Citation Nr: 1801174 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-31 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a skin condition, to include chloracne. 3. Entitlement to a compensable initial disability rating for scar near left orbit ("left eye scar"). 4. Entitlement to a compensable initial disability rating for scar, right knee cap ("right knee scar") REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD T. Talamantes, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1970. These matters come before the Board of Veterans Appeals' (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. Jurisdiction over the Veteran's claim is currently with the RO in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge in an April 2017 video conference hearing. A transcript of that hearing has been associated with the file. The issues of left eye scar and chloracne are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. During service, the Veteran earned the Combat Medial Badge and the Purple Heart, among other decorations. 2. There is a proximate balance of evidence that the Veteran has a current diagnosis of PTSD, related to in-service stressors. 5. The Veteran's right knee scar does not cover an area of six square inches or greater, nor is it unstable or painful, and it does not result in any additional disabling effects. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1154, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for a compensable rating for right knee scar have not been met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.118, Diagnostic Codes 7801, 7802, 7804, 7805 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Applicable Laws and Regulations Veterans Claims Assistance Act of 2000 The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.§§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a presently existing 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. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999). With regard to the claim for PTSD, service connection for PTSD generally requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If the evidence establishes the Veteran engaged in combat, and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(2). A Veteran's lay testimony alone also may establish the occurrence of the claimed in-service stressor if: (1) the claimed stressor is related to his fear of hostile military or terrorist activity; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and (3) a VA psychiatrist or psychologist, or contract equivalent, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and the Veteran's symptoms are related to the claimed stressor. 38 C.F.R. § 3.304 (f)(3). For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. The Board further notes that the law mandates resolving all reasonable doubt in favor of a claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In Gilbert, the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the Veteran prevails. Increased ratings Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson at 126; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Under Diagnostic Code 7801, a 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear, at least six square inches (39 square centimeters). Id. Higher ratings are available for deep and linear scars that affect a larger area, measuring at least 12 square inches. A deep scar is one associated with underlying soft tissue damage. See 38 C.F.R. § 4.118, Diagnostic Code 7801, Note (1). Under Diagnostic Code 7802, a maximum 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are superficial (not associated with soft tissue damage) and nonlinear, affecting an area or areas of 144 square inches (929 sq. cm.) or greater. Id. Under Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable (frequent loss of covering of the skin over the scar) or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful, with a maximum 30 percent rating warranted for five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1). If one or more scars are both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (2). Scars can receive separate evaluations under Diagnostic Codes 7800, 7801, 7802, and 7805, despite also being rated under Diagnostic Code 7804. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (3). Under Diagnostic Code 7805, any other scars, including linear scars, are to be rated based on any disabling effects and the appropriate diagnostic code for such effects. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2017). See 38 C.F.R. § 4.118, Diagnostic Code 7805. Evidence and Analysis Posttraumatic Stress Disorder The Veteran served in Vietnam as a combat medic. The Veteran's DD 214 shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Expert (M-16) Medal, the Bronze Star Medal, the Combat Medical Badge, the Army Commendation Medal, the Republic of Vietnam Campaign Medal w/Dev 60, and the Purple Heart. He testified that he began experiencing symptoms of PTSD such as violent nightmares, the constant need to check his home, and isolation shortly after service, and thereafter. His wife testified that shortly after getting out of service the Veteran started having problems sleeping at night-staying awake to secure the house and that he still exhibits these symptoms. She described instances where the Veteran would have violent nightmares, fight in his sleep and physically hit her, causing her to sustain a black eye and bruises. The Veteran was afforded a VA examination in November 2012. The examiner stated that the Veteran does not have a diagnosis of PTSD or any other mental disorder that conforms to DSM-IV criteria. Later in the report the examiner referenced the Veteran's stressors, stating that they are adequate to support the diagnosis of PTSD, but then stated again that the Veteran does not meet the full criteria for PTSD. In a December 2013 private neurological examination, the examiner noted the reported stressors of the Vietnam War and the Veteran's brother being killed in a fiery car crash two months prior. In a February 2014 PTSD Disability Questionnaire (DBQ), the Veteran was diagnosed with PTSD and dysthymia by a VA psychiatrist. The symptoms specifically attributed to his PTSD were listed as rumination, flashbacks and avoidance. The psychiatrist checked those symptoms of the Veteran that met the criteria used for a PTSD diagnosis in accordance to DSM-IV, noting that he has experienced an event that involved actual or threatened death or serious injury and that his response to that involved fear, helplessness or horror. A July 2016 VA medical treatment note indicates a diagnosis of chronic PTSD. The record shows combat trauma. There is a record showing a diagnosis of PTSD under the DSM-IV criteria, and VA treatment records show that the Veteran has been diagnosed to have, and treated for, PTSD related to his combat stressors. Although the November 2012 VA examiner concluded that the Veteran did not meet all the criteria to support a diagnosis of PTSD, the records from other competent sources that show such a diagnosis related to combat stressors places the evidence at least in equipoise on the question of whether the Veteran has a current diagnosis of PTSD due to in-service stressors. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran has a current diagnosis of PTSD and that his PTSD is related to his in-service combat stressors. As such, service connection is warranted. Right Knee Scar The Veteran's right knee scar is rated as noncompensable under Diagnostic Code 7804. He contends that his knee scar disability warrants a compensable rating. He testified during the April 2017 hearing that his scar was painful, every once in a while affecting the motion of it and the rotation of it, but that he has "been able to kind of just, you know, live with that." Upon review of the record, there is no probative evidence to indicate that the Veteran's right knee scar disability warrants a compensable rating. In November 2012 the Veteran was afforded a VA examination. The VA examiner diagnosed him with a well healed transparent scar on the right knee cap. The examiner noted that the scar was healthy, non-tender and measured five centimeters. Upon examination, it was noted that his right knee scar was not painful, or unstable with frequent loss of covering of skin over the scar. The medical evidence of record reflects that the Veteran's scar was not tender to touch on objective examination. However, during the April 2017 Board hearing, the Veteran testified that his right knee scar was painful. The Board notes that the Veteran is competent to report the nature and severity of his symptoms, but given the lack of consistent reporting of pain and in light of the fact that the objective evidence of record does not reflect that the Veteran's scar is painful, the Board finds his testimony with respect to the right knee scar is outweighed by the medical evidence of record. As stated above, a compensable rating is warranted if the area of the scar is at least six square inches or at least 144 square inches. See Diagnostic Codes 7801 and 7802. Here, the right knee scar measures five centimeters, so is not compensable under either rating. Under Diagnostic Code 7804 a compensable rating is warranted if the scar is unstable or painful. Unstable is defined as frequent loss of covering of skin over the scar. As noted above, the November 2012 VA examiner clearly noted that the Veteran's right knee scar was not painful or unstable with frequent loss of covering of skin over the scar. Here, the only evidence that suggests the scar is painful is the Veteran's one time subjective reporting of such during the April 2017 hearing, expressed decades after the scar was produced and in the context of a claim for increase (creating an incentive to make this report) which complaint was not made when undergoing medical evaluation. The Board considers a report from an evaluation specifically undertaken by medical personnel to ascertain, at least in part, whether the scar is painful should be accorded greater probative weight than the Veteran's report of his complaints at a hearing. Finding an absence of pain or that the scar is unstable, a compensable rating under this code is not warranted. The Board also finds that a compensable rating is not warranted under any other Diagnostic Code as the Veteran's scar is not located on his head, face, or neck to warrant consideration under Diagnostic Code 7800 and there are no disabling effects to warrant application of Diagnostic Code 7805. In view of the foregoing, the Board finds that the Veteran does not meet or nearly approximate the criteria for a compensable rating for his service-connected right knee scar under any of the potentially applicable Diagnostic Codes, to include as staged or separate ratings. ORDER Service connection for PTSD is granted. A compensable rating for right knee scar is denied. REMAND The Board's review of the record reveals that further development is warranted before the left eye scar claim or the chloracne claim on appeal can be decided. The last VA examination to assess the Veteran's left eye scar was in November 2012. During the April 2017 hearing the Veteran testified that the scar throbs and is painful. He testified that he had been to the emergency room two or three times about eight months prior because of the pain in his eye. He stated that every once in a while he experiences blurred vision in his left eye. He described an involuntary twitching of his eye, stating that it is always present. During the Board hearing, it was noted that the eye twitch was visible. As this indicates that the disability many have increased in severity since the last examination, VA is required to afford him another. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). With respect to the Veteran's claimed chloracne condition, he has not been afforded a VA examination. The record does not include a diagnosis of any skin condition, however, he provided credible testimony describing in-service events involving prolonged periods of time where his skin was wet; his wife testified that she noticed rashes on his legs, back and arms shortly after he returned from Vietnam; and he several photographs that indicate some type of skin condition appears to be present currently. Therefore, the Board finds that the Veteran should be afforded an appropriate medical examination to determine the nature and etiology of any skin condition, to include whether any may be a result of presumed herbicide agent exposure. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any additional relevant records of VA and private treatment records he would like considered in connection with his appeal. Provide the Veteran with any necessary releases. Any identified, non-duplicative records should be sought and associated with the Veteran's claims file. 2. The AOJ should schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his left eye scar disability. The Veteran's electronic claims file should be made available to and reviewed by the examiner. Any tests or studies deemed necessary should be conducted. The examiner should be asked to elicit a complete history from the Veteran noting his reports of pain, twitching and periodic blurred vision in the area of his scar. The examiner should provide an opinion as to whether the Veteran's twitching is a symptom of his service-connected left eye scar disability, whether it is a distinct disability, or whether it is a symptom of a separate disability. In any event, some discussion of the cause of the twitching should be provided.. 3. Schedule the Veteran for a VA skin examination with an appropriate clinician to determine the nature and etiology of his claimed skin condition, to include chloracne. The Veteran's electronic claims file should be made available to and reviewed by the examiner. Any tests or studies deemed necessary should be conducted. The examiner should be asked to elicit a complete history from the Veteran. Based on examination of the Veteran and review of the record, the examiner should provide opinions that respond to the following: (a) The examiner should identify each skin condition found at any time during the appeal period (from June 2012). (b) Following review of the claims file and examination of the Veteran, the examiner should provide an opinion regarding whether it is at least as likely as not (i.e., probability of 50 percent) that any skin condition (s) began in service, or is otherwise related to his period of active duty service, to include as due to exposure to Agent Orange. If no current skin condition has existed at any time since June 2012, this should be made clear. The examiner is asked to provide a complete a rationale for all opinions offered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered should be provided. 4. After completion of the above and any further development deemed necessary by the AOJ, the claims should be re-adjudicated. If any benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs