Citation Nr: 1314719 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 09-10 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for residuals of a right shin laceration. 2. Entitlement to service connection for residuals of a scalp laceration. 3. Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran had active service from April 1997 to April 2003. The appeal comes before the Board of Veterans' Appeals (Board) from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The July 2007 rating decision denied service connection for left knee, left ankle and back disabilities, and right shin and scalp lacerations. The Veteran filed a timely notice of disagreement and appealed the rating denials. The Veteran changed his address, and now the RO in Los Angeles, California, is the agency of original jurisdiction for his claims. In May 2011, the Veteran testified before a Veterans Law Judge at a Travel Board hearing conducted at the RO. A transcript is in the claims file. Relevant to this proceeding, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ identified the claims on appeal and discussed additional evidence pertinent to the case that was to be submitted, even holding the claim open for an additional 90 days for receipt of additional evidence the Veteran desired to submit in support of his claims. Neither the Veteran nor his representative have asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or otherwise identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. In September 2011, the Board remanded the claims for additional development to the RO via the Appeals Management Center (AMC), in Washington, DC. In a December 2012 rating decision, the AMC granted service connection for left knee and left ankle disabilities, each evaluated as 10 percent disabling, effective from February 26, 2007. The remaining issues on appeal are service connection for claimed back, right shin and scalp laceration disabilities. In a January 2013 letter from the Board, the Veteran was informed that the Veterans Law Judge who had conducted his May 2011 Travel Board hearing was no longer employed by the Board, and he therefore had the right to an additional hearing before a different Veterans Law Judge. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. He was also advised that if he did not respond within 30 days of the date of the letter, the Board would assume that he did not want another hearing, and would proceed with his appeal. To date, the Veteran has not responded; thus, the Board will proceed with the case. Also, in a January 2013 VA Form 21-4138, Statement in Support of Claim, the Veteran raised the issues of earlier effective dates for the award of service connected left knee and left ankle disorders, each rated as 10 percent disabling effective from February 26, 2007. It is noted though that those effective date claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are not ripe for review by the Board at this time. These earlier effective date claims are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran sustained right shin and scalp lacerations in service; he has residual scarring. 2. There is competent medical evidence to show that the Veteran's back disability is proximately due to or the result of the now service-connected left knee disability. CONCLUSIONS OF LAW 1. Service connection for right shin and scalp scars is warranted. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 2. Service connection for a back disability is warranted. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Given the grant of benefits, explained below, a discussion of the VCAA is rendered moot. II. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). In order to establish service connection on a direct basis, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service connected disease or injury. 38 C.F.R. § 3.310(a). The United States Court of Appeals for Veterans Claims (Court) has construed this provision 38 C.F.R. § 3.310(a), as entailing "any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. III. Residuals of Right Shin and Scalp Lacerations The Veteran asserts that during service he sustained lacerations to his right shin and scalp resulting in scars which are now tender to the touch. He maintains that the laceration scar residuals warrant service connection. The Veteran's service treatment records (STRs) show that he sustained a laceration wound to the right parietal scalp, when he came into contact with a bolt on a piece of equipment. The wound was measured as 4.5 cm in length and 1 to 3 mm in depth. The wound was irrigated and closed with sutures. Days later, when the sutures were removed, the Veteran denied tenderness or edema from the wound. A physical examination showed no discharge, erythema or edema of the wound. The diagnostic assessment was a well healed scar. STRS nearer to the time of service discharge show that the Veteran sustained a right shin laceration after tripping over an equipment tie-down. The laceration was described as ragged over the right shin mid-tibia. The laceration was cleaned and sutured. The diagnostic assessment was laceration right shin. It was reported several days later that the sutures were removed. There was mild erythema and swelling of the wound, and a small amount of pus. Status post right leg laceration was diagnosed. A service discharge medical assessment report indicated that the Veteran had sustained a cut to right shin that took 3 days of bed rest to heal. A laceration to the right leg with 11 sutures was reported. The Veteran's discharge physical examination reports treatment for cuts of the scalp and right shin. At the May 2011 Travel Board hearing, the Veteran testified that concerning his right shin laceration he constantly had an open wound and it was over bone. Transcript (T.) at 7. On examination of the laceration at the hearing, the Veterans Law Judge reported that the shin two and a half inches and with a sort of lesion at the upper end of the scar. T. 7. It was reported that there was discoloration of the skin and it was tender. T. 8. It was stated by the Veteran that rubbing from his pants would open up the wound, because there was less skin. T. 8. The Veteran also testified that his scalp was tender. T. 8. In November 2012, a VA medical examination for scars was performed. On physical examination, the Veteran's right scalp scar was described as not painful or unstable. The scar was on the right parietal scalp and measured 3.5 by 0.2 cm length and width at the widest part. There was hypopigmentation of the scar measured as 0.7 cm. There was no limitation of function due to the scar. The diagnosis was: Scar right scalp. Concerning the right shin scar, the physical examination revealed that the scar was neither painful nor unstable. The scar was described as superficial, non-linear, and 5.5 by 1.0 cm. The combined total area in centimeters squared was 5.5. The diagnosis was: Scar right lower leg. In a December 2012 addendum for additional information on the right scalp and right shin scars, a VA clinician reported that it was less likely than not that the scars caused any problems. After a review of all the evidence of record, the Board finds that service connection for residuals of laceration scars of the right shin and scalp is warranted. The Veteran's STRs indeed confirm that he sustained laceration wounds of the right shin, and the right parietal scalp during service. Both lacerations required sutures, and STRs indicate that the right shin scar was symptomatic with erythema, edema and pus reported. Recent VA physical examination demonstrates that he has residual scarring of the right shin and scalp. The Board is aware that the Veteran has testified that he has tenderness of both scars, and an open wound that occurs on the right shin scar. Indeed, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Given the evidence of an inservice injury and current related residuals, service connection for right shin and scalp scars is warranted. IV. A Back Disability Service connection may be granted for disease or disability resulting from disease or injury incurred in or aggravated by active service. This is service connection on a direct basis. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. However, applicable VA law also provides for secondary service connection. In this regard, service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Disposition of this claim is based solely on secondary service connection, so service connection on a direct basis under 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303 need not be discussed further. A private MRI in June 2011 showed mild loss of disc signal with a 3-mm broad based central protrusion with partial annular tear mildly flattening the anterior thecal sac without nerve root impingement canal or foraminal stenosis. In November 2012, a VA compensation examination of the back was performed. The Veteran reported a history of developing back pain during service while lifting his infant daughter. It was reported that his pain was located in T10/T12 region. He denied any post-service (back) injuries or trauma. The diagnoses were: Lumbar muscle spasm; lumbar intervertebral disc herniation. It was reported that a June 2011 MRI revealed at L4-5, a 3 mm broad based central protrusion with partial annular tear. The examiner determined that it was unlikely that the MRI finding was due to service complaints of upper mid-back pain at T10/T12 because his pathology is at L4-5 and the X-rays of the thoracic spine were "normal." However, the examiner went on to opine that the Veteran had documented internal derangement of the left knee likely related to service. It was stated that it is at least as likely as not that the Veteran's current low back condition (broad based central protrusion with partial annular tear) is due to the chronic left knee condition. If granted service connection for his left knee, then his low back condition would be secondary to the left knee condition. The examiner went on to state that with limping, there was a shift of the body's center of gravity toward the affected leg; resulting in lateral bending of the trunk towards that side. This limping and other factors produced a seesaw effect causing stress and strain on the para-vertebral muscles and ligament. In a December 2012 rating decision, the RO granted service connection for a left knee disability, evaluated as 10 percent disabling, effective from November 7, 2012. It is the responsibility of the Board to weigh the evidence. The November 2012 VA medical opinion establishing that the Veteran's back disorder is due to his now service connected left knee disability, was provided upon a review of the medical evidence of record and supporting rationale. The Board must accord significant probative weight and value to this opinion. See Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board must assess the credibility and probative value of the medical evidence in the record); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (2008) (noting that a central issue in determining the probative value of an examination is whether the examiner was informed of the relevant facts in rendering a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). It is also imperative to note that the record contains no medical evidence to contradict the finding that the Veteran's back disorder is secondary to his now service connected left knee disorder. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the BVA may only consider independent medical evidence in supporting its findings). As such based on the competent medical evidence here, the Board finds that the Veteran's back disorder is secondary to his service-connected left knee disability. The claim is granted. ORDER Service connection for a right shin scar is granted. Service connection for a scalp scar is granted. Service connection for a back disability is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs