Case A26040649

DUSTIN L. WARE · 2026 · Case ID: A26040649

MIXED

Summary

The veteran, who served in the U.S. Air Force from January 1984 to January 2004, appeals a September 2021 rating decision. The veteran sought a compensable rating for left ear hearing loss and an increased rating for a right knee scar. During a May 2025 hearing, the veteran explicitly withdrew the appeal for left ear hearing loss, leading to its dismissal due to lack of appellate jurisdiction. For the right knee scar, the Board reviewed the August 2021 VA examination, which found a single scar on the lumbar spine measuring 3.6 cm sq, noted as not painful or unstable and without underlying soft tissue damage. However, during the May 2025 hearing, the veteran credibly testified that his right knee scar was painful. Applying the benefit of the doubt and resolving reasonable doubt in the veteran's favor, the Board found the scar to be painful throughout the period on appeal, granting a 10 percent rating under Diagnostic Code 7804. The Board considered other diagnostic codes but found them inapplicable. The claim for a neck disability was remanded because the August 2021 VA examiner's opinion was inadequate; it addressed secondary connection to a service-connected low back condition but failed to address direct service connection for the neck disability, which the veteran contended was due to strenuous positioning while working on aircraft. A new VA opinion is required to address direct service connection and aggravation by the service-connected lumbar spine condition.

Service Branch

AIR FORCE

Special Benefit

NO SPECIAL BENEFIT

Docket No.

211021-192524

Full Decision Text

Citation Nr: A26040649
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 211021-192524
DATE: April 30, 2026

ORDER

Entitlement to a compensable rating for left ear hearing loss is dismissed.

Entitlement to an initial 10 percent rating, but no higher, for a right knee scar is granted.

REMANDED

Entitlement to service connection for a neck disability is remanded.

FINDINGS OF FACT

1. During his May 2025 hearing and prior to the promulgation of a Board decision, the Veteran explicitly and unambiguously withdrew his appeal of entitlement to a compensable rating for service-connected left ear hearing loss with full knowledge of the consequences of such action.

2. Resolving all reasonable doubt in the Veteran's favor, the Veteran's right knee scar is painful, but not unstable.

CONCLUSIONS OF LAW

1. The criteria for dismissal of the issue of entitlement to a compensable rating for service-connected left ear hearing loss has been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. Throughout the period on appeal, the criteria for a rating of 10 percent for a right knee scar have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7804.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S. Air Force from January 1984 to January 2004.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2021 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which is the agency of original jurisdiction (AOJ).

In the October 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on May 23, 2025. Therefore, the Board may only consider the evidence of record at the time of the September 2021 AOJ decision on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the claim of entitlement to service connection for a neck disability, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii).

1. Entitlement to a compensable rating for left ear hearing loss

An appeal may be withdrawn on the record at a hearing. Acree v. O'Rourke, 891 F.3d 1009, 1013-14 (Fed. Cir. 2018). A withdrawal on the record at a hearing must be explicit, unambiguous, and done with full knowledge of the consequences. Id.; see also DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011).

In this case, during the May 2025 hearing the presiding VLJ specifically stated that, as discussed during the pre-hearing conference, the Veteran wanted to withdraw the issue of entitlement to a compensable rating for left ear hearing loss from the current appeal. The VLJ then specifically asked whether the Veteran and his representative understood the effects of withdrawing his appeal of the increased rating issue, and the Veteran's attorney and the Veteran affirmatively stated that he understood and agreed with the withdrawal.

As the Veteran has explicitly, unambiguously, and with full knowledge of the consequences withdrawn his appeal of the issue of entitlement to an increased
isio v. Shinseki, 25 Vet. App. 45, 54 (2011).

As the Veteran has explicitly, unambiguously, and with full knowledge of the consequences withdrawn his appeal of the issue of entitlement to an increased rating for left ear hearing loss, the Board no longer has appellate jurisdiction and can take no further action on that matter. Accordingly, the appeal for an increased rating for left ear hearing loss on appeal is dismissed. Acree, 891 F.3d at 1013-14.

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA must determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson, 12 Vet. App at 119.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

When all the evidence is assembled, VA is responsible for determining whether the weight of the evidence is in approximate balance. If the positive and negative evidence is evenly or approximately balanced, the claimant receives the benefit of the doubt. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

1. Entitlement to an initial 10 percent rating, but no higher, for a right knee scar

The Veteran's scar, status post right knee surgery, is assigned a noncompensable rating under Diagnostic Code 7802. 38 C.F.R. § 4.130.

Diagnostic Code 7800 pertains to scars or other disfigurement of the head, face and neck and is not applicable in this case.

Diagnostic Code 7801 is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. 38 C.F.R. § 4.118.

Diagnostic Code 7802 is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Area or areas of 144 square inches (929 sq. cm.) or greater warrant a 10 percent rating.

Under Diagnostic Code 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating. Three or four scars that are unstable or painful scars warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the
or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Area or areas of 144 square inches (929 sq. cm.) or greater warrant a 10 percent rating.

Diagnostic Code 7805 instructs that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 are to be evaluated under an appropriate diagnostic code.

Turning to the evidence of record, the Veteran was afforded a VA examination in August 2021. The Veteran reported that he underwent right knee surgery in 2021.

The VA examiner noted that the Veteran has one scar located on the lumbar spine measuring 18 centimeters in length and 0.2 centimeters in width for a total area of 3.6 cm sq. The examiner stated on examination the scar was not painful or unstable. The scar was not noted to affect the head face or neck, nor was the scar noted to be deep or be accompanied by underlying soft tissue loss. The examiner further noted that there were no other disabling effects associated with the scar. There were no scars due to burns.

The Board has also reviewed the Veteran's treatment records, which do not indicate scar-related symptoms that are more severe than what is depicted in the August 2021 VA examination.

During the May 2025 hearing, the Veteran testified that his service-connected scars were painful, including the right knee. The Board notes that the Veteran is competent to report experiencing symptoms of pain in his surgical scars, and the Board has no reason to doubt the credibility of his assertion. See Layno v. Brown, 6 Vet. App. 465 (1994).

Affording the Veteran the benefit of the doubt, based on the Veteran's credible testimony that his right knee scar is painful, the Board resolves all reasonable doubt in the Veteran's favor and finds that the evidence demonstrates that the Veteran's right knee surgical scar has manifested by pain throughout the period on appeal. The Board makes such a finding, despite the August 2021 VA examiner marking that the scars were not painful. Therefore, the criteria for a 10 percent rating under Diagnostic Code 7804 based on the presence of one or two painful scars have been met.

The Board has considered whether any other relevant Diagnostic Codes may afford the Veteran a higher 20 percent evaluation for his right knee scar. However, the Veteran's scar does not exhibit any underlying soft tissue damage (Diagnostic Code 7801) and does not cover an area or areas of 144 square inches or greater (Diagnostic 7802). Further, the evidence of record shows that there are no other disabling effects not considered in a rating provided under Diagnostic Code 7800-7804. See 38 C.F.R. § 4.118, Diagnostic Code 7805. Finally, there is no evidence to suggest any symptoms that have resulted in functional impairment beyond that which is contemplated by the Veteran's current staged rating. As noted above, the propriety of the evaluation for his right status-post surgery right knee scar injury is not on appeal at this time.

Accordingly, 10 percent rating, but no higher, for the Veteran's painful post-surgery right knee scar is granted throughout the period on appeal. In making this finding, the Board has resolved all reasonable doubt in the Veteran's favor. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Lynch, 21 F.4th at 776.

REASONS FOR REMAND

1. Entitlement to service connection for a neck disability is remanded.

The Veteran seeks entitlement to service connection for a neck disability, which he contends were incurred in or caused by service, specifically as due to strenuous positioning while working on aircraft. See July 2021 Claim for Benefits.

The Veteran underwent a VA neck conditions examination in August 2021 to assess the nature and etiology of his neck disability. On examination, a diagnosis of degenerative joint disease of the cervical spine with spondylosis status post cervical fusion was rendered.

Following the above examination, the August 2021 VA examiner found it less likely than not that the Veteran's currently diagnosed neck disability is related to his service-connected low back disability.

However, the Veteran has not asserted his neck disability is secondary to his service-connected low back disability.
entitlement to service connection for a neck disability, which he contends were incurred in or caused by service, specifically as due to strenuous positioning while working on aircraft. See July 2021 Claim for Benefits.

However, the Veteran has not asserted his neck disability is secondary to his service-connected low back disability. The August 2021 VA examiner did not address direct service connection, the theory of entitlement he has raised throughout the period on appeal.

As the opinion of record is inadequate, the Board finds that a pre-decisional duty to assist error occurred and the issue must be remanded so that a new medical opinion can be obtained. 38 U.S.C. § 5103A(f); 38 C.F.R. § 20.802(a).

Accordingly, the matter is REMANDED for the following action:

1. Obtain an addendum opinion from a qualified VA examiner regarding the Veteran's neck disability. A VA examination should not be scheduled unless deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety and that review must be noted in the report.

Thereafter, the examiner is asked to fully respond to the following:

(a) Whether any diagnosed neck disability was incurred in or caused by an in-service injury, event, or illness, to include as due to frequently performing repairs on aircraft?

(b) Whether any diagnosed neck disability was caused by the Veteran's service-connected lumbar spine condition?

The examiner must provide a complete rationale for any opinion expressed.

The examiner is advised that the lack of documented treatment for the claimed disability during service cannot serve as the sole basis for a negative finding.

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If the examiner is unable to provide an opinion without resorting to speculation, he or she should fully explain why that is so.

DUSTIN L. WARE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Rosenthal, Ariana

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.

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