Citation Nr: 1802298 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-33 581 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine. 2. Entitlement to an increased rating for a laceration scar of the right index finger, currently rated noncompensable. REPRESENTATION Appellant represented by: Larry Schuh, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Hammad Rasul, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1978 to November 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which denied service connection for a low back condition and denied an increased rating for a laceration scar of the right index finger, currently rated noncompensable. In November 2017, the Veteran testified during a hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. As for the matter of representation, the Board notes that the Veteran was previously represented by Disabled American Veterans (as reflected in a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, executed in March 2014). In October 2014, the Board received a VA Form 21-22a appointing private attorney Larry Schuh as the Veteran's representative. The Board recognizes the change in representation. This appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) claims processing system. The Board notes that, in addition to the VBMS file, the Veteran has a paperless, electronic Virtual VA file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACTS 1. The evidence is at least evenly balanced as to whether the Veteran's DDD of the lumbar spine is related to service. 2. The evidence is at least evenly balanced as to whether the Veteran's laceration scar of the right index finger more closely approximates one scar that is painful or unstable. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for DDD of the lumbar spine have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for a 10 percent rating, but not higher, for a laceration scar of the right index finger have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321 (b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.118, Diagnostic Code (DC) 7804 (2017) . REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Board notes that VA has certain duties to notify and assist the Veteran. See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). Given the favorable action taken below with regard to the service connection claim, discussion of whether those duties have been accomplished is not required with regard to that claim. As to the increased rating claim, neither the Veteran nor his attorney has raised any other issues with regard to the duty to notify or duty to assist, nor have any such issues been raised by the evidence of record. 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 a duty to assist argument). II. Service Connection The Veteran contends that he suffers from a lower back disability as a result of a fall in service during boot camp. He stated that since that incident, he has had low back pain, which has progressed over the years. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §1131; 38 C.F.R. § 3.303 (a). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service treatment records document that the Veteran sought treatment for lower back pain in August 1980, reporting a two years history of back pain. In December 2013, the Veteran was afforded a VA examination. The examiner diagnosed the Veteran with a DDD of the lumbar spine. The Veteran reported that he has had constant pain for several years. The examiner noted that the Veteran did not have radicular pain, ankylosis, intervertebral disc syndrome (IVDS), or other neurological abnormalities. The examiner noted that the Veteran's acute right lumbar strain from service resolved in 1980 and that the Veteran developed left lumbar pain over the past few years. The examiner opined that the Veteran's DDD of the lumbar spine were not likely caused by or related to his in-service back strain. The examiner reasoned an acute lumbar strain does not cause DDD. In a January 2014 statement from the Veteran's friend, he stated that he was with the Veteran during boot camp in August 1978. The Veteran's friend further stated that he witnessed the Veteran fall from a rope climbing drill. The Veteran's friend described that the Veteran was almost at the top of his climb when he missed the rope with his hands and he fell on the mat on his back with a "thud" noise. He stated that the Veteran was on the ground while the rest of the company stood there and watched until someone went and asked the Veteran if he was okay and the rest of the company gathered around him. The Veteran's friend described that he could tell that at the time that the Veteran was hurting from the fall. In July 2014, the Veteran was afforded another VA examination. The examiner diagnosed the Veteran with degenerative arthritis of the spine. The Veteran reported that he fell off a rope climb about 20 feet during basic training in service. The Veteran described his pain as constant and unremitting. The examiner noted that the Veteran did not have radicular pain, ankylosis, intervertebral disc syndrome (IVDS), or other neurological abnormalities. The examiner opined that it is less likely than not that the Veteran's in-service injury caused his current back disability. The examiner reasoned that although the Veteran reported back pain during service, he denied a back injury related to service on numerous occasions. During the November 2017 Board hearing, the Veteran stated that he hurt his back during boot camp in service after he fell 18 to 20 feet to the ground during a rope climbing exercise. The Veteran also stated that he was treated at Great Lakes Naval Hospital after the injury but that he has been unable to locate his records there. The Veteran reported that after his injury, the pain subsided for a while but it returned two months later when he was assigned to carry bags filled with food waste. The Veteran reported that he went to the doctor and he was put on light duty. The Veteran stated that his back continued to hurt after that. The Veteran stated that his back pain has gotten progressively worse since he left service. The Veteran also stated that he sought treatment with a chiropractor in 1985 or 1986 and that he tried to retrieve his records but he was told by the chiropractor's office that his records were destroyed. The Veteran also stated that he saw another doctor in 1989 or 1990 who told him his back pain was degenerative in nature and that his back condition was most likely related to his 18 to 20 foot fall in service. As indicated above, the VA examiners did not fully address the Veteran's contentions of intermittent back pain, occurring regularly through the years, as noted in his lay reports and in the medical evidence since service. Additionally, the examiners did not fully address the Veteran's in-service two year history of back pain since he injured his back during boot camp. Rather, the examination reports focused on a lack of evidence of treatment between the Veteran's in-service incident of a back strain during service, and his current back disability diagnoses. However, the lack of treatment is not dispositive if there is competent, credible evidence of symptoms during the relevant time period, as is the case here. Thus, the opinions are inadequate. See Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that a VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). Moreover, there is evidence of the existence of a positive medical nexus opinion, as testified to by the Veteran during the November 2017 Board hearing. Lay evidence is competent when the layperson is reporting a contemporaneous medical diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran here testified that he was seen by a physician, who diagnosed his back disability and provided an opinion as to etiology - namely, that the disability had origins in the Veteran's military service. While the general nature of the opinion relayed by the Veteran reduces its probative weight, Jandreau indicates that the Veteran is competent to report such an opinion and the Board finds the Veteran's testimony in this regard credible. The opinion is therefore entitled to at least some probative weight. Cf. Hogan v. Peake, 544 F.3d 1295, 1297-98 (Fed. Cir. 2008) (even if flawed because stated uncertainly, an opinion from a licensed counselor regarding the etiology of a claimant's psychological disorder must be considered as "evidence" of whether the disorder was incurred in service). When viewed against the negative nexus opinion provided in December 2013 and June 2014, which the Board finds has little weight, and taken together with the Veteran's competent and credible lay statements indicating a continuity of symptoms since service and up to the present day, the evidence is at least evenly balanced as to whether there is a nexus between the Veteran's current DDD of the lumbar spine and his in-service back injury. The Veteran reported a two year history of back pain during service in 1980, starting with his initial injury during boot camp in 1978. The Veteran further noted post-service pain, from the mid-1980s and early 1990s on through the present day. Taken together as a whole, and noting the evidence of a continuity of symptoms, the evidence of record points to a nexus between the Veteran's in-service injury in 1978 and his current diagnosis of a DDD of the lumbar spine. At this point, even though a remand with the directive of obtaining yet another nexus opinion regarding the DDD of the lumbar spine could be ordered, it would not be appropriate because a request for another opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304 (c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination");Mariano v. Principi, 17 Vet. App. 305, 312 (2003). For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's DDD of the lumbar spine is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for this disability is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2008) (lay evidence may suffice to prove service connection on its own merits). III. Increased Rating Disability evaluations are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The Veteran's laceration scar of the right index finger is currently rated as noncompensable under DC 7805, which instructs to evaluate the effects of scars under DCs 7800, 7801, 7802, and 7804. Here, the Veteran's scar is to his right index finger and has been described as linear and superficial. As such, DCs 7800 (scars of the head, face, or neck), 7801 (deep and nonlinear), and 7802 (superficial and nonlinear) are not for application. As such, his laceration scar of the right index finger should be rated under DC 7804 for unstable or painful scars. See 38 C.F.R. § 4.118. Under DC 7804 provides that one or two scars that are unstable or painful are rated as 10 percent disabling. Three or four scars that are unstable or painful are rated as 20 percent disabling. Five or more scars that are unstable or painful are rated as 30 percent disabling. Note (1) to DC 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides 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) provides that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive a rating under this diagnostic code, when applicable. 38 C.F.R. § 4.118. A December 2013 VA examination report reflects a scar on the right second digit finger. The Veteran reported that in extremely cold weather conditions, his pain is increased significantly. The examiner noted that the scar is linear and remained stable for many years. Upon examination, the examiner noted that the scar was not painful or unstable. The scar measured 7 centimeters (cm) in length. A July 2014 VA examination report reflects a scar on the right second digit finger. The Veteran reported that suffers from painful motion, grip instability, and tendon damage as a result of his scar. The examiner noted the Veteran's symptoms as having a tearing sensation and a sensation of retained glass on a part of his scar. The Veteran also described sensitivity to increased cold. The Veteran reported a constant sensation of a tearing pain. During the November 2017 Board hearing, the Veteran testified his scar is painful. The Veteran further explained that his scar causes him pain when he tries to lift anything or grip anything tight and that the pain increases when the temperature falls below 45 degrees. The Veteran clarified that in his previous statement to a VA examiner, he tried to explain that his painful scar feels like as if pressure is being put on his tendon, however, the Veteran stated that the examiner misunderstood him to mean that the pain in his finger is not from the scar but from pressure on his tendon. As an initial matter, the Board notes that the December 2013 VA examiner did not address the Veteran's contention that he experienced pain from his scar in extremely cold weather. While July 2014 VA examiner noted the Veteran's subjective reports of pain to the scar, he noted that pain upon was not found. However, the Veteran stated during his November 2017 hearing that he experienced constant pain from his scar that increased in cold temperatures. The Board notes that the Veteran, as a layperson, is competent to report on matters observed or within his personal knowledge, to include symptoms such as pain and numbness relating to his scar. See 38 C.F.R. § 3.159 (a)(2); Jandreau, 492 F.3d at 1376-77. Therefore, the evidence is at least evenly balanced as to whether the Veteran's laceration scar of the right index finger more closely approximates one scar that is painful or unstable under DC 7804. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, a 10 percent rating for the Veteran's laceration scar of the right index finger is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. A rating higher than 10 percent is not warranted because there is no evidence or argument that the Veteran has more than one scar which is painful or unstable, or any other symptoms that would more nearly approximate the criteria for a higher rating under any potentially applicable diagnostic code. The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See 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). ORDER Service connection for DDD of the lumbar spine is granted. Entitlement to an increased rating of 10 percent, but not higher, for a laceration scar of the right index finger, is granted subject to controlling regulations governing the payment of monetary awards. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs