Citation Nr: 1804941 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 16-19 020A ) 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 initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a rating in excess of 10 percent for the service connected scar, right lower leg, residuals of an in-service shrapnel wound. 3. Entitlement to service connection for advanced open angle glaucoma claimed as blindness. 4. Whether new and material evidence was received to reopen the claim of entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from February 1952 to December 1953. He is the recipient of a Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2014 and May 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. 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). The issue of entitlement to an initial rating in excess of 30 percent for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Throughout the pendency of the claim, the Veteran's service connected scar, right lower leg, residuals of an in-service shrapnel wound, is shown by competent medical evidence to be a linear, six-centimeter scar, that is not unstable, but has sometimes been described as painful, and does not impact on the function of the right lower extremity. 2. The Veteran's advanced open angle glaucoma, claimed as blindness, manifested many years after his separation from active service and the evidence does not establish that it is causally related to his active service. 3. In an unappealed November 2007 rating decision, the RO declined to reopen the claim of entitlement to service connection for a lumbar spine disorder. 4. The evidence added to the record subsequent to the August 2007 rating decision does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a lumbar spine disorder or raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the service connected scar, right lower leg, residuals of an in-service shrapnel wound, are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7804 (2017). 2. The criteria for service connection for advanced open angle glaucoma, claimed as blindness, are not met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). 3. New and material evidence has not been received to reopen the claim of entitlement to service connection for a lumbar spine disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2017) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected right lower extremity scar on appeal. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability under review. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). 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 their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2017). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is seeking a rating in excess of 10 percent for his service connected right lower extremity scar. He was initially awarded service connection for this disability by way of an August 1977 rating decision. An initial noncompensable rating was assigned. The scar was awarded a 10 percent rating in September 2006 on the basis of its painful nature. The Veteran filed this claim for an increased rating in January 2014. Disabilities of the skin are evaluated under 38 C.F.R. § 4.118 (2017). Pursuant to the rating schedule, diagnostic code (DC) 7800 rates scars of the head, face, and neck and is therefore inapplicable in this case. DC 7801 applies to scars, other than on the head, face, or neck, that are deep and nonlinear. A deep scar is one associated with underlying soft tissue damage. For a rating in excess of 10 percent under this DC, the scar must be at least 12 square inches in size. DC 7802 applies to scars, other than on the head, face, or neck, that are superficial and nonlinear. A superficial scar is one not associated with underlying soft tissue damage. A 10 percent rating is the highest allowable under this DC. DC 7804 applies to 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. For a rating in excess of 10 percent under this criteria there must be at least three or four scars that are unstable or painful. Under DC 7805, other scars and other effects of scars not considered in a rating provided under diagnostic codes 7800 to 7804 are to be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118 (2015). Initially, the Board observes that there are no clinical records related to the Veteran's scars. The Board has reviewed the available records and the Veteran has not claimed to be receiving outpatient treatment related to his service-connected right lower extremity scar. The Board will, therefore, analyze this claim based upon the examination report, as well as any of the Veteran's statements. With his January 2014 claim, the Veteran merely stated he was experiencing a worsening in the service-connected scar. He provided no details as to the symptoms being experienced. In May 2014, shortly following the Veteran's claim, he was afforded an examination of his scar. The examiner confirmed that there was no history of muscle injury in the foot or leg. Physical examination of the right lower extremity revealed no muscle atrophy, no tenderness, full range of motion and normal tone. The examiner also noted that no scar on the Veteran's extremity was painful, there was no frequent loss of skin over the scar, and the scar was not painful and unstable. The scar measured six centimeters long and was noted as linear. The examiner confirmed that the scar has no functional impact and no impact on the Veteran's ability to work. The Veteran's notice of disagreement does not include any indication of symptoms related to the right lower extremity scar. In fact, while the Veteran disagreed with the 10 percent rating assigned, his statement pertained only to the claim that his scar had impacted his low back. The May 2016 substantive appeal only discusses the fact that the Veteran was treated in service for his right leg, which pertains to service connection and not the symptoms or appropriate rating. Thus, the Veteran's right lower extremity scar is a linear, six-centimeter scar, that is not unstable, but has sometimes been described as painful. The VA examiner confirmed that there is no impact on the function of the ankle caused by the service-connected scar. The Veteran's scar does not meet the criteria for a rating in excess of 10 percent under any of the DCs 7800 to 7805. The remaining DCs within 38 C.F.R. § 4.118 do not pertain to scarring such as the Veteran's and rather pertain to other skin disorders such as dermatitis or eczema, chloracne, leishmaniasis, tuberculosis luposa, bullous disorders, psoriasis, and others. These DCs are not relevant to this analysis. In sum, the Veteran's scar is reported as a 6 centimeter, linear scar, without symptoms other than the pain already compensated by the 10 percent rating assigned. There is no basis upon which to award a rating in excess of 10 percent under any of the rating criteria within 38 C.F.R. § 4.118. Service Connection Generally, service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for a disease diagnosed after discharge, where all evidence, including that pertinent to service, establishes that the disease was incurred therein. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran claims service connection is warranted for his eye disorder, which was claimed as blindness and is diagnosed as advanced open angle glaucoma. The records indeed show this diagnosis, so whether the disability claimed is present is not at issue. The issue in this case is whether the Veteran's eye disorder is causally connected to his service. Initially, the Board observes that the Veteran's service treatment records are largely missing from the record. The RO confirmed in August 2007 that the Veteran's service treatment records were destroyed by fire. In light of the potential absence of a part of the STRs, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (the Board has a heightened duty in a case where the service treatment records are presumed destroyed). This heightened duty has been duly considered in this decision. In addition to the Veteran's DD Form 214 and certain service personnel records, the only portion of the Veteran's service treatment records available for review is his November 1953 service separation examination report. On this report, his vision is noted as 20/20 and there is no indication of any abnormality. In fact, the only abnormality noted on the report was the well healed scar to the right ankle. Following service, there is no indication of an eye disorder for many years. In February 2007, his VA outpatient care notes show he reported surgery for glaucoma twelve years prior, thus, in the mid-1990s, more than forty years following his separation from service. The outpatient treatment records show treatment for the eyes from 2007, but give no indication of an initial onset in service. The Veteran, at the time of his January 2014 claim, suggested his eye disorders were due to heavy smoke and powder experienced in Korea. He, however, did not suggest in-service treatment for his eyes and, again, the separation examination report does not indicate any abnormality with the eyes. The report shows the history of the right ankle wound in Korea; thus, it is presumable that if an injury to the eyes had taken place, it would have also been noted. The Veteran was afforded a VA examination of his eyes in September 2014. He was noted as having advanced open angle glaucoma in both eyes, pseudophakia in both eyes, and corneal leukoma in the left eye. The examiner also noted pseudophakic bullous keratopathy in the right eye, a history of old retinal detachment in the left eye and mild nonproliferative diabetic retinopathy of the right eye. The examiner reviewed the Veteran's record and noted the initial treatment in the San Juan VA Eye Clinic was in April 2005, at which time he had already had his glaucoma surgery. The examiner observed the lack of evidence of an eye disorder in the Veteran's service separation examination report. The examiner opined that the Veteran's eye condition is less likely than not related to his active service. The basis for this examination was the lack of notation of any eye disorder at the time of separation from service or for many years after. The Board also notes the post-service outpatient treatment records are without any indication of a causal connection between the Veteran's eye disorders and his active service. In sum, the Veteran has not indicated any treatment during service for an eye disorder; there is no indication of any eye disorder at the time of his service separation; and, there is no indication of a causal connection in any post-service treatment records or within the VA examination report. To the extent that the Veteran may believe his eye disorders are related to his active service, as a layperson, he is not competent to provide an opinion concerning this matter requiring medical expertise. Accordingly, the claim for service connection for advanced open angle glaucoma, claimed as blindness, must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim, so that doctrine is not applicable. New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c) (2012). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). In this case, the Veteran's claim for a back disorder was originally denied by way of an August 1977 rating decision. At that time, the RO found there was no objective orthopedic physical findings in the lower back. The Veteran did not appeal this decision and it became final. 38 U.S.C. § 4005(c) (1976); 38 C.F.R. §§ 3.104, 19.153 (1977) In November 2007, the RO issued a rating decision and declined to reopen this previously decided claim finding that the evidence is not new and material. At this time, the RO recognized the presence of a disability, but found no reason to reopen the claim because there was no reasonable possibility of substantiating the claim. The RO referenced review of the Veteran's post-service VA treatment records and noted that treatment began for his lumbar spine many years after his active service and found no evidence to suggest a causal connection between the current lumbar spine disability and the Veteran's active service. The Veteran did not appeal this November 2007 rating decision and it, therefore, became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.1103 (2017). The records available for review at the time of this last prior final rating decision included the Veteran's November 1953 service separation examination and outpatient treatment records dated through October 2007. The separation examination shows a normal spine and the only injury noted is the in-service wound to the right ankle. The post-service treatment records show a December 1975 report of back pain for six to seven years; thus, with an onset in approximately 1968 or 1969. The other evidence of records show the existence of degenerative changes in the spine in January 1976 and in more recent records, but no suggestion of a causal connection to active service. In January 2014, the Veteran again raised the claim for service connection for a back disorder, this time claiming it to be secondary to his service connected right lower extremity scar. Initially, while the RO did not previously consider whether service connection was warranted for a back disability on a secondary basis, separate theories in support of a claim for a particular benefit are not equivalent to separate claims, and a final denial on one theory is a final denial on all theories. New and material evidence is necessary to reopen a claim for the same benefit asserted under a different theory. Robinson v. Mansfield, 21 Vet. App. 545 (2008); Roebuck v. Nicholson, 20 Vet. App. 307 (2006). Indeed, mere offering of an alternative theory of entitlement does not constitute new and material evidence sufficient to reopen the claim without evidence to support that particular theory, i.e., new and material evidence that raises a reasonable possibility of substantiating the claim. Roebuck, 20 Vet. App. at 307; Bingham v. Principi, 18 Vet. App. 470 (2004), aff'd 421 F.3d 1346 (Fed. Cir. 2005). The evidence added to the record since November 2007 includes ongoing outpatient treatment records showing continuing degenerative changes in the Veteran's lumbar spine. Also of record is the report of an August 2014 VA examination. This report shows the Veteran's report of a development of low back pain during the prior twenty years; thus, dating to the mid-1980s. The diagnosis was noted as lumbar spine spondylosis and discogenic disease. The RO requested an opinion as to the secondary claim. The examiner found the Veteran's lumbar condition to be secondary to changes that occur as a part of the normal aging process and noted that the right leg condition has an unrelated pathophysiology to the lumbar spine condition. While new evidence has been submitted into the record since November 2007, the new evidence is not material, because it does not lend support to the claim. The records added to the record since November 2007 are not material, because they do not tend to establish a previously unestablished fact, namely a causal connection between the Veteran's lumbar spine and his active service or his service-connected disability. Moreover, the Board reviewed the Veteran's statements, but they are also "new" as they essentially restate his claim, thus they are cumulative of previously considered statements suggesting that service connection is warranted for a lumbar spine disorder. Thus, the Board finds that new and material evidence has not been submitted, and reopening of the claim for service connection for a lumbar spine disability is not in order. ORDER A rating in excess of 10 percent for the service connected scar, right lower leg, residuals of an in-service shrapnel wound, is denied. Service connection for advanced open angle glaucoma, claimed as blindness, is denied. New and material evidence having not been received, reopening of a claim of entitlement to service connection for a lumbar spine disorder is denied. REMAND The Veteran most recently underwent VA examination related to his service-connected PTSD in August 2014. At that time, the examiner found the Veteran to meet the criteria for PTSD and diagnosed him with an adjustment disorder with anxiety. The only symptoms reported by the examiner were anxiety and chronic sleep impairment. The Veteran at that time reported having lots of friends. 2015 VA outpatient treatment records show an ongoing diagnosis of PTSD and the Veteran, in April 2015, was described as "[a]lways quiet, anhedonic and depressed." The Board observes that the rating criteria for PTSD include disturbances in motivation and mood within the criteria for a 30 percent rating, and near-continuous depression within the criteria for a 50 percent rating. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. The April 2015 report also includes notation of the Veteran talking in his sleep, including having whole conversations. In June 2015 and May 2016, the Veteran also suggested he was unable to work due, at least in part, to his PTSD, and he suggested a 100 percent rating is warranted. Because the Veteran's PTSD has seemingly worsened since the August 2014 VA examination, the Board finds a remand is necessary in order to afford him a more contemporaneous examination of his disability. 38 U.S.C. 5103A (2012); 38 C.F.R. § 3.159(c)(4) (2017); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide a veteran with a thorough and contemporaneous medical examination). Additionally, on remand, all updated VA treatment records related to the Veteran's psychiatric disorder should be obtained and associated with the claims file. The record before the Board presently includes VA treatment records dated through October 1, 2015. 38 C.F.R. § 3.159(c)(2) (2017). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associate with the record before the Board any ongoing VA treatment records related to the Veteran's service-connected psychiatric disorder dating since October 1, 2015. 2. Once the record is developed to the extent possible, afford the Veteran a VA examination to determine the current severity of his service-connected psychiatric disorder. In addition to dictating objective examination results, the examiner's report should describe the effects of the Veteran's disability on his occupational functioning and daily activities. A complete rationale should be given for all opinions and conclusions expressed. 3. After completing the above actions, to include 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 should be readjudicated based on the entirety of the evidence. If any benefit remains 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 Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs