Citation Nr: 1748331 Decision Date: 10/26/17 Archive Date: 11/03/17 DOCKET NO. 12-29 068 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for arthritis of multiple joints. 2. Entitlement to an initial rating in excess of 10 percent for scars, status post right shoulder surgery. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Williams, Counsel INTRODUCTION The Veteran served on active duty from January 2002 to January 2007. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska. Jurisdiction was subsequently transferred to the RO in Phoenix, Arizona. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in March 2016. A transcript of this proceeding has been associated with the claims file. In May 2016, the Board reopened the claim for service connection for a low back disability and remanded the remaining claims for additional development. The Board is satisfied there was substantial compliance with its remand orders. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). On remand, an August 2016 rating decision granted service connection for chronic lumbar strain, assigning an initial rating of 10 percent effective March 9, 2009. In a February 2017 rating decision, service connection was granted for left acromioclavicular joint arthritis, and an initial rating of 20 percent was assigned, effective January 27, 2009. As such, these matters are no longer on appeal. FINDINGS OF FACT 1. There is no current diagnosis of arthritis of bilateral hands or elbows. 2. The Veteran does not have three or more scars which have been shown to be painful. CONCLUSIONS OF LAW 1. The criteria for service connection for arthritis of multiple joints are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). 2. The criteria for an initial rating in excess of 10 percent for scars, status post right shoulder surgery, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.118, Diagnostic Code (DC) 7804 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claims in March 2009. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With respect to the claim for a higher initial rating for the service-connected scars, in cases such as this, where service connection has been granted and an initial disability rating and effective date has been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). With regard to the duty to assist, the Veteran's service treatment records, pertinent post-service treatment records, statements, and testimony from the March 2016 Board hearing have been associated with the record. Moreover, the Veteran was afforded VA examinations in February 2011 and July 2016. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the February 2011 and July 2016 VA examinations are adequate and addressed all the relevant criteria. Pursuant to the May 2016 Board remand, additional VA treatment records and the July 2016 examination reports have been obtained and associated with the record. Therefore, there has been compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. The Veteran has not identified any outstanding evidence that needs to be obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran, and no further action is necessary to assist the Veteran in substantiating this claim. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Arthritis of multiple joints Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In this case, degenerative arthritis is considered a chronic diseases listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as degenerative arthritis manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 at 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Analysis The Veteran contends that he has arthritis of multiple joints as a result of active service. As noted above, service connection for left acromioclavicular joint arthritis was granted in a February 2017 rating decision. For the reasons set forth below, service connection for arthritis of multiple joints, to include hands and elbows, is not warranted in this case. A review of the record does not show a current diagnosis of arthritis of multiple joints, to include hands and elbows. While a finding that the Veteran had a disability "at some point during the processing of his claim," can satisfy the service connection requirement for manifestation of current disability, the weight of the evidence does not demonstrate that the Veteran has been diagnosed with any arthritis of his hands and elbows at any time since he filed his current claim. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007). The Board notes VA treatment records do reflect complaints elbow pain. See April 2010 VA treatment record. However, the Veteran was afforded VA Hand and Finger and Elbow and Forearm Conditions examinations in July 2016. The examiner noted that the Veteran does not have a current diagnosis associated with any claimed condition. The examiner described the Veteran's complaints of left and right hand and elbow pain since doing aviation mechanics in 2006. X-rays taken in conjunction with the July 2016 VA examination reflect normal appearance of both hands and both elbows. The examiner further noted that very frequent and repetitive use of the hands over time could cause limitation of the use of the hands due to pain. However, he opined that although the Veteran does complain of arthritic pain in both hands, the X-rays bilaterally are essentially negative. He also stated that the sedrate and rheumatoid factor blood tests are essentially normal. Such tests are used to determine inflammatory arthritic conditions, e.g. rheumatoid arthritis. Regarding the elbows, the examiner also noted that due to the discomfort with repetitive activities, the Veteran would be limited from doing frequent mechanical work using his elbows. He further stated that the Veteran has normal range of motion of the left and right elbows, and X-rays are negative of the elbows bilaterally. In the instant case, the probative evidence of record fails to demonstrate a current diagnosis of arthritis of multiple joints. There is also no probative evidence of a recent diagnosis of this disability prior to the Veteran's claim. Further, while the Veteran is competent to report having pain or discomfort, the evidentiary record does not reflect any diagnosed arthritis of multiple joints, to include the hands and elbows. See Sanchez-Benitez, supra (a symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted; "pain alone, without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute a disability for which service connection may be granted"). The Board notes that the Veteran is competent to report his own symptoms or matters within his personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (the Board's categorical statement that 'a valid medical opinion' was required to establish nexus, and that a layperson was 'not competent' to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, in this case, the Board notes that the Veteran has not identified any findings of arthritis of multiple joints. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1131. See also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Unless there is a current disability, there can be no valid claim for service connection for the disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). For the reasons stated above, the Board finds that the Veteran does not currently have arthritis of multiple joints, to include hands and elbows. Since there is no evidence of any current arthritis of multiple joints, to include hands and elbows, the preponderance of the evidence is against the claim for service connection. Therefore, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The claim for service connection for arthritis of multiple joints, to include hands and elbows, is denied. Scars, status post right shoulder surgery Disability Ratings Law and Regulations Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4 (2016). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2016). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (2016). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When, after careful consideration of the evidence, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased rating claim or in the adjudication of an initial rating when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 506 (2007). The regulations in 38 C.F.R. § 4.118 are applicable to the Veteran's scars, status post right shoulder surgery. Diagnostic code 7804 states in relevant part that: One or two scars that are unstable or painful warrant a 10 percent evaluation. Three or four scars that are unstable or painful warrant a 20 percent evaluation. Note (1) to the diagnostic code states that "An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar." Note (2) to the diagnostic code states 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) to diagnostic code 7804 states, in relevant part, that scars evaluated under diagnostic code 7800 may also receive an evaluation under diagnostic code 7804, if applicable. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2016). Analysis The Veteran has service-connected scars, status post right shoulder surgery. At a February VA examination, the examiner noted that the Veteran had 2 scars on the posterior aspect of his shoulder, one measuring 1 cm long and 0.2 cm in width and the other 0.5 cm long and 0.2 cm wide. There was a scar on the lateral shoulder measuring 2 cm long and 0.5 cm wide. Two scars were on the anterior shoulder, measuring 2 cm long and 0.5 cm wide and 15 cm long and 1 cm wide. There was no pain on examination of the scars themselves and no adherence to the underlying tissue. The examiner described the skin as well healed, and there was no evidence of irregularity, atrophy, shiny or scaliness. The scars were not unstable and there was no elevation or depression. The examiner noted that the scars are not superficial but rather deep because of the nature of the surgery. There was no inflammation, edema, or keloid formation from either scar. The scars were near normal color formation except for hypopigmentation. There was no limitation of motion or function secondary to the scars. The report of the July 2016 VA skin examination reflects that the scars were not painful or unstable, with frequent loss of covering of skin over the scar. The examiner described 4 scars over the anterior and posterior aspects of the right shoulder. The linear scar was reportedly 14 cm. The nonlinear scars were 1.5 cm by 1 cm and 1 cm by 2 cm. The examiner noted that the Veteran did not have any other pertinent physical findings, complications, conditions, or signs or symptoms associated with any scar. The Veteran's scars are currently rated as 10 percent disabling under diagnostic code 7804. The Board concludes that the Veteran's disability picture does not more nearly approximate the criteria for a 20 percent evaluation under diagnostic code 7804. 38 C.F.R. § 4.118. During the March 2016 Board hearing the Veteran stated that he does have pain on all of them but not all the time. He did, however, report constant pain and irritation on his main scar. As discussed above, the VA examiners observed that the Veteran denied pain related to his scars. Specifically, the February 2011 VA examiner opined that the Veteran's pain primarily appears to be with the shoulder joint itself. He further noted that there was no limitation of motion or function secondary to the scar. Further, the Veteran is separately service connected for his chronic dislocation and residual limitation of motion of the right shoulder. The Board also concludes that there is no evidence that the Veteran has three of four scars that are unstable or painful, and thus a 20 percent evaluation under diagnostic code 7804 is not warranted. As for the other diagnostic codes pertaining to scars, DC 7800 pertains to scars and disfigurement of the head, face, or neck. Diagnostic Code 7801 applies to scars not of the head, face, or neck, that are deep and nonlinear; a compensable rating requires evidence of a scar of at least 6 inches. Diagnostic Code 7802 provides a compensable rating with evidence of a superficial, nonlinear scar not of the head, face, or neck, that is of an area 144 square inches or greater. Diagnostic Code 7805 rates based on the effects of the scar under Diagnostic Codes 7800-7804, or based on any disabling effect not considered in a rating provided under Diagnostic Codes 7800-7804. DC 7800 does not apply because the scars do not affect the head, face, or neck. The scars are not of the requisite size to warrant a higher or separate rating under DC 7801 or 7802. DC 7805 does not apply as the VA examiners determined that the scars caused no disabling effects. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In this case, the record does not reflect, and the Veteran does not allege, that he is unemployable due to his scars and the record indicates that the Veteran's scars do not impact his ability to work. Therefore, the Board finds that a TDIU is not raised by the record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Service connection for arthritis of multiple joints is denied. An evaluation in excess of 10 percent for scars, status post right shoulder surgery under Diagnostic Code 7804 is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs