Citation Nr: 1805736 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 10-39 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial disability rating for multiple lipomas of the right upper extremity, left upper extremity, anterior trunk, and posterior trunk, rated as noncompensable prior to April 18, 2017, and as 20 percent disabling thereafter. 2. Entitlement to service connection for right knee osteoarthritis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Costello, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1992 to August 1998. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). A June 2017 rating decision granted a 20 percent disability rating from April 18, 2017 for his multiple lipomas. The Veteran testified before the undersigned Veterans Law Judge during a September 2017 videoconference hearing. A copy of the transcript has been associated with the claims file. FINDINGS OF FACT 1. Prior to October 23, 2008, the Veteran's multiple lipomas of the right upper extremity, left upper extremity, anterior trunk, and posterior trunk were manifested by pain. 2. From October 23, 2008, the Veteran had four painful lipomas 3. At no point during the period on appeal did the Veteran's multiple lipomas of the right upper extremity, left upper extremity, anterior trunk, and posterior trunk manifest symptoms of being deep and nonlinear, or covering an area of at least 144 square inches (929 square centimeters), or any functional impairment. 4. Right knee osteoarthritis is not attributable to or related to service. CONCLUSIONS OF LAW 1. Prior to October 23, 2008, the criteria for a 10 percent rating for multiple lipomas of the right upper extremity, left upper extremity, anterior trunk, and posterior trunk have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.20, 4.59, 4.71a, Part 4, Diagnostic Codes 7819, 7804 (2017). 2. From October 23, 2008, to April 17, 2017, the criteria for a 20 percent rating and no higher, for multiple lipomas of the right upper extremity, left upper extremity, anterior trunk, and posterior trunk have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.20, 4.59, 4.71a, Part 4, Diagnostic Codes 7918, 7804 (2017) 3. From April 18, 2017, the criteria for an initial rating in excess of 20 percent for multiple lipomas of the right upper extremity, left upper extremity, anterior trunk, and posterior trunk have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.20, 4.59, 4.71a, Part 4, Diagnostic Codes 7819, 7804 (2017). 4. Right knee osteoarthritis was not incurred or aggravated in active service. 38 U.S.C. §§ 1101, 1110 (2012); 38 C.F.R. §§ 3.303, 3.304. 3.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Multiple Lipomas Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Before proceeding with its analysis of the Veteran's claim, the Board finds that some discussion of Fenderson v. West, 12 Vet. App 119 (1999) is warranted. In that case, the United States Court of Appeals for Veterans Claims (Court) emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which a Veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." See also Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, there has not been a material change in the disability level and a uniform rating is warranted. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). In September 2017, the Veteran testified that his service-connected multiple lipomas of the right upper extremity, left upper extremity, anterior trunk, and posterior trunk have been painful at least since his first VA examination in April 2009. Also, he stated that some lipomas have grown since April 2009, but that they have always been painful. Service connection was established for multiple lipomas of the right upper extremity, left upper extremity, anterior trunk, and posterior trunk, and has been in effect since November 2007, the date of the Veteran's claim. Prior to April 18, 2017, the Veteran's service-connected disability of multiple lipomas of the right upper extremity, left upper extremity, anterior trunk, and posterior trunk have been rated as noncompensable under Diagnostic Code 7804 (painful or unstable scars), and 20 percent thereafter. 38 C.F.R. § 4.118. In the June 2017 rating decision, the RO rated the claim under Diagnostic Code 7804, as analogous to a scar. Currently, under Diagnostic Code 7804, a 10 percent rating is assigned for one or two scars that are unstable or painful. A 20 percent rating is assigned for three or four scars that are unstable or painful. A 30 percent rating is assigned for five or more scars that are unstable or painful. However, during the pendency of this appeal, VA amended the rating criteria for the evaluation of scars, which became effective on October 23, 2008. See 73 Fed. Reg. 54708 (Sept. 23. 2008). Additionally, regulatory changes were made in 2012, but these changes involve only a correction to the applicability date of the 2008 regulations, and do not involve any substantive changes. See 77 Fed. Reg. 2909 (Jan. 12, 2012) (correcting the applicability-date language for the revised rating criteria for scars). The 2008 revisions are applicable to claims filed on or after October 23, 2008. A Veteran rated under the previous criteria may request review under the revised criteria. In this case, the Veteran submitted his claim for service connection in March 2008 and has not specifically requested such consideration. However, the RO considered the old criteria and the new criteria in adjudicating this claim, and granted an increased rating under the revised criteria. Therefore, the Board will consider the claim under the old and new criteria in order to ascertain which version would afford him the highest rating with the caveat that the revised criteria may not be applied prior to the effective date of the regulation, or October 23, 2008. When an unlisted disorder is encountered, it is be permissible to rate under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2017). In this case, the Veteran's lipomas could be rated by analogy under Diagnostic Code 7819 for benign skin neoplasms. Under both the old and new regulations, such disability is to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800, scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or impairment of function. Under