Citation Nr: 22049321 Decision Date: 08/30/22 Archive Date: 08/30/22 DOCKET NO. 14-29 253A DATE: August 30, 2022 ORDER A rating in excess of 20 percent for a splenectomy is denied. A compensable rating for a scar, mid abdomen s/p splenectomy ("spleen scar") is denied. A compensable rating for a scar, right groin s/p hernia repair ("hernia scar") is denied. A separate rating of 10 percent, but not in excess thereof, for painful scars from February 15, 2019 to May 25, 2022 is granted. A compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a left knee disability. FINDINGS OF FACT 1. The Veteran's splenectomy is assigned a 20 percent rating, the maximum rating authorized under DC 7706, and the evidence does not reflect any residuals rise to the level of separately compensable complications. 2. The Veteran's spleen scar has not manifested to the point that total scarred areas cover at least 6 square inches. 3. The Veteran's hernia scar has not manifested to the point that total scarred areas cover at least 6 square inches. 4. From February 15, 2019 to May 25, 2022, the Veteran's hernia and spleen scars were painful but not unstable. 5. The Veteran's bilateral hearing loss has manifested no worse than Level I hearing impairment in both ears. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a splenectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.117, Diagnostic Code (DC) 7706. 2. The criteria for a compensable rating for a spleen scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.118, DC 7801. 3. The criteria for a compensable rating for a hernia scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.118, DC 7801. 4. The criteria for a rating of 10 percent, but not in excess thereof, for painful scars from February 15, 2019 to May 25, 2022 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.118, DC 7804. 5. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 5107; 38 C.F.R. § § 3.102, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from July 1985 to May 1989 and from November 1989 to March 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal from the rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran testified before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. In a June 2021 letter, the Veteran was notified that the VLJ who conducted the hearing was no longer employed at the Board. Pursuant to 38 U.S.C. §7107(c), the Veteran was offered an opportunity to testify at a hearing before a different VLJ and was instructed that he had 30 days from the date of the letter to respond. As the Veteran has not responded to the June 2021 letter and has not otherwise indicated a desire to appear at a new hearing before a different VLJ, the Board will proceed with adjudication of the Veteran's claims. These matters were previously before the Board in December 2019 and August 2021, where they were remanded for additional development. The Board finds that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Increased Rating Disability ratings are determined by applying the criteria set forth in the schedule of ratings. The percentage ratings are based on the average impairment of earning capacity, and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings apply under a single diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. As such, the Board must consider all potentially applicable diagnostic codes when rating a Veteran's disability. However, evaluation of the same manifestation of the same disability under various diagnoses, otherwise known as "pyramiding" is to be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Additionally, if the positive evidence supporting a claim and the negative evidence indicating a denial of the claim is relatively equal, the Veteran is entitled to the benefit of the doubt. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3. Accordingly, any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. Id. 1. Entitlement to a rating in excess of 20 percent for service-connected splenectomy The Veteran contends that an increased rating is warranted, as his symptoms have worsened. The Veteran's splenectomy is currently assigned a 20 percent rating under the appropriate DC 7706. He is already in receipt of the maximum schedular rating available under DC 7706. A Note under DC 7706 provides that splenectomy complications such as systemic infection with encapsulated bacteria are separately rated. 38 C.F.R. § 4.117, DC 7706. The Board must therefore consider whether a separate rating is warranted. In the January 2014 and May 2022 VA examinations to assess the Veteran's splenectomy, the examiner noted the Veteran does not require continuous medication for control of a hematologic or lymphatic condition, including anemia or thrombocytopenia. He does not have anemia or thrombocytopenia, however, there are symptoms of easy fatigability and shortness of breath, with recurring infections that occur at least once every 6 weeks. Diagnostic Testing revealed his hemoglobin level measured at 14.3mg/100ml. During the February 2019 Board hearing, the Veteran testified to feeling his abdomen muscles weakening, but no restrictions to heavy lifting or anything like that or having any debilitations. The weight of the evidence during the appeal period is not sufficient to meet the criteria for a separate compensable rating. The Veteran is already separately rated for scars due to his splenectomy, and the Board notes that while the Veteran is prone to recurring infections for his condition, there is no evidence the Veteran suffers from systemic infection with encapsulated bacteria that would warrant a separate rating. Furthermore, although the Veteran complained of weakness, fatigue, and shortness of breath, there is no evidence that these conditions rose to a compensable level of chronic fatigue syndrome as shown under 38 C.F.R. § 4,88, DC 6354. Therefore, a separate rating is not warranted. The Board notes that the lay assertions of the Veteran have been considered. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). To the extent that the Veteran has argued that separate ratings for his splenectomy is warranted, these assertions are outweighed by more probative evidence provided by the examination of a qualified medical professional. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, his lay statements do not provide any basis upon which to assign any higher rating. The Board concludes that a separate rating for service-connected splenectomy is not warranted; and the claim is denied. In reaching this determination, the Board has considered the doctrine of giving the benefit of the doubt to the Veteran under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102 but does not find that the evidence is of such approximate balance as to warrant its applications. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Entitlement to a compensable rating for a spleen scar 3. Entitlement to a compensable rating for a hernia scar The Veteran contends that compensable ratings are warranted for his spleen scar and hernia scars. The Veteran's spleen scar is currently rated as noncompensable under DC 7799-7804 prior to May 25, 2022 and rated under DC 7801 thereafter. His hernia scar is currently rated as noncompensable under DC 7338-7805 prior to May 25, 2022 and rated under DC 7801 thereafter As an initial matter, the Board notes that scars are generally rated under DCs 7800-7805. A review of the file reflects that the Veteran's scar does not involve a burn scar or disfigurement of the head, face, or neck; therefore, consideration under DC 7800 is not warranted. Under DC 7801, burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear; area or areas of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters) warrants a 10 percent rating; area or areas of at least 12 square inches (77 square centimeters) but less than 72 square inches (465 square centimeters) warrants a 20 percent rating; area or areas of at least 72 square inches (465 square centimeters) but less than 144 square inches (929 square centimeters) warrants a 30 percent rating; and area or areas of 144 square inches (929 square centimeters) or greater warrants the maximum 40 percent rating. 38 C.F.R. § 4.118, DC 7801. Under DC 7802, burn scars or scars due to other causes, not of the head, face, or neck, that are not superficial and nonlinear: area or areas of 144 square inches (929 square centimeters) or greater warrants a 10 percent rating. 38 C.F.R. § 4.118, DC 7802. A superficial scar is one not associated with underlying soft tissue damage. Id., Note (1). Under DC 7804, a 10 percent rating is warranted for 1 or 2 scars that are unstable or painful. A 20 percent rating is warranted for 3 to 4 scars that are unstable or painful and a 30 percent rating is warranted for 5 or more scars that are unstable or painful. Note (1) to Code 7804 provides 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, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this Code, when applicable. Id. The Board notes that the rating criteria for evaluating skin were amended, effective August 13, 2018. See 83 Fed. Reg. 32592 (July 13, 2018). Diagnostic Codes 7801 and 7802 were amended to characterize multiple scars by 6 body zones affected rather than by extremity. Additionally, two or more skin conditions may be combined in accordance with § 4.25 only if separate areas of the skin are involved. If two or more skin conditions involve the same area of skin, then only the highest evaluation shall be used. See 38 C.F.R. § 4.118(b) (August 13, 2018). Relevant to the instant matter, regarding DC 7801, DC 7802 and DC 7805, the only changes in these criteria were the following: DC 7801 removed the reference "deep and nonlinear" and replaced it with "underlying soft tissue damage"; and DC 7802 removed "superficial and nonlinear" and replaced it with the mere definition of superficial, as noted in Note (1) above. DC 7804 remains unchanged and was not affected by the August 13, 2018 skin amendments. In the November 2013 VA examination to assess the Veteran's hernia, the examiner noted the Veteran has a scar that is not painful or unstable and is not in total area of all related scar greater than 39 square centimeters. In the January 2014 VA examination to assess the Veteran's splenectomy, the examiner noted the Veteran has a scar on the midline abdomen that is 23 centimeters. In the April 2014 addendum, the examiner added that the Veteran's midline abdomen scar is not tender. During the February 15, 2019 Board hearing, the Veteran testified that his scars were painful and sensitive to the surrounding area. In his May 25, 2022 VA examinations, the examiner noted the Veteran's spleen scar was painful but not unstable. The scar was tender to palpation and measured at 24 centimeters by 1 centimeter. The examiner further noted that his hernia scar was painful but not unstable. The scar was tender to palpation and measured at 12.5 centimeters by 0.4 centimeters. Total scarred area was therefore 28.96 square centimeters. The weight of the evidence of record during the appeal period is not sufficient to meet the criteria for a compensable rating under DCs 7801 or 7802. The evidence does not demonstrate the Veteran's scars cover an area or areas of at least 6 square inches (39 square centimeters). A compensable rating is thus not warranted under DCs 7801 or 7802. Additionally, the evidence fails to reveal the Veteran's scars result in any limitation of function in the affected area. The Board notes that the lay assertions of the Veteran have been considered. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). To the extent that the Veteran has argued that a higher rating for his spleen scar is warranted, these assertions are outweighed by more probative evidence provided by the examination of a qualified medical professional. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, his lay statements do not provide any basis upon which to assign any higher rating. The Board concludes that a compensable rating for service-connected spleen scar is not warranted under the old or revised rating criteria; and the claim is denied. In reaching this determination, the Board has considered the doctrine of giving the benefit of the doubt to the Veteran under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102 but does not find that the evidence is of such approximate balance as to warrant its applications. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 4. Entitlement to a separate rating for painful scars prior to May 25, 2022 In the course of his appeal, the Veteran was awarded a separate rating of 10 percent for his two painful scars effective May 25, 2022, the date that the scars were first noted to be painful on examination. The Board finds that a 10 percent rating under DC 7804 is likewise warranted for the period from February 15, 2019 to May 25, 2022. VA examinations prior to this period showed no objective evidence of pain in the Veteran's scars. At his February 2019 hearing, however, the Veteran stated that his scars were painful and sensitive to the surrounding area. There is no contemporaneous evidence to contradict this report of pain. As such, the Board finds that a separate rating of 10 percent is warranted effective the date of his hearing when he reported pain. The Board further finds that an evaluation in excess of 10 percent is not warranted for the Veteran's scars under DC 7804. Higher ratings are available for three or more painful scars or for scars that are painful and unstable. The evidence persuasively weighs against such findings. There is no evidence in the record of more than two service-connected scars, nor is there any evidence that either of the Veteran's scars are unstable. As such, a rating in excess of 10 percent is not warranted. 5. Entitlement to a compensable rating for bilateral hearing loss. The Veteran contends that an increased rating is warranted for his bilateral hearing loss, as his symptoms have worsened. Disability ratings for hearing loss are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See 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 testes in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a pure tone audiometric test. The horizontal lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the pure tone audiometric test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to the pure tone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing acuity and the appropriate vertical column to the numeric designation level for the ear having the poorer hearing acuity. See 38 C.F.R. § 4.85(e). The provisions of 38 C.F.R. § 4.86(a) provide that when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) 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. Each ear will be evaluated separately. The provisions of 38 C.F.R. § 4.86(b) provide that when the 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 provides the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. Additionally, Table VIA is to be used to determine a Roman numeral designation for hearing impairment based only on pure tone threshold average when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. Medical treatment records reflect complaints of bilateral hearing loss. However, the Board notes that pertinent competent clinical evidence of record includes the objective clinical auditory evidence found in the November 2013, September 2021, and May 2022 VA examinations. In the November 2013 VA examination, the Veteran's relevant pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 20 15 40 23.75 LEFT 20 20 25 90 38.75 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. Private treatment records reflect that the Veteran underwent audiometric testing in May 2017. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 10 15 15 35 18.75 LEFT 10 5 25 90 32.5 Speech audiometry was not conducted. In the September 2021 VA examination, the Veteran's relevant pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 15 20 30 45 27.5 LEFT 15 20 45 90 42.5 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear. In the May 2022 VA examination, the Veteran's relevant pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 20 20 40 26.25 LEFT 25 25 60 100+ 52.5 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 96 percent in the left ear. Based on the above, the Board finds that during the applicable period, the adequate and reliable objective evidence of record does not show that the Veteran meets the criteria for a compensable rating. Pairing the highest pure tone threshold averages of 27.5 in the right ear and 52.5 in the left ear with the lowest speech recognition scores of 94 percent in the right ear and 96 percent in the left ear yields Level I hearing loss in both ears under Table VI. Under Table VI, a noncompensable rating is warranted whenever both ears exhibit less than Level IV hearing loss. The Board notes that the lay assertions of the Veteran have been considered. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). To the extent that the Veteran has argued that higher ratings for his bilateral hearing loss is warranted, these assertions are outweighed by more probative evidence provided by the examination of a qualified medical professional. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, his lay statements do not provide any basis upon which to assign any higher rating. As such, the Board concludes that a compensable rating for service-connected bilateral hearing loss is not warranted; and the claim is denied. In reaching this determination, the Board has considered the doctrine of giving the benefit of the doubt to the Veteran under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102 but does not find that the evidence is of such approximate balance as to warrant its applications. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND Entitlement to service connection for a left knee disability The Veteran contends that his current left knee disability is directly related to his active duty. After review of the record, the Board finds that additional development is needed prior to readjudication of the claim and in accordance with VA's duty to assist. In May 2022, the Veteran underwent a VA examination to assess the current nature and etiology of his claimed left knee disability. Upon examination, the examiner diagnosed the Veteran with left knee strain, instability, patellofemoral pain syndrome, tendinitis, and osteoarthritis, however, provided unfavorable medical nexus opinions as to these conditions being related to his active service. Nevertheless, the Board finds these opinions to be inadequate, as the examiner solely based one opinion on in-service treatment records being silent for complaints at entrance and exit examinations, without further discussion on why the lack of such complaints are dispositive of the claim. Additionally, in the second opinion, the examiner noted that an opinion cannot be provided without resorting to mere speculation, however, failed to provide a rationale as to why. Therefore, based on the above, the Board finds the Veteran should be provided an addendum VA medical opinion that adequately addresses his service connection claim. The matters are REMANDED for the following action: Provide the Veteran with an addendum VA medical opinion by an appropriate clinician to determine the nature and etiology of his claimed left knee disabilities. The claims file, including a copy of this remand, must be reviewed by the examiner. An additional in-person examination should be provided if the examiner deems it necessary. Following complete review of the record, the examiner must opine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any diagnosed left knee disability had its onset during any period of active duty or is otherwise etiologically related to his active duty, to include the in-service injury to the left knee in October 1995 and contended cause of left knee disabilities due to in-service running. In so doing, the examiner may not rely on the silence of service treatment records without further discussion and explanation. Any opinion should include a detailed rationale. The examiner should consider the entire claims file, and discuss the Veteran's lay statements regarding the nature, onset, and chronicity of symptoms. The examiner is advised that the Veteran is competent to report symptoms, and that his reports must be considered in formulating the requested opinion. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rational for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. J. GALLAGHER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Carter, 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.