Citation Nr: 1804956 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 16-51 325 ) 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 compensable evaluation for scar on abdomen, residuals of burn injury. 2. Entitlement to service connection for a psychiatric disorder, to include schizophrenia, insomnia, and alcohol use disorder; to include as due to exposure to herbicide agents. 3. Entitlement to service connection for a bilateral leg disorder, to include as due to exposure to herbicide agents. ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from November 1963 to December 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Board notes that after the Veteran filed a January 2016 notice of disagreement in response to the November 2015 rating decision's denial of his claims, the Veteran was furnished with a statement of the case in July 2016. He then filed a timely VA Form 9 in September 2016. Later in May 2017, the Veteran submitted a claim that listed left-side weakness related to a cerebrovascular accident (CVA), high blood pressure, bilateral leg pain, insomnia, nightmares, and burns with scars in abdomen. Despite the fact that the Veteran had already perfected his appeal regarding his service connection claims for a psychiatric disorder and bilateral leg disorder, the RO issued an August 2017 rating decision stating that no new and material evidence had been submitted to reopen the previously denied service connection claims for alcohol use disorder in sustained remission and schizophrenia, a left leg disorder, or a right leg disorder. However, as the November 2015 rating decision never became final, no new and material evidence is needed to adjudicate these claims de novo. The record shows that the RO later corrected this mistake by issuing a September 2017 rating decision that omitted the issues already on appeal. The Board also notes that both the August 2017 rating decision and the September 2017 rating decision separately denied entitlement to service connection for insomnia. However, the Veteran's claimed insomnia is encompassed in his service connection claim for a psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the issue on the title page has been characterized to include this disorder. In addition, the record shows that after the July 2016 statement of the case, the RO obtained an additional VA examination concerning the Veteran's service connection claim for a psychiatric disorder in July 2017. Although the report was not reviewed in any subsequent supplemental statement of the case, the RO will have the opportunity to review this report upon remand. 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 issues of entitlement to service connection for a psychiatric disorder, to include schizophrenia, insomnia, and alcohol use disorder; to include as due to exposure to herbicide agents; and entitlement to service connection for a bilateral leg disorder, to include as due to exposure to herbicide agents, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT During the appeal period, the Veteran's service-connected scar on abdomen, residuals of burn injury, has been manifested by a single scar that is nonlinear and superficial, affects the anterior trunk, and has an area that covers less than 144 square inches (929 square centimeters). It has not affected the posterior portion of the trunk or any extremities; and it had not been deep; unstable; or painful. CONCLUSION OF LAW The criteria for entitlement to an initial compensable evaluation for scar on abdomen, residuals of burn injury, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.118, Diagnostic Code 7805 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Board notes that an October 2015 VA examination report indicates that the Veteran receives Social Security Administration (SSA) benefits. The claims file does not indicate that any attempts have been made to obtain his SSA records. However, there has been no suggestion from Veteran or the other evidence of record that these records are related to his increased rating claim for scar on abdomen, residuals of burn injury. Thus, the Board concludes that the Veteran's SSA records need not be obtained. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (determining that there is no duty to obtain SSA records when there is no evidence that they are relevant). The Veteran has not raised any other 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 a duty to assist argument). II. Law and Analysis Entitlement to an Initial Compensable Evaluation for Scar on Abdomen, Residuals of Burn Injury Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evidence to be considered in an appeal from an initial disability rating was not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson, 12 Vet. App. at 126-27; Hart v. Mansfield, 21 Vet. App. 505 (2007). Such separate disability ratings are known as staged ratings. The Veteran's scar on abdomen, residuals of burn injury, is rated under 38 C.F.R. § 4.118, Diagnostic Code 7805. He has been assigned an initial noncompensable evaluation effective from July 2, 2014. Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 under an appropriate Diagnostic Code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2017). Diagnostic Code 7801 provides disability ratings for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear. A 10 percent rating is awarded when the area of the scar(s) covers at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). A 20 percent rating is warranted when the area of the scar(s) covers at least 12 square inches (77 square centimeters) but less than 72 square inches (456 square centimeters). A 30 percent rating is warranted when the area of the scar(s) covers at least 72 square inches (456 square centimeters) but less than 144 square inches (929 square centimeters). A 40 percent rating is assigned when the area of the scar(s) covers at least 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, Diagnostic 7801 (2017). Diagnostic Code 7802 provides a 10 percent rating for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear, the area of which covers 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, Diagnostic 7802 (2017). Note (1) states that a superficial scar is one not associated with underlying soft tissue damage. Note (2) provides that if multiple qualifying scars are present, or if a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect the extremity, assign separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. Combine the separate evaluations under § 4.25. Qualifying scars are scars that are nonlinear, superficial, and are not located on the head, face, or neck. Diagnostic Code 7804 provides disability ratings for scars that are unstable or painful. A 10 percent rating for is assigned for one or two such scars. A 20 percent rating is warranted for three to four scars, and a 30 percent disability rating is assigned for five or more scars. Note (1) states 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, an additional 10 percent should be added to the evaluation based on the total number of unstable or painful scars. Note (3) states that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. 38 C.F.R. § 4.118, Diagnostic 7804 (2017). In August 2014, a VA treatment record indicated that a review of the Veteran's skin was negative for any problems, including rashes, discoloration, lesions, or dryness. Similar findings were reported in January 2015 and May 2015. A subsequent October 2015 VA examination report related to skin disorders stated that the Veteran did not have a skin disorder. His only relevant problem was a scar from a burn he experienced while serving in Vietnam. Another VA examination was conducted in October 2015 to evaluate the Veteran's scar on abdomen, residuals of a burn injury. The examiner noted that the Veteran did not have any scars or disfigurement of the head, face, or neck. He did have an abdominal scar related to an in-service burn injury. The scar was located on the anterior trunk, and it was superficial and nonlinear. The examiner described the abdominal scar as macular and flesh-colored with a less than deep partial thickness. The examiner stated that the scar had faded considerably over the years. It ran horizontally over the umbilicus. Its approximate total area was 12 square centimeters. The scar was neither painful nor unstable. In addition, the Veteran's scar did not result in any limitation of function. There were no other pertinent physical findings complications, conditions, or signs and/or symptoms (such as nerve or muscle damage) associated with the scar. The examiner noted that the posterior trunk, as well as both the upper and lower bilateral extremities, were not affected. The Veteran also did not have any deep and nonlinear scars. A review of the remaining evidence of record, including the VA treatment records, does not indicate that Veteran's scar had subsequent manifestations that were inconsistent with the findings in the October 2015 VA examination report. After reviewing the evidence of record, the Board finds that the Veteran is not entitled to an initial compensable evaluation for his scar on abdomen, residuals of burn injury. The record reflects that he had a single scar that was nonlinear, superficial, and affected only the anterior portion of the trunk. However, as its total area of 12 square centimeters was less than 144 square inches (929 square centimeters), a compensable disability rating under Diagnostic Code 7802 is not warranted. In addition, due to the October 2015 VA examiner's determinations that the scar was not deep, painful, or unstable; a disability rating under Diagnostic Codes 7801 or 7804 is not indicated. The examination report also reflects that the scar did not have any other disabling effects to warrant consideration under another Diagnostic Code as directed by Diagnostic Code 7805. The Board additionally notes that Diagnostic Code 7800 is not applicable in this case as it relates to scars or other disfigurement of the head, face, or neck. In summary, the evidence demonstrates that the Veteran is not entitled to an initial compensable disability rating for his scar on abdomen, residuals of burn injury. Although the Veteran is entitled to the benefit of the doubt where evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an initial compensable evaluation for scar on abdomen, residuals of burn injury, is denied. REMAND Regarding the Veteran's service connection claim for a psychiatric disorder, a remand is necessary to obtain an adequate VA examination and medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was provided with a VA examination related to his claim in October 2015. The examiner determined that the Veteran met the DSM-V criteria for schizophrenia and alcohol use disorder in sustained remission, but the examiner gave a negative opinion for direct service connection. He noted that the Veteran's service treatment records were silent for evidence of a psychiatric disorder. He also noted that the Veteran had never been in psychiatric treatment, and his psychiatric symptoms developed during his history of alcohol abuse. Although the examiner stated in the report that the Veteran had not consumed alcohol since 2003, the report does indicate when his alcohol use disorder began. In addition, the examiner did not address the Veteran's report of frequent trouble sleeping prior to his separation. See November 1965 Report of Medical History. Since the examination, the Veteran has also reported that he experienced potentially relevant problems when he returned from Vietnam, including marital problems, hallucinations, hearing voices, problems sleeping. See November 2015 VA treatment record; January 2016 Statement in Support of Claim. Upon remand, the examiner should elicit a full history from the Veteran and address his reported history of psychiatric symptoms. In addition, the Veteran has asserted that his psychiatric symptoms are related to his exposure to herbicide agents during active service. See November 2015 VA treatment record. The Veteran's personnel records reflect that he had active service in the Republic of Vietnam from August to November 1965. As such, his exposure to herbicide agents is presumed. 38 C.F.R. § 3.307(a)(6)(iii). Consequently, the examiner should also address this theory of entitlement upon remand. Szemraj v. Principi, 357 F.3d 1370, 1375-76 (Fed. Cir. 2004). The Board notes that an additional VA examination regarding the Veteran's service connection claim for a psychiatric disorder was obtained in July 2017. However, the examiner did not provide a medical opinion based on her conclusion that the Veteran did not have a diagnosis for a psychiatric disorder under the DSM-V. Thus, this examination is also inadequate as a result of the examiner's failure to address the diagnoses documented in the October 2015 VA examination report. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (recognizing that the requirement of a "current disability" is fulfilled if a "claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim"). The Veteran also stated in his September 2016 VA Form 9 that he had been psychologically impacted by the traumatic experiences of war. However, no development has been conducted to determine whether the Veteran is claiming entitlement to service connection for posttraumatic stress disorder (PTSD) based on any specific in-service stressors. Upon remand, the Veteran should be provided with a notice letter that includes a VA Form 21-0781, Statement in Support of Claim for Service Connection for PTSD, to allow the Veteran to provide specific information for any claimed stressors. Regarding the diagnosed alcohol use disorder in sustained remission, the Board notes that direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA compensation benefits for claims filed after October 31, 1990. 