere's disease is less likely than not related to service. In April 2021, the Veteran submitted four medical articles related to Meniere's disease specifically linking noise exposure to the development of Meniere's disease many years later, and noting more severe inner ear lesions after professional exposure to gunfire. In this case, the evidence of record is at least in relative equipoise as to whether the Veteran's Meniere's disease is etiologically related to his service. The claims file contains conflicting opinions between a VA examiner and a private audiologist, and none of the opinions contains superior rationale for the conclusions reached. However, the Veteran has submitted medical articles linking Meniere's disease to gunfire and noise exposure, and noting more severe inner ear lesions. As noted above, December 2016 private medical records do indicate that the Veteran has a possible peripheral lesion, but does not provide any context ot determine whether the lesion is more severe than normal. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's diagnosed Meniere's disease is at least as likely as not etiologically related to acoustic trauma during service. Entitlement to service connection for Meniere's disease is warranted. 2. Entitlement to a rating of 10 percent under DC 7800, but no higher, for the Veteran's service-connected forehead scarring Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Relevant regulations do not require that all cases show all findings specified by the Schedule; however, findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7, 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In establishing an appropriate initial assignment of a disability rating, the proper scope of evidence includes all medical evidence submitted in support of the veteran's claim. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an assigned disability rating has been challenged or appealed, it is possible for a veteran to receive a staged rating. A staged rating is an award of separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Under DC 7800, 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 warrant a 10 percent rating with one characteristic of disfigurement. A 30 percent rating is warranted with 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 warranted with 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 warranted with 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. Note (1) indicates that the 8 characteristics of disfigurement for purposes of evaluation under Diagnostic Code 7800 are: a scar 5 or more inches (13 or more cm.) in length; a scar at least one-quarter inch (0.6 cm.) wide at widest part; the surface contour of a scar is elevated or depressed on palpation; a scar adherent to underlying tissue; hypo-or hyper-pigmented scarring in an area exceeding six square inches (39 sq. cm.); abnormal skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); missing underlying soft tissue in an area exceeding six square inches (39 sq. cm.); and skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Note (5) indicates the characteristics of disfigurement may be caused by one scar or by multiple scars; the characteristics required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. The Veteran's service-connected scarring is currently rated as noncompensable under DC 7800, and 10 percent disabling under DC 7804. The Board notes that the Veteran has requested an increased rating under DC 7804. See April 2021 Board Hearing. However, this is the maximum rating for 2 scars which are unstable or painful. During a March 2018 VA examination, the examiner noted a scar on the Veteran's right forehead due to a cyst removal. The examiner noted that the Veteran had one scar that was painful but not unstable, and measured 2.5 centimeters by 0.1 centimeters. The examiner noted no elevation, depression, adherence, or missing soft tissue; no abnormal pigmentation; and no instability. The examiner did note tenderness to palpitation. The Board notes that the claims file contains a photograph of the Veteran's scar from the March 2018 VA examination, and the photograph appears to reflect related elevation. May 2018 VA treatment records reflect that the Veteran's scarring was examined, and further reflects that the Veteran has two related scars. His linear horizontal scar is 17 millimeters by 3 millimeters; and his vertical linear scar is 10 millimeters. The examiner also noted both scars were stable without any induration. February 2020 VA treatment records reflect that the Veteran reported pain in both scars. The linear horizontal scar is 1.5 centimeters long and 2 millimeters wide; the vertical linear scar is 5 millimeters by 3 millimeters. The examiner noted that the vertical scar is pitted and may need filler. During the April 2021 Board hearing, the Veteran testified that both of his scars are painful and cause emotional distress. The Veteran is competent to report his symptomology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds these statements credible and probative. In this case, the most favorable measurements of record indicate a linear horizontal scar that is 2.5 centimeters by 0.3 centimeters, and a linear vertical scar that is 0.5 centimeters by 0.3 centimeters. Additionally, there is evidence that both scars are painful, and that the vertical scar is pitted. Finally, the March 2018 photograph appeared to show a scar with elevations. The Board finds that the characteristics of the Veteran's scars most closely resemble surface contour elevated or depressed upon palpitation. The March 2018 VA examiner noted tenderness upon palpitation, and February 2020 VA treatment records reflect a pitted vertical scar. Additionally, the Veteran testified that his scar is sensitive to pressure, for example while sleeping or wearing a helmet, and that "it deepens the pitted and the scar...just stays depressed like that when there is pressure on it." Finally, the March 2018 photograph appears to show elevation even without palpitation. Because the Veteran's scars mostly closely resemble the third characteristic of disfigurement, a rating of 10 percent disabled is warranted under DC 7800. In the absence of evidence of visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or two or three characteristics of disfigurement, a rating in excess of 10 percent is not warranted. 38 C.F.R. § 4.118. As noted above, the Veteran is in receipt of a 10 percent rating under DC 7804. The record reflects that he has two service-connected scars that are painful but are not unstable. In the absence of evidence three or four service-connected scars that are painful or unstable, a rating in excess of 10 percent under DC 7804 is not warranted. Id. Furthermore, the Board acknowledges the Veteran's report that his scarring causes embarrassment and self-confidence. The Veteran was advised of his right to file a secondary service connection claim for an acquired psychiatric disorder if he believes his symptoms rise to a compensable level. See Morgan v. Wilkie, 31 Vet. App. 162 (2019). T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Howell, 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.