Citation Nr: 1323194 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 05-29 639 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an increased rating for service-connected residual shell fragment wound (SFW) to the middle shaft of the penis, evaluated as noncompensable prior to May 18, 2002 and 10 percent disabling thereafter. 2. Entitlement to an initial compensable rating for service-connected forehead scar. 3. Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran had active service from June 1967 to June 1969 and August 1990 to October 1990 with multiple periods of active duty for training (ACDUTRA). This matter comes before the Board of Veterans' Appeals (BVA or Board) from May 2004, March 2005, and July 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In February 2008 and April 2012, the Board remanded these claims for additional development. A review of the Virtual VA electronic records storage system reveals additional VA clinic records, as well as a Post-Remand Brief, which are not associated with the paper claims folder. The RO has reviewed the VA clinic records in adjudicating this case. The issues of entitlement to an increased rating for service-connected residual SFW to the middle shaft of the penis and entitlement to service connection for a back disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran demonstrates a well-healed, superficial forehead scar measuring 4 cm. x. 0.2 cm. that is painful on examination, but absent any characteristics of disfigurement, instability, or limitation of any part affected. CONCLUSION OF LAW The criteria for an initial 10 percent rating, but no higher, for service-connected forehead scar have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.118, Diagnostic Codes (DCs) 7800, 7803-05 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Applicable law The Veteran seeks a compensable rating for his service-connected forehead scar. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. The severity of disability resulting from skin disease is ascertained, for VA rating purposes, by application of the criteria set forth at 38 C.F.R. § 4.118. In general, separate ratings may be assigned based upon appearance, healing, and/or impairment of function of the part affected. Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (holding that separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition.) The Veteran has appealed a March 2005 RO rating decision which granted service connection for a forehead scar, and assigned an initial noncompensable rating effective February 8, 2004. As such, this claim may only be evaluated according to the criteria for evaluating skin diseases in effect since August 30, 2002. See 67 Fed. Reg. 49590 -49599 (July 31, 2002). See also VAOPGCPREC 3-00; 38 U.S.C.A. § 5110(g). During the pendency of this appeal, VA issued a clarifying final rule for evaluating scar disabilities at 73 Fed. Reg. 54708 (Sept. 23, 2008). However, these amendments only apply to applications received by VA on or after October 23, 2008, or if the Veteran expressly requests consideration under the new criteria, which he has not done here. Therefore, the Board has no authority to consider these revisions in deciding this claim. VAOPGCPREC 3-00; 38 U.S.C.A. § 5110(g). Disfigurement of the head, face or neck is evaluated under DC 7800 which may be based, in part, upon the following 8 specified characteristics of disfigurement: (1) a scar 5 or more inches (13 or more centimeters) in length; (2) a scar of at least 1/4 inch (0.6 centimeters) wide at its widest part; (3) surface contour of the scar elevated or depressed on palpation; (4) a scar adherent to underlying tissue; (5) skin hypo- or hyper-pigmented in an area exceeding 6 square inches (39 square centimeters); (6) abnormal skin texture (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39 square centimeters); (7) underlying soft tissue missing in an area exceeding 6 square inches (39 square centimeters); and/or (8) skin indurated and inflexible in an area exceeding 6 square inches (39 square centimeters). 38 C.F.R. § 4.118, DC 7800, Note (1). A 10 percent evaluation is warranted where there is evidence of one characteristic of disfigurement of the head, face, or neck. 38 C.F.R. § 4.118, DC 7800. A 30 percent evaluation is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or a paired set of features (i.e., the nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips) or, in the alternative, 2 or 3 of the aforementioned characteristics of disfigurement. Id. Under DC 7803, a 10 percent evaluation is warranted where there is evidence of an unstable superficial scar. An unstable scar is defined as one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, DC 7803, Note (1). A superficial scar is defined as not having any associated underlying soft tissue damage. Id. at Note (2). Under DC 7804, a 10 percent evaluation is warranted for a superficial scar which is painful on examination. Again, a superficial scar is defined as not having any associated underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7804, Note (1). Under DC 7805, a rating can also be assigned based on limitation of function of the affected part. 38 C.F.R. § 4.118, DC 7805. The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. A lay claimant is competent to provide testimony concerning factual matters of which he or she has firsthand knowledge (i.e., reporting something seen, sensed or experienced). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Under certain circumstances, lay statements may serve to support a benefits claim by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In Barr, the Court emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of the presence or absence of the claimed symptomatology. However, there are clearly limitations regarding the competence of a lay claimant to speak to certain matters, such as those involving medical diagnosis and etiology. See Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007) (noting that a layperson not competent to diagnose a form of cancer). VA has defined competent lay evidence as any evidence not requiring that the proponent have specialized education, training or experience. 38 C.F.R. § 3.159(a)(1). Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a layperson. Id. Further, competent medical evidence is defined as evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions. 38 C.F.R. § 3.159(a)(2). II. Factual Summary Historically, the Veteran described incurring a forehead wound while serving in Vietnam which required stitches and took a long time to heal. See VA Form 21-4138 received in March 1972. See also Witness statements received in June 2004. An October 1971 VA C&P examination described a 1 inch long faint, well-healed scar in the mid-forehead which was not tender or disfiguring. In pertinent part, the Veteran's post-service private and VA treatment records do not contain any relevant findings pertaining to his forehead scar. VA C&P examination in January 2009 described a superficial forehead scar which was 2 centimeters x. 1 millimeter. The examiner noted pain on examination, but there was no instability, elevation, depression, hypo- or hyper-pigmentation, induration, adherence to underlying tissue, shininess, scaliness or atrophy. The examiner found no distortion of facial features or limitation of motion/function caused by the scar. A May 2012 VA C&P scars examination diagnosed a healing, fading forehead scar. The examiner provided a positive response as to whether any scars of the head, face or neck were painful, but later referred to a service-connected penile scar as causing a burning sensation. The forehead scar, which measured 4 x. 0.2 cms., was not unstable. There was no elevation, depression, adherence to underlying tissue, missing underlying soft tissue, or abnormal pigmentation or texture. There was also no gross distortion or asymmetry of facial features, or visible or palpable tissue loss. The Veteran returned for VA C&P examination in March 2013 for unretouched photographs of his forehead scar. Those pictures have been associated with the claims folder. This examiner explained that the Veteran had denied a painful or itching scar on his May 2012 VA C&P examination. III. Analysis Applying the criteria to the facts of this case, the Board finds that the Veteran is entitled to a 10 percent rating for his forehead scar, but no higher, for the entire appeal period. In this respect, the credible lay and medical evidence demonstrates a well-healed, superficial forehead scar measuring 4 x. 0.2 centimeters that is painful on examination, but is absent any characteristics of disfigurement, instability, or limitation of any part affected. Here, the January 2009 VA C&P examiner described the Veteran's forehead scar as being painful on examination. This finding conflicts with the Veteran's denial of a painful scar on examination in October 1971 and, apparently, on examination in May 2012. However, the May 2012 VA C&P examination report does contain some ambiguity as to whether the forehead scar was painful as the examiner initially provided a positive response to the Veteran having a scar of the head, face or neck that was painful. The Board resolves reasonable doubt in favor of the Veteran by finding that his forehead scar is painful on examination. As such, the maximum 10 percent rating under DC 7804 is warranted. Nonetheless, the Board does not find any factual basis for a higher rating still. The VA examiners in 2009 and 2012 consistently described the scar as less than 5 inches (13 centimeters) in length and less than 1/4 inch (0.6 centimeters) in width. This is consistent with the scar measurement in October 1971. There is no lay or medical evidence describing adherence to underlying tissue, abnormal pigmentation or texture, loss of underlying soft tissue, or skin induration and inflexibility in an area exceeding 6 square inches (39 square centimeters). The Veteran's representative has argued in the June 2013 Post-Remand Brief that the unretouched photographs of the scars demonstrate an abnormal surface contour of depression on the basis that the "line" of the scar can be seen. The Board agrees that the Veteran's scar is visible by the unretouched photographs, but is of the opinion that the visible presence of the scar does not, ipso facto, demonstrate depression of the skin surface. The VA examiners in January 2009 and May 2012 had the opportunity to inspect the skin surface up close, and have provided their professional opinion that there is no abnormal surface contour. The Board places greater probative weight to the examination findings of the VA examiners, as they have had the benefit of actual up-close physical inspection of the scar and the surrounding skin surface which greatly outweighs any lay individual interpretation of photographs taken from a farther distance. Thus, the Board finds that the preponderance of the evidence establishes that the Veteran's forehead scar does not demonstrate any of the characteristics of disfigurement specified in VA regulations. The VA examiners have also provided opinion that the Veteran's forehead scar does not result in visible or palpable tissue loss, or gross distortion or asymmetry of any feature. The Veteran has not argued that his forehead scar demonstrates these characteristics. To the extent that the Board has any competence to render its own opinion as to visually demonstrable disfigurement, the Board finds that the unretouched photographs of record do not demonstrate any visible tissue loss, gross distortion or asymmetry. See generally Buczynski v. Shinseki, 24 Vet. App. 221, 226 (2011) (holding that the term "exceptionally repugnant" as used in a prior version of DC 7806 (1995) was not a medical term and was subject to the Board's own interpretation of the visual characteristics). Thus, based upon the above, the Board finds that a compensable rating under DC 7800 is not warranted. The VA examiners in 2009 and 2012 also found that the Veteran's forehead scar was not unstable, and did not cause limitation of function of any affected part. Additionally, the Veteran himself has not described these aspects of disability attributable to the forehead scar. As such, the Board finds that a compensable rating under DCs 7803 or 7805 is not warranted. Overall, the Board finds that the Veteran has met the criteria for a 10 percent rating under DC 7804 due to a painful scar, but has not met the criteria for a compensable rating under DCs 7800, 7803 or 7805. In so finding, the Board finds that the Veteran is clearly competent to describe various aspects of scar symptomatology involving pain, tissue loss, asymmetry, etc. Here, the Veteran has described a painful scar which provides the basis for a 10 percent rating under DC 7804. The Veteran has not described any other characteristics other than a headache disorder, which has been separately awarded in an April 2013 RO rating decision. To the extent that the Veteran has argued otherwise, the Board places greater probative weight to the findings of the VA clinicians who have greater training and expertise than the Veteran in evaluating the characteristics of a scar disorder. There is no further reasonable doubt to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b). To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The provisions of 38 C.F.R. § 3.321(b) state as follows: Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities. The governing norm in these exceptional cases is: A finding that 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. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule. See VAOPGCPREC 6-96 (Aug. 16, 1996). In Thun, the Court further explained that the actual wages earned by a particular veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability. The Thun Court indicated that extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Veteran has primarily alleged that his forehead scar is painful scar and has caused a headache disorder. The Board has awarded the maximum 10 percent rating for a painful scar under DC 7804, and the RO has awarded a 30 percent rating for a headache disorder. VA regulations provide for higher ratings based upon other aspects of disability such as disfigurement, skin healing characteristics, and impairment of any affected part. However, the Veteran has not alleged these characteristics of disability (other than the representative's argument regarding skin depression) and the medical evidence does not suggest any additional characteristics of disability for which VA compensation has not been awarded. In short, the Board finds that the assigned schedular evaluations are adequate. As such, there is no basis for extraschedular referral in this case. See Thun, 22 Vet. App. 111, 114-15 (2008). The record reflects the Veteran's report that he is retired. He has not alleged, and the evidence does not suggest, that he is unemployable as a result of his service-connected disabilities. As such, an issue of entitlement to a total disability rating based upon individual unemployability (TDIU) has not been reasonably raised at this time. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001) (once a claimant submits evidence of medical disability, makes a claim for highest possible rating, and submits evidence of unemployability, an informal claim is raised under 38 C.F.R. § 3.155(a)); Rice v. Shinseki, 22 Vet. App. 447 (2009). III. The Duty to Notify and the Duty to Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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). Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The notification requirements are referred to as Type One, Type Two, and Type Three, respectively. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, the Veteran is challenging the initial evaluation assigned for a forehead scar following a grant of service connection in a March 2005 RO rating decision. In Dingess, 19 Vet. App. 473 (2006), the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. VA has a duty to assist a claimant in the development of the claim. This duty includes assisting the claimant in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In this case, the RO obtained the Veteran's STRs, including all available records from the Army National Guard (ARNG). The Board acknowledges that some ARNG records may be unavailable, but the issue on appeal concerns the current state of disability since the effective date of award assigned - February 9, 2004. The Veteran has not argued that these records are relevant to his forehead scar claim. As such, any potentially missing STRs are not relevant to this appeal. The RO has also obtained all identified VA clinic records and those private medical records which the Veteran has identified and authorized VA to obtain on his behalf. There no outstanding requests to obtain any private medical records for which the Veteran has identified and authorized VA to obtain on his behalf. Moreover, the record does not suggest, and the Veteran has not argued, that any relevant records are in the possession of the Social Security Administration The Veteran was afforded VA C&P scar examinations in January 2009, May 2012 and March 2013. The Board finds that these examination reports contain all findings necessary to adjudicate the claim. Notably, the VA examination in March 2013 was essentially an addendum to the May 2012 VA examination report to obtain unretouched color photographs and clarification of findings. There is some discrepancy regarding these examination reports as to whether the Veteran's forehead scar is painful on examination. This discrepancy has been resolved in the Veteran's favor by providing the maximum available schedular rating for a painful scar. 38 U.S.C.A. § 5107(b). Since the May 2012 VA examination, the Board finds no credible lay or medical evidence suggesting an increased severity of the forehead scar disability. Thus, additional examination is not warranted. See VAOPGCPREC 11-95 (Apr. 7, 1995). Finally, the Board finds that there was substantial compliance with the February 2008 and April 2012 remand directives. In this respect, the RO has attempted to the extent possible to obtain ARNG records, has obtained VA clinic records, has obtained adequate VA examination, and readjudicated the claim. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). Overall, the Board finds that the evidence of record is sufficient to decide the claim being decided on appeal, and that there is no reasonable possibility that any further assistance would aid in substantiating this claim. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). ORDER An initial 10 percent rating for service-connected forehead scar is granted. REMAND In April 2012, the Board remanded a claim of entitlement to a compensable rating for service-connected residual SFW to the middle shaft of the penis for VA examination to describe all current symptomatology, including any functional impairment under DC 7805. Previously, an April 1970 RO rating decision had granted service connection for residuals of SFW to the middle shaft of penis, and assigned an initial noncompensable rating under DC 7805. Following VA examination on May 18, 2012, the RO granted "service connection" for residual SFW of middle shaft of penis "(previously rated under diagnostic code 7805)," and assigned a 10 percent rating for a painful scar under DC 7804 effective to the date of the May 18, 2012 VA examination. The RO then asserted that this was a full grant of benefits on the issue on appeal. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Court has held that a claimant is presumed to seek the maximum rating for an increased rating claim absent a clear indication to the contrary. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran filed a claim for an increased rating for an already service-connected penile scar in March 2005. The award of a 10 percent rating for a painful scar effective March 18, 2012 does not extend to the beginning of the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (holding that the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim). See generally 38 U.S.C.A. § 5110(b)(2). Thus, the appeal is not satisfied as the RO has not awarded the maximum available benefits under the law for an increased rating claim. The RO's recharacterization of the claim as a "service connection" claim is not procedurally accurate. Additionally, as indicated above, separate ratings for a scar disability may be assigned based upon appearance, healing, and/or impairment of function of the part affected. Esteban, 6 Vet. App. at 262. The Board's April 2012 remand directive specifically requested the VA examiner to consider whether the Veteran's penile scar resulted in any functional impairment under DC 7805. The RO's rating determination in April 2013 did not directly address this issue and, thus, does not consider whether the maximum available benefits under the law for an increased rating claim have been awarded. Notably, a May 2012 VA examiner provided a cursory opinion regarding functional impairment under DC 7805 by merely stating that the Veteran's male reproductive system conditions were less likely than not related to his penile scar. No reasoning was provided which renders the examination report as inadequate for rating purposes. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that a medical opinion does not hold probative value when it fails to provide sufficient detail and rationale to allow the Board to make a fully informed evaluation of the disability). The May 2012 VA examiner did allude to potential etiological factors for the Veteran's erectile dysfunction, such as age, depression and medications for depression. Notably, the Veteran is service-connected for posttraumatic stress disorder (PTSD). The Board had previously referred to the RO a claim of service connection for erectile dysfunction as secondary to service-connected residual SFW to the middle shaft of the penis for RO adjudication in the first instance. The RO has not adjudicated this claim. Given the Veteran's allegations and the May 2012 VA examiner's assessment that service-connected PTSD may be a contributing factor in the Veteran's erectile dysfunction, the Board must now find that the issues of entitlement to an increased rating based upon functional impairment under DC 7805 and entitlement to service connection for erectile dysfunction as secondary to service-connected disability (including service-connected residual SFW to the middle shaft of the penis, PTSD and medications taken to treat PTSD) are inextricably intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Thus, a final determination on the increased rating claim for the penile scar under DC 7805 must be deferred pending RO adjudication of the service connection claim for erectile dysfunction in the first instance. The Veteran also seeks to establish his entitlement to service connection for a back disorder. His STRs for his period of service from June 1967 to June 1969 reflect that he incurred an SFW injury to the low back in February 1968. He has reported an additional lifting injury to the low back in service with persistent back pain thereafter. See VA Form 21-4138 received in August 1971. The STRs do reflect treatment for lower back pain on October 18, 1967 and the Veteran's report of low back pain on his May 1969 separation examination. The Veteran incurred a lumbosacral trauma in August 1989, which the ARNG has deemed a line of duty (LOD) injury. The Board remanded this case in April 2012 for an opinion as to whether the Veteran's current low back disability is causally or etiologically related to events during service. A VA examiner in May 2012 found that it was not at least as likely as not that the Veteran's current diagnoses of lumbar spine degenerative joint disease, degenerative disc disease and lumbar spinal canal stenosis were causally or etiologically related to service. The examiner found that these disorders were due to a long-standing process. The Veteran's representative has pointed out that the Veteran's x-ray examinations have been interpreted as showing residual metallic fragments in the back area. See, eg., VA x-ray examination dated January 2002 (noting a metallic particle adjacent to the left 12th rib). This raises the issue as to whether the Veteran's SFW to the back resulted in a muscle injury contributing to the current low back pain. As a result, the Board finds that a clarifying opinion is necessary which takes into account a possible muscle injury to the back. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder records of the Veteran's relevant VA treatment since February 21, 2013. 2. Upon completion of the above, afford the Veteran a VA examination to determine the current severity of his residual SFW to the middle shaft of the penis. The examiner should identify and completely describe all current symptomatology. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. Ask the examiner to discuss all findings in terms of 38 C.F.R. § 4.118, Diagnostic Code 7805. The pertinent rating criteria must be provided to the examiner. The examiner should specifically provide opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that disability associated with residual SFW to the middle shaft of the penis (including the painful scar or impairment of the structural integrity of the penile shaft) has caused the Veteran's erectile dysfunction OR, alternatively, has aggravated his erectile dysfunction beyond the normal progress of the disorder. The findings reported must be sufficiently complete to allow for rating under all alternate criteria. 3. Afford the Veteran a VA examination for a back disorder. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. All current back diagnoses should be noted. The examiner is requested to review all pertinent records associated with the claims file. The examiner is requested to carefully trace the entrance the trajectory of the SFW injury(ies) to the back as well as any x-ray evidence of retained metallic fragments. The examiner should then offer an opinion as to the muscle group(s) affected by the SFW injury to the back. After the claims file is reviewed, for each back disorder diagnosed, including any potential muscle injury(ies), the examiner should offer comments and an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the diagnosed back disorder is causally or etiologically related to service, OR aggravated by service beyond the normal progress of the disorder, to include the Veteran's account of symptoms experienced during service and consideration of the potential cumulative effects of the SFW injury (including any muscle injury), the heavy lifting injury during service from June 1967 to June 1969, and the traumatic injury to the lumbosacral spine in August 1989. In providing this opinion, the examiner should specifically consider the following evidence: * the Veteran's history of SFW to the back area in February 1968 (see generally STR dated September 5, 1968 and May 1969 separation examination); * the Veteran's treatment for lower back pain on October 18, 1967; * the Veteran's report of low back pain on his May 1969 separation examination; * an October 1969 hospitalization record for urethral stricture which recorded the Veteran's complaint of low back pain radiating to his genitalia with dysuria and polakyuria; * the findings from a February 1970 VA examination report; * a VA Form 21-4138 received in August 1971 wherein the Veteran reported persistent back pain since a lifting injury in service; * the findings from an October 1971 VA examination report; * the Veteran's denial of recurrent back pain on an April 1986 ARNG examination report; * the results from a February 1989 ARNG examination report; * records associated with an August 1989 line of duty traumatic injury to the lumbosacral spine resulting in muscle spasm and x-ray examination results interpreted as showing a normal lumbosacral spine; * a September 1990 ARNG treatment record for muscle strain wherein the Veteran reported pain of his groin, lower back and legs of one weeks' duration which was getting progressively worse; * the Veteran's denial of recurrent back pain on a February 1993 ARNG examination report; * VA treatment for right lumbosacral pain and right sciatic-like syndrome in December 1996; * the Veteran's August 2005 statement that he had been taking medication for back pain since his August 1989 motor vehicle accident; * the results and opinion from a January 2009 VA examination report; * a June 2010 private examiner letter diagnosing bilateral L5 radiculopathies; * the results and opinion from a January 2009 VA examination report; and * the effects, if any, of any muscle injury and/or retained metallic fragments from the SFW injury. In doing so, the examiner must acknowledge symptoms experienced during and after discharge from service, and discuss lay and medical evidence of a continuity of symptomatology. In particular, review the Veteran's lay statements as they relate to the development of his disorder and provide information as to how his statements comport with generally accepted medical norms. The examiner is also reminded that an examination is inadequate where the examiner does not comment on the Veteran's report of an in-service disorder and instead relies on the absence of evidence in the service treatment records to provide a negative opinion. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion or other information needed to provide the requested opinion. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. 4. Thereafter, the RO should adjudicate the inextricably intertwined claim of entitlement to service connection for erectile dysfunction secondary to service-connected disability (including service-connected residual SFW to the middle shaft of the penis, PTSD and medications taken to treat PTSD). If the service connection claim is denied, the Veteran should be advised of his appellate rights. 5. The Veteran is hereby notified that it is his responsibility to report for the examination scheduled in connection with this REMAND and to cooperate in the development of his case. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim for entitlement to an increased rating for service-connected residual SFW to the middle shaft of the penis, evaluated as noncompensable prior to May 18, 2002 and 10 percent disabling thereafter, should be readjudicated. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs