Citation Nr: 21041980 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 14-20 268 DATE: July 10, 2021 ORDER Entitlement to a compensable rating for scars of the right knee and left thigh is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for recurring ear infections is remanded. FINDING OF FACT During the period on appeal, the Veteran has had stable scars on each lower extremity, only one of which is painful. CONCLUSION OF LAW The criteria for a compensable rating for scars of the right knee and left thigh have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Code (DC) 7800-7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1980 to September 1984. This matter was previously before the Board in May 2019, at which time it denied the issues on appeal. The Veteran appealed those denials to the Court of Appeals for Veterans Claims (Court). In November 2020, the Court vacated the Board's prior decisions captioned above and remanding those claims for further development. Specifically, the Court noted that favorable evidence, to include the Veteran's April 1980 and June 1980 audiometry, was not explicitly mentioned; that the Board did not consider the Veteran's statement of sinus symptoms since his in-service motor vehicle accident, and that secondary service connection was raised by the record but not explored. Having now considered these issues, the Board finds that there has been substantial compliance with the Court's remand directives. Increased Rating 1. Entitlement to a compensable rating for scars of the right knee and left thigh The Veteran is currently rated under DC 7804 and 7802. The Veteran claims a rating in excess of 10 percent, based on the CAVC's finding that entitlement to compensation under DC 7801 was not adequately discussed in the Board's May 2019 Decision. Here, the Board finds that a higher rating is not warranted. As an initial matter, the Board has adopted new, revised, diagnostic criteria for skin disorders, published on July 13, 2018. In claims pending on August 13, 2018, the Board will apply the scheme which is more favorable to the Veteran. Here, the Board applies the scheme in effect prior to August 13, 2018. The Veteran currently receives a 10 percent rating for his right knee and left thigh scars, under the pre-August 13, 2018 38C.F.R. §4.118, DC 7802. He also receives noncompensable ratings under DC 7805 for scars of the right knee and of the left knee. The DC criteria instruct to evaluate any disabling effect(s) not considered in a rating provided under DCs 7800-04 under an appropriate DC. Thus, in order to warrant a compensable rating for such scars, the evidence must show that the scars are: Deep and nonlinear, covering an area or areas of at least 6 square inches (39 cm sq.) but less than 12 square inches (77 sq. cm) (10 percent under DC 7801); Deep and nonlinear, covering an area or areas of at least 12 square inches (39 cm sq.) but less than 72 square inches (77 sq. cm) (20 percent under DC 7801); One or two in number that are unstable (i.e. characterized by frequent loss of skin covering) or painful (10 percent under DC 7804); One or two in number that are unstable and painful (20 percent under DC 7804, Note (2)); or Three or four in number that are unstable or painful (20 percent under DC 7804). 38 C.F.R. § 4.118 In this case, DCs 7800 (scars of the head, face, or neck) and 7801 (deep and nonlinear burn scars or scars due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage), are not for application. Indeed, as recorded in his December 2016 C&P examination report and his April 2017 DBQ, both of the scars on appeal in this matter are linear. Thus, regardless of the depth of the scars, or any other characteristics, DC 7801 cannot be for application. DC 7802 is not for application because according to his December 2016 C&P report, the Veteran's scars on his lower extremities are linear. Therefore, the Veteran's only recourse for a higher rating is DC 7804, which awards a 10 percent rating for a linear scar that is either unstable or painful, and a 20 percent rating if the scar is both unstable and painful. Here, a 20 percent rating is not warranted because the Veteran's scars, while painful, are not unstable. Indeed, there is no indication of record that any of the Veteran's left or right knee scars are characterized by frequent loss of skin covering. The Veteran reported to his December 2016 C&P examiner that the only painful scar he has is the left medial thigh scar. While the Veteran reported to this examiner that the scar restricts motion, there is no indication that it is unstable. The examiner specifically indicated that all scars were stable. In considering the appropriate disability ratings, the Board has considered the Veteran's statements that his disabilities are worse than the ratings he currently receives. Specifically, the Veteran reports pain on use of the left leg, affecting his walking speed, and it impairs his ability to sit and do desk work. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination and treatment reports) directly address the criteria under which this disability is evaluated. Lastly, while the issue of entitlement to TDIU is on appeal, this issue is currently in remand status, and not currently ripe for adjudication. The Board finds that any functional impairment caused by the Veteran's left knee scar is compensated in his current rating. Accordingly, a higher rating is denied. 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. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded 2. Entitlement to service connection for sinusitis is remanded. 3. Entitlement to service connection for recurring ear infections is remanded. Unfortunately, remand is warranted to comply with the directives of the CAVC's November 2020 decision. The Board cannot make a fully-informed decision on the above issues because no VA examiner has opined whether the Veteran's bilateral hearing loss is proximately related to his slight high frequency hearing loss noted in-service, whether his recurring ear infections are related to his sinusitis, or whether his sinusitis is related to the facial trauma sustained from an in service motor vehicle accident. Bilateral Hearing Loss Negative nexus opinions of record, dated April 2014 and July 2019, did not consider audiometry from April 1980 and June 1980. While the Veteran's July 2019 examiner opined that the Veteran's hearing thresholds did not worsen beyond the required 10 dB, the examiner did not cite "all evidence of record that may relate the Veteran's hearing loss to service." See Hensley v. Brown, 5. Vet. App. 155,160 (1993). This evidence, from the beginning of the Veteran's service, must be considered when determining whether a permanent threshold shift in service occurred. Sinusitis The Veteran submitted a statement in April 2013 in which he stated that in 1981, he was involved in a car accident in which he sustained a deviated septum. Following the accident, he received a rhinoplasty in Guam in approximately 1981 or 1982. Two days after the accident, the Veteran was seen for nasal drainage. Ever since, he has suffered from sinus problems. The December 2016 negative nexus opinion of record was rendered without mention of this statement of continuity. On remand, the examiner must discuss this statement in determining whether the Veteran's sinus problems are at least as likely as not related to service or any service-connected disability, to include the in-service car accident. Recurring Ear Infections The Veteran has suffered from recurring ear infection since 2009. Yet, examination thus far has not considered whether these ear infections are proximately caused by his sinusitis. Secondary service connection being raised by the record, further examination is needed to determine whether such a nexus exists. The matters are REMANDED for the following action: 1. Add all outstanding VA treatment records not currently associated with the Veteran's claims file. If the Veteran has obtained treatment outside of VA, the Veteran should be afforded an opportunity to add any applicable records. 2. Schedule the Veteran for a VA hearing loss examination. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide an opinion as to whether the Veteran's hearing loss is related to active duty service. In providing this opinion, it would be helpful if the examiner discussed whether there was a permanent in-service shift in hearing thresholds? All opinions must be supported with an adequate rationale. In providing this opinion, the examiner is requested to specifically the Veteran's April 1980 and June 1980 audiometric examinations. 3. Schedule the Veteran for a VA examination of his sinusitis. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide an opinion as to whether the Veteran's sinusitis at least as likely as not related to any incident in service, including his in-service car accident. In providing the requested opinion, the examiner should consider the Veteran's description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 4. Schedule the Veteran for a VA examination of his recurring ear infections. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (a) Is the Veteran's recurring otitis media at least as likely as not proximately due to, or aggravated by i.e., worsened beyond its natural progression, by his sinusitis? (b) Is the Veteran's recurring otitis media at least as likely as not related to any incident in service? B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Maskatia