38 U.S.C.A. §§ 105, 1131; 38 C.F.R. § 3.1(m)-(n), 3.301; VAOPGCPREC 7-99 (1999), 64 Fed. Reg. 52,375 (1999); VAOPGCPREC 2-98 (1998), 63 Fed. Reg. 31,263 (1998). However, service connection is warranted for an alcohol or drug abuse disability acquired as secondary to, or as symptom of, a Veteran's service-connected disability. See Allen v. Principi, 237 F.3d. 1368, 1375 (Fed. Cir. 2001). A veteran can only recover if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." Id. at 1381. As the Veteran could potentially be granted service connection for a psychiatric disorder other than alcohol use disorder, and the timeline regarding when the Veteran first began to experience symptoms of alcohol abuse in relation to his other psychiatric symptoms is unclear, the Board finds that the opinion obtained on remand should address whether the alcohol use disorder is secondary to any other psychiatric disorder. The Board also notes that the Veteran has not yet been afforded a VA examination related to his service connection claim for a bilateral leg disorder. The Veteran has reported persistent or recurrent symptoms of a disability, including leg pain and difficulty walking. See January 2016 Statement in Support of Claim; January 2016 Notice of Disagreement. In a March 2016 statement that discussed the claims on appeal, the Veteran also stated that he has been suffering since the beginning of his active service. The Veteran's statements additionally indicate that he is asserting his bilateral leg disorder is related to his in-service exposure to herbicide agents. As the Board lacks sufficient evidence to render a decision on this issue, a VA examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). As previously discussed, the record indicates that the Veteran receives SSA benefits. However, no related records have been associated with the claims file. As the Veteran's service connection claims are already being remanded for additional development, the AOJ should attempt to obtain the Veteran's SSA records. See 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 a copy of any decision to grant or deny SSA disability benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Send the Veteran a VCAA notice letter related to his service connection claim for a psychiatric disorder. The letter should (1) inform him of the evidence that is necessary to substantiate the claim, to include a claim for PTSD; (2) inform him about the information and evidence that VA will see to provide; and (3) inform him about the information and evidence he is expected to provide. The notice letter should include a VA Form 21-0781, Statement in Support of Claim for Service Connection for PTSD. The Veteran should also be asked to provide sufficient information to verify any claimed in-service stressor that he has reported (such as a description of the incident, the date, location, and names of any individuals injured or killed). 3. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his psychiatric disorder and bilateral leg disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding, relevant VA medical records, to include records from the VA Caribbean Healthcare System dated since April 2016. 4. After completing the preceding development in paragraphs 1, 2, and 3, provide the Veteran with a VA examination in connection with his service connection claim for a psychiatric disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. The examiner must elicit a full history of the Veteran's psychiatric symptoms, including the history of his alcohol use. An explanation for all opinions expressed must be provided. The Veteran is competent to attest to observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should also note that the Veteran is presumed to have been exposed to herbicide agents, including Agent Orange, during service. The examiner should clearly identify all current psychiatric disorders. If schizophrenia and alcohol use disorder in sustained remission are not diagnosed, the examiner should address the previous diagnoses of record. The examiner should then answer the following questions: (a) For each diagnosis identified other than PTSD and a substance abuse disorder, the examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the disorder manifested during, or is otherwise causally or etiologically related to, the Veteran's active service, including exposure to herbicide agents therein (notwithstanding the fact that it may not be a presumed exposure). (b) Regarding PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events, as well as any stressors related to fear of hostile military or terrorist activity, may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support a diagnosis of PTSD have been satisfied. If a PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor. (c) If a substance abuse disorder, to include alcohol use disorder, is identified, the examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) the disorder was caused or aggravated by any other psychiatric disorder that has been identified. The examiner should address the following: (1) the November 1965 Report of Medical History in which the Veteran reported frequent trouble sleeping; (2) the November 2015 VA treatment record in which the Veteran indicated that when he returned from Vietnam, he experienced hallucinations, heard voices, and had trouble sleeping; and (3) the Veteran's January 2016 statement that he experienced marital problems since his military discharge. 5. After the preceding development in paragraphs 1, 2, and 3 is completed, schedule the Veteran for a VA examination to determine the nature and etiology of any bilateral leg disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner must elicit a full history of the Veteran's bilateral leg symptoms. A clear explanation for all opinions based on specific facts of the case as well as relevant medical principles is needed. The Veteran is competent to attest to observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should also note that the Veteran is presumed to have been exposed to herbicide agents, including Agent Orange, during service. First, the examiner should clearly state whether the Veteran has a current diagnosis of a left and/or right leg disorder. Second, if it is determined that the Veteran has a current diagnosis, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested during, or was caused by active service, to include the Veteran's exposure to herbicide agents therein (notwithstanding the fact that it may not be a presumed association). 6. Review each examination report to ensure that it is in compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, to include obtaining additional VA examinations and/or medical opinions, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. 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. §§ 5109B, 7112 (2012). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs