Citation Nr: 1751202 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 10-19 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right lower leg disorder, to include as due to service-connected right foot and ankle disorder. 2. Entitlement to service connection for a left lower leg disorder, to include as due to service-connected right foot and ankle disorder. 3. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals related to Department of Veterans Affairs (VA) nose and tonsil surgery. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from June 1973 to April 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2009, February 2010, and May 2010 rating decisions by the VA Regional Office (RO) in Waco, Texas. In November 2016 the Board most recently remanded the issues on appeal for additional development. The issue of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals related to VA nose and tonsil surgery and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A right leg disability, diagnosed as right lower extremity hyperpigmentation chemical scar, is not attributable to service or etiologically related to service-connected disabilities. 2. A left leg disability, diagnosed as left lower extremity cyst with residual of scar and cutaneous numbness is not attributable to service or etiologically related to service-connected disabilities. CONCLUSIONS OF LAW 1. A right leg disability, diagnosed as right lower extremity hyperpigmentation chemical scar, was not incurred in or aggravated by service and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. A left leg disability, diagnosed as left lower extremity cyst with residual of scar and cutaneous numbness was not incurred in or aggravated by service and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Here, the Veteran was provided with the relevant notice and information. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claims and all appropriate development was undertaken in this case. The Veteran has not alleged any notice or development deficiency during the adjudication of the claims. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also 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 medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) 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). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). A claim for secondary service connection generally requires competent evidence of a causal relationship between the service-connected disability and the nonservice-connected disease or injury. Jones (Wayne L.) v. Brown, 7 Vet. App. 134 (1994). There must be competent evidence of a current disability; evidence of a service-connected disability; and competent evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). With regard to the matter of establishing service connection for a disability on a secondary basis, the United States Court of Appeals for Veterans Claims (Court) has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a nonservice-connected disability is proximately due to or the result of a service connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. The Veteran claims that he has pain as well as muscular and/or neurological problems in his legs, and specifically in the area between his knees and ankles. However, the service treatment records (STRs) do not reflect any complaints, findings, treatment, or diagnosis of right or left leg disorders and the separation examination yielded normal findings. Post-service July 2011 tibial and fibular x-rays were normal. Private records in 2015 noted that the Veteran had a chemical burn scar on the left anterior leg. The Veteran also had a left leg scar from a tumor that had been excised. He had residual paresthesia. An April 2015 VA examination did not reflect right or left leg disabilities. The claim was most recently remanded to determine what, if any, disabilities the Veteran has with regard to his legs and specifically, disabilities existing between the knees and ankles, since the record did not reflect definitive diagnoses or etiology opinions. In compliance with the Board's recent remand decision, the Veteran was afforded a VA examination in December 2016. A scar evaluation diagnosed an incident which occurred at a post-service employment in 1980. The examination also diagnosed a posterior leg lower leg epidermal cyst, post excision, with residual scar and adjacent cutaneous numbness which also occurred post-service in 2005. The examiner referred to a March 2005 VA record documenting a knot on the back of leg which was assessed as an epidermal cyst on the back of the lower left extremity. The examiner explained that epidermal inclusion cysts occur because of implantation of epidermis elements in the dermis with proliferation of the epidermal cell. The etiology is unknown, but results from the sequestration of epidermal rests during embryonic life, occlusion of the pilosebaceous unit, or traumatic or surgical implantation of epithelial elements. A VA examiner indicated that it is less than likely the Veteran has a right or left lower leg condition, between the knees and ankles, caused by military service, caused by a service-connected condition, or aggravated by a service-connected condition. The examiner noted that the Veteran reported that the discoloration of the right anterior lower leg and dorsal occurred following use of a chemical used to clean pipes when he was working for a private company in the 1980's, after service. The examiner also noted that the STRS did not reflect a discoloration scar to left anterior leg nor was such shown during service or the immediate time frame after service. Thus, this scar was unrelated to military service, but rather was related to a post-military occupation. The examiner noted that both the recent April 2015 and December 2016 examinations indicated no right or left leg issues between the knee and ankle, including normal vascular findings in the lower leg (pedal and posterior pulses), normal muscle strength and size without atrophy, and neurological examination. That is, the examiner indicated that there was no chronic condition or diagnosis between the knee and ankle. The examiner further indicated that as there is a specific time and cause of the right lower extremity hyperpigmentation scar, it was not caused by another service-connected condition. Likewise, as there has been no treatment or intervention, there is no evidence of suggest aggravation of the condition by a service-connected condition. With regard to the left leg, the examiner also stated that as there is a specific time and cause of the left lower extremity cyst with residual of scar and cutaneous numbness scar, the medical record showed that it is not caused by another service-connected condition. The examiner explained that surgical excision is within the normal progression and treatment of the cyst condition. Moreover, as there has been no addition treatment or intervention, there is no evidence of suggest aggravation of the condition by a service-connected condition. Thus, the examiner opined that there was no clinical support for there being a right or left lower leg condition between the knees and ankles either related to or caused service or a service-connected condition, or aggravated by a service-connected condition. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, the VA examiner was aware of the Veteran's medical history, provided a fully articulated opinion, and also furnished a reasoned analysis. The examiner discussed the inservice findings and lack thereof, the post-service findings, and current diagnoses, and the circumstances regarding the inception of those diagnoses. The Board therefore attaches significant probative value to this opinion, and the most probative value in this case, as it is well reasoned, detailed, consistent with other evidence of record, and included an accurate review of the background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The Board has considered the Veteran's own opinion that he has leg disabilities which are related to service or service-connected disabilities. However, the Veteran's opinion by itself is outweighed by actual contemporaneous evidence in this case such as the Veteran's normal STRs including the normal separation examination as well as the post-service evidence showing that the two scars occurred after service and are unrelated thereto as well as unrelated to service-connected disabilities on any basis including aggravation. The contrary findings of the VA examiner, a medical professional who considered the pertinent evidence of record, considered the Veteran's contentions, and found against such a relationship between the scars and service, and/or service-connected disabilities is accorded more probative value. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claims, and they must be denied. ORDER Service connection on a direct and secondary basis for a right leg disability, diagnosed as right lower extremity hyperpigmentation chemical scar is denied. Service connection on a direct and secondary basis for a left leg disability, diagnosed as left lower extremity cyst with residual of scar and cutaneous numbness is denied. REMAND The Board previously remanded this case for an opinion regarding whether the Veteran is entitled to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals related to VA nose and tonsil surgery. Compensation under 38 U.S.C.A. § 1151 is granted for additional disability or death if the additional disability or death was not the result of willful misconduct, the actual cause of the additional disability or death was VA hospital care, medical or surgical treatment, or examination, and the proximate cause of the additional disability or death was either carelessness, negligence, lack of proper skill, error in judgment or similar fault, or an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a) (West 2014); 38 C.F.R. §§ 3.361 (c), (d) (2017). The existence of additional disability is determined by comparing the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination that forms the basis of the claim for compensation to the Veteran's condition after the care, treatment, or examination has ended. 38 C.F.R. § 3.361 (b). However, the mere fact that the Veteran received care, treatment, or examination and has an additional disability does not establish actual causation. Evidence must show that the VA hospital care, medical or surgical treatment, or examination resulted in additional disability or death. 38 C.F.R. § 3.361 (c)(1). If the additional disability or death was caused by the Veteran's failure to follow properly given medical instructions, then the additional disability or death was not caused by VA hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361 (c)(3). Further, VA hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of the disease or injury for which it was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361 (c)(2). The proximate cause of disability or death is the action or event that directly caused the disability or death. It must be more than a remote contributing cause. 38 C.F.R. § 3.361 (d). The proximate cause is VA carelessness, negligence, lack of proper skill, error in judgment, or examination if VA either failed to exercise the degree of care expected of a reasonable health care provider, or provided hospital care, medical or surgical treatment, or examination without the Veteran's informed consent. 38 C.F.R. §§ 3.361 (d)(1), 17.32. Whether the proximate cause of additional disability was an event not reasonably foreseeable is determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable, only an event that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with informed consent procedures. See 38 U.S.C.A. § 1151; 38 C.F.R. §§ 3.361, 17.32. The proximate cause of additional disability or death is an event not reasonably foreseeable if a reasonable health care provider would not have considered the event an ordinary risk of the provided treatment. A medical opinion was provided in April 2017. It was noted that the Veteran had undergone nasal/tonsil surgery in March 2006, but there was no additional disability resulting from that surgery and there was no current disability or residuals due to the VA administered March 1996 nasal/tonsil surgery. It was indicated that the current diagnosis of rhinitis was also less likely than not incurred in or caused by injury, treatment, or other event in the service. This opinion is inadequate. As noted by the Veteran's representative, the examiner did not address the lay evidence. There is lay evidence from the Veteran and his spouse asserting that the Veteran has experienced additional disability post-surgery consisting of substantial drainage/rhinitis. The current diagnosed condition is rhinitis, but the examiner indicated that the surgery did not result in any residuals, without addressing the lay evidence that this diagnosis was the residual additional disability. Thus, an addendum is needed. With regard to a TDIU, the 38 U.S.C.A. § 1151 issue should initially be resolved as it may impact a resolution of that issue. Moreover, there is no current medical opinion regarding the functional impairment, including as it relates to the Veteran's capacity to work, caused by his service-connected disabilities alone or in combination with each other. Pending the outcome of the 38 U.S.C.A. § 1151 issue, the Veteran currently does not meet the schedular criteria for a TDIU, thus an extraschedular rating must be considered. Accordingly, the case is REMANDED for the following action: 1. Obtain a VA medical addendum. The examiner should indicate in his/her report whether the record was reviewed. The examiner should provide an opinion as to the following questions: (1) Did the Veteran sustain any additional disability either directly or through aggravation of his preexisting condition, as a result of the VA March 1996 nasal/tonsil surgery. If so, what is that additional disability-the examiner should address whether rhinitis is an additional disability that was either caused by or if found to be preexisting, aggravated by VA treatment/surgery; (2) If such additional disability was sustained, was it the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care or medical or surgical treatment; (3) Did VA fail to exercise the degree of care that would be expected of a reasonable health care provider; and (4) Was the proximate cause of any additional disability an event not reasonably foreseeable. All findings, conclusions, and opinions must be supported by a clear rationale. 2. Afford the Veteran a general medical examination of his service-connected disabilities (second degree burn scars of the right chest; second degree burn scars of the right hand; and right foot and ankle disability). The examiner should comment on the functional impairment caused solely by the Veteran's service-connected disabilities either alone or in combination with each other. An assessment of the Veteran's day-to-day functioning should be made. The examiner should address the Veteran level of functioning, particularly with regard to demonstrated capacities for work-like activities. 3. Review the medical opinion(s) obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, return the case to the examiner for completion of the inquiry. 4. Thereafter, determine whether it is appropriate to refer the Veteran's TDIU claim to the Under Secretary for Benefits or the Director of Compensation and Pension Services for consideration of assignment of a TDIU on an extraschedular basis. 5. Readjudicate the claims on appeal in light of all of the evidence of record. If any issue remains denied, the Veteran should be provided with a supplemental statement of the case as to any issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter or 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 2014). S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs