Citation Nr: 21042767 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-03 617 DATE: July 13, 2021 ORDER Entitlement to an initial compensable rating for left ear hearing loss is denied. Entitlement to an initial compensable rating for scar (right hand) status post laceration is denied. Entitlement to service connection for a left ankle disorder is denied. FINDINGS OF FACT 1. The Veteran has had no worse than Level I hearing loss in the left ear, and the nonservice-connected right ear is assigned a designation of Level I hearing loss. 2. The Veteran's right-hand scar has not been unstable or painful, associated with underlying soft tissue damage, or measured an area of at least 144 square inches. There is no resulting functional limitation. 3. A left ankle disorder was not shown in service or proximate thereto; and, the preponderance of the evidence fails to establish that a left ankle disorder is etiologically related to active service. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for left ear hearing loss are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for an initial compensable rating for scar (right hand) status post laceration are not met. 38 U.S.C. §§ 1155; 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804, 7805. 3. The criteria for service connection for a left ankle disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Marine Corps from July 2006 to August 2014. The appeal originates from an October 2014 decision of a Department of Veterans Affairs (VA) Regional Office. The matter was remanded in June 2020 to obtain updated VA treatment records and examinations. The record reflects that updated VA treatment records were obtained as well as hearing loss, scar, and ankle examinations in October 2020. There has been substantial compliance with the Remand directives. 1. Entitlement to an initial compensable rating for left ear hearing loss. Disability ratings are determined by comparing a veteran's present symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1. 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 evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). If impaired hearing is service-connected in only one ear, the law allows for compensation for hearing loss as if both ears were service-connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non-service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, unless the non-service-connected hearing loss is the result of the Veteran's willful misconduct. See 38 C.F.R. § 3.383. To determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). An examination for hearing impairment for VA purposes must be conducted by a state licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations will be conducted without hearing aids. 38 C.F.R. § 4.85(a). A June 2014 VA examination reveals that the Veteran reported difficulty hearing and understanding people in certain situations. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: June 2014 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 10 15 10 0 9 100% LEFT 15 35 35 40 31 100% An October 2020 VA examination reveals that the Veteran reported difficulty hearing from a distance, used to using his right ear on the phone, and really has to focus to hear people. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: October 2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 20 15 15 16 100% LEFT 20 40 40 50 38 100% Evaluating the audiological test results cited above, at both the June 2014 and October 2020 VA examinations , the numeric designations of hearing impairment were Level I for the nonservice-connected right ear (per 38 C.F.R. § 4.85) and Level I for the left ear. When the aforementioned numeric designations for the right and left ears are applied to Table VII, the percentage of disability for hearing impairment is zero percent. The test also fails to show exceptional hearing loss as provided by 38 C.F.R. § 4.86. Consideration is given to the functional effects of the Veteran's left ear hearing loss. He describes difficulty hearing and understanding speech. His statements are competent and credible. However, in light of the Court's holdings in Martinak v. Nicholson, 21 Vet. App. 447 (2007) and Doucette v. Shulkin, 28 Vet. App. 366 (2017), his inability to hear or understand speech or to hear other sounds in various contexts have been sufficiently measured during the examinations and such functional effects are contemplated by the schedular rating criteria. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Based on the evidence above, an initial compensable rating for left ear hearing loss is not warranted. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an initial compensable rating for scar (right hand) status post laceration. The Veteran's disability is rated under Diagnostic Code 7805 for other scars, which provides that scars be evaluated under Diagnostic Codes 7800-04 with any other disabling effect evaluated under an appropriate diagnostic code. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7805 was not changed by the August 13, 2018, amendments. Diagnostic Code 7801 addresses burn scars or scars due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. A 10 percent rating requires an affected area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). Diagnostic Code 7802 addresses burn scars or scars due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. A 10 percent rating requires an affected area or areas of 144 square inches (929 sq. cm.) or greater. Diagnostic Code 7804 addresses unstable or painful scars. A 10 percent rating requires one or two scars that are unstable or painful. Based on the evidence, including the June 2014 and October 2020 examinations, the Veteran is not entitled to an initial compensable rating for his right-hand scar. His linear scar was noted to be well healed and approximated, not associated with underlying soft tissue damage, and was measured as 1 cm. (linear, no width) in June 2014, and 2 cm. x 0.1 cm. in October 2020. Either measurement equals far less than an area of 144 square inches. The scar has not been found to be unstable or painful, and no functional impact was noted from the scar. For instance, the October 2020 VA scars examiner specifically found the right hand scar was not painful; not tender to palpation; not unstable, including upon inspection, with frequent loss of covering of the skin over the scar; no underlying soft tissue damage; not due to burns; and did not result in functional limitation. As the right-hand scar is not associated with underlying soft tissue damage and measuring at least 144 square inches, is not unstable or painful, and has no functional impact, there is simply no basis for an increased rating under any applicable diagnostic code. The Board finds that the preponderance of the evidence is against the assignment of a compensable rating for the Veteran's right hand scar under DC 7805 as there are no other disabling effects not considered in a rating provided under DCs 7800-04. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to service connection for a left ankle disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The condition at issue is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran contends that he developed a left ankle disorder from an in-service injury. The Veteran asserted that he was conducting platoon fuel training in the summer of 2014, when another Marine fell and rolled on his ankle, and since then, the ankle has been in constant pain. The Veteran's representative appeared to assert that the Veteran an in-service left ankle injury in 2012 that was then exacerbated by another injury in 2015 (post-service). See January 2017 Statement; February 2021 Appellate Brief. The Board acknowledges the Veteran has a current left ankle disability, diagnosed as osteochondritis to include osteochondral fracture and anterior talofibular ligament tear, per the October 2020 VA examiner. Service treatment records are unremarkable for complaints, treatment, or diagnosis of a left ankle disorder throughout service. The Veteran underwent a periodic health assessment in May 2014 shortly before separation at which time the left ankle was evaluated as normal and he denied any pain or current health concerns. However, the following month, for his June 2014 Separation exam, Report of Medical History, he reported rolling his left ankle during physical therapy and having cracking occasionally. The evaluator did not indicate any left ankle disorder and stated that the Veteran was evaluated for his musculoskeletal concerns and treated conservatively with no specialty consultations required. Thus, there is some indication of in-service incurrence of a left ankle injury. Nonetheless, there is no probative nexus evidence linking the Veteran's current left ankle disability to any in-service injury. Rather, the October 2020 examiner opined that a left ankle disorder is less likely as not related to service. The examiner found that there was no objective evidence showing treatment for a left ankle condition or complaint during service and that medical treatment records failed to show that the left ankle disorder existed or developed during service. These findings are consistent with the service treatment records, which are silent for the left ankle throughout eight years of service until the Veteran's report at separation. The examiner explained that the Veteran sustained a significant post-service work injury while working as a life guard in late 2015 when he fell into bleachers and, per medical imaging, received the aforementioned diagnoses of osteochondritis dissecans involving two areas of the talar dome and a complete tear of the anterior talofibular ligaments. See also December 2020 VA Orthopedic Consult note. Given the October 2020 VA examiner's review of the claims file, personal interview of the Veteran, physical examination, and discussion of the rationale of the opinion, the Board finds the VA examiner's opinion is highly probative evidence against the claims. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). The Board notes the January 2016 VA treatment record stating that the Veteran's ligament tear was "likely chronic" from the reported in-service ankle injury. However, no rationale was offered for this opinion, such that the Board finds it is not probative in support of the claim. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As such, it is outweighed by the negative October 2020 medical opinion. Consideration is given to arguments raised by the Veteran. See February 2021 Appellate Brief. He challenges the October 2020 opinion, contending that the examiner based the opinion solely on the absence of documentation in the service treatment records. He asserts that his in-service injury was aggravated by the post-service work injury. While it is true that the absence of in-service notation does not necessarily preclude service connection, such is a permissible factor for consideration and was among others referenced in the opinion. Though the examiner did not explicitly address the report at separation of the left ankle injury, the Veteran reported it at the examination, which was considered in the examiner's review of the record. The Board again notes that the in-service injury resolved with conservative treatment during service, and approaching his separation, the left ankle was evaluated as normal with no complaint of pain, and that a left ankle disability was not clearly diagnosed until after a post-service, 2015 work injury. The Board has also considered the Veteran's personal assertion that his left ankle disorder is due to the in-service injury. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). The disability at issue is not a condition that is readily amenable to probative lay comment regarding etiology. (Continued on the next page) The Veteran is competent to report observable symptoms, but there is no indication that he is competent to etiologically link any such symptoms to a current diagnosis. He is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating his ankle disorder. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. The lay opinion is also outweighed by the highly probative October 2020 medical opinion. As the preponderance of the evidence is against finding that a left ankle disorder is related to active service, the claim must be denied. B. CHATTERJEE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alhinnawi 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.