the applicable rating provisions for scars in effect before October 2008 (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), in order to obtain a compensable disability rating for residual scarring, the evidence must show the following: scars, other than the head, face, or neck, that are deep or cause limited motion in an area or areas exceeding 6 square inches or 39 square centimeters (10 percent disabling under Diagnostic Code 7801); scars, other than the head, face, or neck, that are superficial and that do not cause limited motion in an area or areas of 144 square inches or greater (10 percent under Diagnostic Code 7802); superficial and unstable scars (10 percent under Diagnostic Code 7803); or superficial scars that are painful upon examination (10 percent under Diagnostic Code 7804); and, scars under Diagnostic Code 7805 were to be rated for limitation of function of the affected part. 38 C.F.R. § 4.118 (2008). Under the revised criteria effective October 23, 2008, Diagnostic Code 7801 provides ratings of 10 percent, 20 percent, 30 percent, and 40 percent for burn or other scars (not on the head, face, or neck) that are deep and nonlinear, depending on the size of the area involved. Diagnostic Code 7802 provides a maximum 10 percent rating for a burn or other scars that are superficial and nonlinear involving an area of 144 square inches (929 sq. cm) or greater. Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage. The revised criteria eliminated Diagnostic Code 7803. As noted, Diagnostic Code 7804 provides a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a 30 percent rating for five or more scars that are painful or unstable. Note (1) provides that an unstable scar is where, for any reason, there is frequent loss of covering of skin over the scar. Under Code 7805, scars are evaluated for any disabling effects not considered in a rating under Codes 7800 to 7804 under an appropriate other Code. In April 2009, the Veteran had a VA examination and was diagnosed with multiple lipomas involving the bilateral upper and lower extremities, as well as his trunk. He reported onset in 1994 on his arms and that the lipomas spread to his thighs, chest, abdomen, and low back. He reported occasional pain with his benign neoplasms, but no impairments of his joint motion or extremities. The examiner reviewed the Veteran's claims file. On examination, the examiner found multiple subcutaneous nodules that were soft, mobile, and non-painful. Size varied with the largest being 4x2 square centimeters and the smallest measured 1x1 square centimeters. In his August 2009 notice of disagreement, the Veteran stated that he had several lipomas that were painful or caused discomfort. In April 2017, the Veteran underwent a VA disability benefits questionnaire (DBQ) for skin diseases. The examiner reviewed the Veteran's claims file. The Veteran was diagnosed with multiple lipomas to the upper thighs, abdomen, back, and arms. The lipomas of the arms were large and painful. No scarring or disfigurement was found on the head, face, or neck. He did not have any systematic manifestations or skin neoplasms. He had not been treated for his skin condition in the past twelve months. The approximated total exposed body area was not listed. In June 2017, the Veteran underwent a VA DBQ for scars and disfigurements. The examiner reviewed the Veteran's claims file. The Veteran was diagnosed with lipomas. On examination, the Veteran had four lipomas that were painful with pressure. They were superficial and non-linear. Further, they were not unstable or due to burns. The following are the locations and approximate total area covered by lipomas: right upper extremity, 9 square centimeters; left upper extremity, 19.25 square centimeters; right lower extremity, 1.5 square centimeters, left lower extremity, 4 square centimeters; anterior trunk, 5 square centimeters; posterior trunk, 2.5 square centimeters. The Veteran's lipomas were not found to impact his ability to work. The examiner stated that superficial subcutaneous lipomas are the most common benign soft-tissue neoplasms and consist of mature fat cells enclosed by a thin fibrous capsule. Based on all the evidence, both medical and lay, and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a 20 percent rating, but no higher, for four painful scars is more nearly approximated for the rating period on appeal based in the rating criteria that was effective on October 23, 2008. While the April 2009 VA examiner reported that the Veteran's lipoma was not painful, the Veteran reported occasional pain of his lipomas during the examination. The June 2017 VA DBQ noted that the Veteran had four painful lipomas when pressure was applied, consistent with the Veteran's August 2009 statement and September 2017 testimony. The Veteran is competent to report symptoms of pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, a rating in excess of 20 percent is not warranted from October 23, 2008, as the evidence of record does not suggest, and the Veteran has not asserted, that there are more than four service-connected lipomas that are painful or unstable. With respect to the rating criteria effective prior to October 23, 2008, such criteria would have allowed a 10 percent rating for scars that were superficial and painful on examination. The Board finds that with resolution of reasonable doubt in the Veteran's favor a 10 percent rating is in order prior to the effective date of the revised criteria. As mentioned above, the Board has considered the claim under the old and new criteria in order to ascertain which version would afford the Veteran the highest rating, and finds that revised criteria are more favorable to the Veteran from the effective date of the change in regulation, or October 23, 2008. Turning to the other scar codes, the Board recognizes that each VA examination determined that no scars were present. However, the Board recognizes that the Veteran's disability is being rated by analogy to the scar codes and, therefore, some flexibility is to be given the rating criteria. The Board finds that the weight of the evidence is against a finding that any other Diagnostic Codes for rating scars are applicable because the Veteran's multiple lipomas are superficial and measure less than 144 square inches. Thus, these Diagnostic Codes are not applicable. See 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802. Finally, the Board has also considered whether the Veteran's multiple lipomas should be assigned a separate rating for any resulting limitation of function, which would be rated on limitation of function of the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805. Here, notwithstanding the Veteran's complaint of painful lipomas, he has not alleged, nor does the evidence indicate, that the lipomas actually caused a limitation of function of any affected part. Thus, the evidence does not establish functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the Veteran undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Nor has it been established here that the Veteran experienced painful motion of any particular joint so as to warranted a compensable rating under 38 C.F.R. § 4.59. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the evidence supports a 10 percent rating prior to October 23, 2008, and a 20 percent rating, but no higher for the period from October 23, 2008. Right Knee Osteoarthritis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. A February 2009 VA formal finding noted that the Veteran's service treatment records were unavailable for review. The Veteran submitted his August 1998 exit examination that indicated he had normal lower extremities and excellent health, as well as his August 1998 medical history, which indicated that he did not have a trick or locked knee. A November 2008 buddy statement indicated that the Veteran sustained an injury to his right knee while stationed in Berlin, Germany. The Veteran sought treatment from a German doctor and was diagnosed with a hyperextended right knee and ligament strain. His swelling and stiffness subsided in Germany. In October 2005, Veteran complained of occasional joint pain in his back, left shoulder and knee, especially when lifting weights. He denied any specific injury. A January 2008 physician's note indicated that Veteran complained of popping in his knees when he was lifting. The physician found that the Veteran had very little crepitus and joint pain of left knee. In March 2008, the Veteran reported popping in his knee when lifting, yet the physician found no joint pain or sprains. In March 2008, the Veteran stated that he suffered a moderate right knee hyperextension while on active duty. In April 2017, the Veteran underwent a VA DBQ for knee and lower leg conditions. The examiner reviewed the Veteran's claims file. The Veteran was diagnosed with a right knee strain with onset in 2005. The Veteran reported that he injured his right knee playing volleyball in 1995 with no range of motion for two days after the injury. He noticed pressure behind the right kneecap with intermittent pain, mild swelling, and crepitus. No flare-ups were noted. The Veteran reported functional impairments when bending, squatting, kneeling, and when he used stairs. The Veteran's range of motion was found to contribute to his reported impairment. On examination, pain was noted during testing extension and flexion of the right knee, and found to cause functional loss. Muscle strength was normal for flexion and extension, yet there was lateral right knee instability. The examiner opined that the right knee strain was less likely than not (less than a 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness as the Veteran's first post-service complaint of a problem with his right knee occurred in 2005, eight years after his discharge from active duty. There had been no other complaints or treatment for a right knee issue since 2005. Thus, the examiner stated that he was unable to support a causal connection between the in-service event and the Veteran's right knee. During his September 2017 videoconference hearing, the Veteran testified that he hyperextended his knee while playing volleyball in Berlin Germany in late 1995 and sought treatment from a German doctor days later. Upon discharge, the Veteran was not experiencing problems with his right knee, but sought treatment in 2007 when he began having flare-ups. He reported that he was diagnosed with osteoarthritis and felt pressure behind his knee, but did not tell his private doctor of his in-service injury. In this case, the VA examiner was aware of the Veteran's medical history, provided a fully articulated opinion, and also furnished a reasoned analysis. The Board therefore attaches significant probative value to this opinion, and the most probative value in this case, as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The Board has considered the Veteran's own opinion that his current right knee osteoarthritis is related to his right knee hyperextension he had in late 1995. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature" Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Veteran is competent in this case to report his symptoms, but nothing in the record demonstrated that he has received any special training or acquired any medical expertise in evaluating and determining causal connections for the claimed condition. Therefore, a medical expert opinion would be more probative regarding the causation question in this case and has been obtained as set forth above. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Thus, the Veteran's opinion is outweighed by the findings to the contrary by the VA examiner, a medical professional who considered the pertinent evidence of record and found against such a relationship. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). The most probative evidence establishes that a right knee disability to include osteoarthritis is not related to service. Accordingly, service connection is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claim, and it must be denied. ORDER Entitlement to a 10 percent rating prior to October 23, 2008 and a 20 percent rating, but no higher from October 23, 2008, for multiple lipomas of the right upper extremity, left upper extremity, anterior trunk, and posterior trunk is granted, subject to the law and regulations governing the payment of monetary benefits. Service connection for right knee osteoarthritis is denied. S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs