BVA9500065 DOCKET NO. 93-05 135 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for defective hearing. 2. Entitlement to service connection for cellulitis. 3. Entitlement to an increased (compensable) evaluation for residuals of a left inguinal hernia. REPRESENTATION Appellant represented by: New York Division of Veterans' Affairs ATTORNEY FOR THE BOARD C. D. Hayden, Counsel INTRODUCTION The veteran performed active duty from August 1987 to July 1991. This matter has come before the Board of Veterans' Appeals (the Board) on appeal from an August 1992 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. CONTENTIONS OF APPELLANT ON APPEAL In essence, the veteran asserts that cellulitis is chronic and although there are no current symptoms service connection should still be granted at a noncompensable level. It is also asserted that since defective hearing has been shown, service connection should be granted and, at least, a noncompensable evaluation provided. With regard to the inguinal hernia, it is asserted that the hernia was not properly repaired and has not healed and that he has puffiness, tenderness to touch and reduced sensation in the scar area of the herniorrhaphy. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claim for service connection for defective hearing or cellulitis and against his claim for a compensable evaluation for residuals of an inguinal herniorrhaphy. FINDINGS OF FACT 1. The evidence necessary for an equitable disposition of the appealed issues has been obtained by the RO and is of record. 2. The veteran had defective hearing in the right ear at the time he entered service. 3. Defective hearing in the right ear did not increase in severity during service. 4. The elevated thresholds in the left ear during service were minor and acute; chronic defective hearing in the left ear has not been shown. 5. The episodes of cellulitis during service were acute in nature and subsided without residual disability. 6. The residuals of a herniorrhaphy consist of a well-healed scar which is not particularly sensitive with no recurrence of the hernia. 7. Left inguinal herniorrhaphy residuals do not produce an exceptional or unusual disability picture with the need for frequent hospitalization or marked impairment with employment. CONCLUSIONS OF LAW 1. Defective hearing was neither incurred in nor aggravated by service. 38 U.S.C.A. §§ 1131, 1153, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.306, 3.385 (1993). 2. Chronic cellulitis was neither incurred in nor aggravated by service. 38 U.S.C.A. §§ 1131, 5107(a); 38 C.F.R. § 3.303. 3. The residuals of the left inguinal herniorrhaphy do not warrant a compensable evaluation. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.114, Diagnostic Code 7338 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran has submitted a well-grounded claim. The VA has had him examined and has obtained medical records. The VA has fulfilled its duty to assist the veteran in developing the facts pertinent to his claim. 38 U.S.C.A. § 5107(a). Service Connection The term "service connection" connotes many factors but basically it means that a disease or injury resulting in disability was incurred coincident with service in the Armed Forces or, if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303(a). Where a condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Defective hearing The threshold for normal hearing is from 0 to 20 decibels (dB) with higher thresholds indicating some degree of hearing loss. Hensley v. Brown, 5 Vet.App. 155, 157 (1993). For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 Hertz is 40 dB or greater, or where the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 dB or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. An audiometric examination performed in conjunction with the November 1986 enlistment examination found the following thresholds: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 40 30 10 10 15 20 LEFT 15 5 0 0 5 20 The pertinent diagnosis was defective hearing, right ear. An August 1987 audiogram showed the following thresholds: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 15 10 10 5 10 30 LEFT 20 15 5 10 25 25 A March 1989 audiogram found the following thresholds: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 30 35 15 15 10 30 LEFT 25 20 10 15 15 25 A May 1991 audiogram found the following thresholds: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 40 25 10 10 15 15 LEFT 15 15 5 10 10 20 A December 1991 VA audiometric examination found the following thresholds: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 35 35 0 0 15 5 LEFT 10 10 0 0 0 5 The veteran had defective hearing in his right ear at the time he entered service. To grant service connection for a preexisting disorder, there must have been aggravation during service. The term "aggravation" means an increase in disability during service unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306. Comparing audiograms at the time the veteran entered service, during service, at the time of separation and on the VA examination it appears that there was no increase in severity in defective hearing in the right ear. In fact, the audiometric findings at separation from service were nearly identical to those of entry. The findings on the VA examination after service were slightly improved, and in fact, did not reflect a hearing loss for VA purposes. Since there was no increase in severity during service, aggravation may not be conceded. Id. The veteran's hearing in his left ear was normal at the time he entered service, at the time of his separation and was also normal on the post-service VA examination. Although auditory thresholds underwent minor increases at times during service, they did not reach a level manifesting defective hearing in the left ear for VA purposes at any time. Moreover, audiometric findings on the post-service VA examination were similar if not improved from findings on service entry. Since chronic defective hearing in the left ear has not been shown, service connection is not warranted for defective hearing in the left ear. 38 C.F.R. § 3.303(b). Cellulitis The veteran was hospitalized in April and May 1989 for cellulitis on the right arm following a laceration of the middle segment of his middle finger. He was placed on antibiotics and by the end of his hospitalization was afebrile with minimal tenderness in the long finger and no forearm pain. A follow-up later that month found decreasing erythema, mild stiffness and no palpable lymph nodes. Examination approximately a week later found the cellulitis to be resolved and range of motion of the right elbow was full. In August 1989 he was seen for cellulitis on the ankles. Later that month it was noted that there was no pain, heat or other sequela. The assessment was healing cellulitis of the right ankle. He was seen in December 1990 for complaints of pain in the right upper leg. Examination found an erythematous area with a pustule in the center of his right leg. There was no lymphadenopathy. The assessment was cellulitis. The next day he admitted that the pain was less although there was still tenderness to touch. There was a small pustule on the right anterior thigh. He was seen in February 1991 for a painful area on the right thigh; a furuncle was diagnosed. The May 1991 examination for separation from service found his skin to be normal. A January 1992 VA examination found only acne-type lesions on the veteran's upper shoulders without any residual scarring in the right arm, left thigh or ankle area. The examiner said that the cellulitis had resolved without incident. A June 1992 VA examination found the veteran's skin to be intact with no cellulitis. The pertinent diagnosis was cellulitis, resolved. From the foregoing evidence, it appears that the episodes of cellulitis in service were acute in nature and subsided without residual disability. Since the cellulitis treated during service is not shown to be chronic, a showing of continuity after discharge is required to support the claim. Inasmuch as chronicity has not been shown, service connection is not warranted. 38 C.F.R. § 3.303(b). Increased Rating Disability evaluations are intended to compensate for the average impairment of earning capacity, insofar as can practicably be determined, resulting from service-connected disabilities. They are primarily established by comparing objective examination findings with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 C.F.R. § 4.1 (1993). Inguinal hernia is rated as noncompensably disabling when it is small, reducible or without true hernia protrusion or when it is not operated but remediable. It is 10 percent disabling when it is recurrent after surgery, is readily reducible and well supported by a truss or belt. 38 C.F.R. § 4.114, Diagnostic Code 7338. When he was examined for separation from service, the veteran was found to have a left inguinal hernia. At that time, he had no symptoms and the examiner did not see a mass in his left groin. He was hospitalized by the VA in September 1991 because he had noted an enlarging mass and had experienced intolerable pain upon vigorous movement. Examination at admission found a large left inguinal reducible hernia with no evidence of hydrocele. He underwent a repair of the hernia. Following the surgery, the wound was clean and dry with no drainage or evidence of infection. An examination in October 1991 found a well-healed wound without erythema and no recurrence of the hernia. There was no hernia on the right side. The January 1992 VA examination found a healed left inguinal hernia scar which was not reported to be tender or painful. A June 1992 VA general examination found some puffiness in the left pubic area and a decrease in sensation in that area but no abdominal tenderness, no recurrence of the inguinal hernia and no hernia on the right side. Examination by a different physician revealed a well-healed scar which was described as "not particularly sensitive." Inasmuch as the hernia repair is well healed and there has been no recurrence, a compensable evaluation is not in order for the hernia. Superficial scars which are not on the head, face or neck and are not the result of burns are evaluated as 10 percent disabling when poorly nourished with repeated ulceration or when tender and painful on objective demonstration. Otherwise, the scars are rated on limitation of function of the part affected. 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804, 7805. There was no indication that the scar is tender and painful or that there is any limitation of function of the abdomen. There is a slight degree of numbness, but no indication of motor loss or other indication of significant neurological deficit. Accordingly, a compensable evaluation on that basis is not warranted. In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved provided the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The inguinal hernia has not been shown to require frequent hospitalization for treatment nor has there been any marked interference with employability. Accordingly, a higher evaluation on an extraschedular basis is not warranted. Id. ORDER Service connection for defective hearing and cellulitis is denied. A compensable evaluation for left inguinal hernia is denied. THOMAS J. DANNAHER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.