Citation Nr: 18143566 Decision Date: 10/23/18 Archive Date: 10/19/18 DOCKET NO. 14-43 800 DATE: October 23, 2018 ORDER From December 15, 2010, through November 6, 2017, entitlement to an increased rating from 10 percent to 20 percent, but no higher, for surgical scarring of the breasts due to fibrocystic disease is granted. On and after November 7, 2017, entitlement to a rating in excess of 20 percent for surgical scarring of the breasts due to fibrocystic disease is denied. New and material evidence has not been received to reopen the claim of entitlement to service connection for status post removal of a ganglion cyst from the right wrist, and the request to reopen is denied. New and material evidence has been received to reopen the claim of entitlement to service connection for left thumb tendonitis, and the request to reopen is granted. New and material evidence has been received to reopen the claim of entitlement to service connection for left wrist tendonitis, and the request to reopen is granted. New and material evidence has been received to reopen the claim of entitlement to service connection for a right ankle disability, and the request to reopen is granted. Entitlement to service connection for a ganglion cyst of the left wrist is denied. Entitlement to service connection for residuals of a severe head injury is denied. REMANDED Entitlement to service connection for left thumb tendonitis is remanded. Entitlement to service connection for left wrist tendonitis is remanded. Entitlement to service connection for a right ankle disability is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, throughout the entirety of the appeal, the Veteran’s surgical scarring of the breasts due to fibrocystic disease has been manifested by three to four painful scars. 2. The appellant has not submitted evidence that was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for status post removal of a ganglion cyst from the right wrist. 3. The appellant has submitted evidence that was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for left thumb tendonitis. 4. The appellant has submitted evidence that was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for left wrist tendonitis. 5. The appellant has submitted evidence that was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a right ankle disability. 6. The preponderance of the evidence is against finding that ganglion cyst of the left wrist began during active service, or is otherwise related to an in-service injury, event, or disease. 7. The preponderance of the evidence is against finding that the Veteran suffered a head injury in service. CONCLUSIONS OF LAW 1. From December 15, 2010, through November 6, 2017, the criteria for entitlement to an increased rating from 10 percent to 20 percent, but no higher, for surgical scarring of the breasts due to fibrocystic disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.118, Diagnostic Codes 7801, 7802, 7804, 7805. 2. On and after November 7, 2017, the criteria for entitlement to a rating in excess of 20 percent for surgical scarring of the breasts due to fibrocystic disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.118, Diagnostic Codes 7801, 7802, 7804, 7805. 3. New and material evidence has not been received to reopen the claim of entitlement to service connection for status post removal of a ganglion cyst from the right wrist. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 4. New and material evidence has been received to reopen the claim of entitlement to service connection for left thumb tendonitis. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 5. New and material evidence has been received to reopen the claim of entitlement to service connection for left wrist tendonitis. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 6. New and material evidence has been received to reopen the claim of entitlement to service connection for a right ankle disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 7. The criteria for entitlement to service connection for a left wrist ganglion cyst are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 8. The criteria for entitlement to service connection for residuals of a severe head injury are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1982 to April 1989. This matter comes before the Board on appeal from October 2011 and June 2012 Regional Office (RO) rating decisions. In May 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. Increased Rating Disability ratings are determined by comparing a veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7. “Staged ratings,” or different percentage evaluations for separate periods based on the facts found, may also be awarded. Fenderson v. West, 12 Vet. App. 119, 126-7 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). From December 15, 2010, through November 6, 2017, entitlement to an increased rating from 10 percent to 20 percent, but no higher, for surgical scarring of the breasts due to fibrocystic disease is granted. On and after November 7, 2017, entitlement to a rating in excess of 20 percent for surgical scarring of the breasts due to fibrocystic disease is denied. The Veteran is currently in receipt of a 10 percent rating for scarring of the breasts due to fibrocystic disease from December 15, 2010, through November 6, 2017, and a 20 percent rating on and after November 7, 2017. These ratings have been assigned pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7804. Diagnostic Code 7804 assigns a 10 percent evaluation for one or two scars that are unstable or painful. A 20 percent disability evaluation is assigned when there are three or four scars that are unstable or painful. A 30 percent rating is assigned when five or more scars are unstable or painful. Under Note 1 to this diagnostic code, an unstable scar is one where there is frequent loss of skin covering over the scar. Under Note 2, if one or more scars is both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. Under Note 3, scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive ratings under Diagnostic Code 7804 when applicable. A March 2011 VA gynecological conditions and disorders of the breast examination report reflects that two tender scars were found on examination. These scars were not unstable. An April 2012 VA scars examination report notes a finding of four scars that were painful but not unstable. A November 2017 VA scars examination report notes a finding of three painful scars. This examination report also contains contradictory findings concerning whether these scars were also painful. A January 2018 addendum clarifies that the scars were not, in fact, painful. The November 2017 examination report also notes that tension on scars limited certain movements. As noted above, the presence of three or four painful or unstable scars warrants a 20 percent rating. Because the April 2012 VA examination report notes the presence of four painful scars, the Board finds that entitlement to a rating of 20 percent, but no higher, is warranted at least from the date of that examination. The Board further notes, however, that the painful scars at issue were a result of surgical scarring that occurred prior to the appeals period. Even though the March 2011 VA examination report reflects the presence of only two painful surgical scars, given that the scarring at issue occurred prior to the appeals period, the Board will resolve reasonable doubt in the Veteran’s favor and find that she has, in fact, had three or four surgical scars throughout the appeals period. The Board finds that, in the absence of five or more unstable or painful scars, a rating in excess of 20 percent is not warranted. Because the Veteran’s scars are not on her head, face, or neck, the criteria for a rating under Diagnostic Code 7800 are not satisfied. Because they are not deep and nonlinear and do not cover an area of at least 6 square inches, a separate rating is not warranted under Diagnostic Code 7801. Because they are not superficial and nonlinear and do not cover an area of 144 square inches, a separate rating is not warranted under Diagnostic Code 7802. While the November 2017 VA examination report notes that tension limits certain movements, there is no indication that the Veteran’s movements are limited to an extent that a compensable rating for limitations in twisting or bending of the torso would be warranted. In general, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. An exception to that rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In such an instance, the law provides that the effective date of the award “shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” 38 U.S.C. § 5110(b)(2); see also 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). In the case at hand, VA received the Veteran’s increased rating claim on December 27, 2010, but the RO assigned the 10 percent rating effective December 15, 2010. The RO chose that date because it is the date on which the Veteran sought treatment for breast pain from her private doctor. (See October 2014 statement of the case.) The December 15, 2010, private medical record notes findings that the Veteran’s breasts were “tender bilaterally diffusely but worse left than right- left medial and right upper outer quadrant scars.” Based on this record, the RO determined that it was factually ascertainable as of that date that the Veteran’s disability had increased in severity such that it satisfied the criteria for a 10 percent rating. The evidence from earlier in the one-year period prior to the December 27, 2010, date of claim does not reflect that the Veteran incurred three or four painful scars during that period. Therefore, it is not factually ascertainable that the Veteran’s disability increased in severity between December 27, 2009, and December 14, 2010, and entitlement to a 20 percent rating prior to December 15, 2010, is not warranted. Service Connection Rating actions from which an appeal is not perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A final decision cannot be reopened unless new and material evidence is presented or secured with respect to that claim. See 38 U.S.C. § 5108; see also Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The question of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the evidence is presumed credible unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 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, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). New and material evidence has not been received to reopen the claim of entitlement to service connection for status post removal of a ganglion cyst from the right wrist, and the request to reopen is denied. The claim of entitlement to service connection for status post removal of a ganglion cyst from the right wrist was previously denied in a December 2008 rating decision based on the finding that, while the Veteran did have ganglion cysts excised from the right wrist on two separate occasions during service, the Veteran did not have a ganglion cyst on her right wrist at any point during the appeals period. She was notified of this decision in December 2008, but she did not appeal. The Veteran has not submitted new and material evidence to reopen her claim. The medical evidence that the Veteran has submitted since her December 2008 denial reflects that she has not been treated for a ganglion cyst of the right wrist, and that she has not experienced any residuals of her in-service right wrist ganglion cyst removals. While a June 2018 VA wrist conditions examination report has been added to the record indicating that she now has right wrist tendonitis, there is no evidence of the in-service ganglion cyst removal. The Board therefore finds and new and material evidence has not been received, and therefore the claim of entitlement to service connection for status post removal of a ganglion cyst from the right wrist is not reopened. New and material evidence has been received to reopen the claim of entitlement to service connection for left thumb tendonitis, and the request to reopen is granted. The claim of entitlement to service connection for left thumb tendonitis was originally denied in the December 2008 rating decision. The decision noted that there was evidence that the Veteran had been treated for this disability during service. Specifically, June 1989 service treatment records reflect that the Veteran was evaluated and fit with a left thumb brace. The Veteran’s June 1989 separation medical history report notes that the Veteran had “[t]endonitis to left wrist and thumb, first noticed May 89, treated with medication and wrist brace, with some results.” However, the rating decision determined that there was no evidence of permanent residual or chronic disability. The Veteran was notified of this decision in December 2008, but she did not appeal. Since the December 2008 rating decision, new and material evidence has been submitted in the form of a November 2017 VA hand and finger conditions examination report that reflects the Veteran has been diagnosed with De Quervain’s tendinosis, which was noted to have its onset in 1989 when the Veteran “began having pain in bilateral thumbs. Pain increased in left thumb and was treated with a splint due to diagnosis of left thumb tendonitis.” With respect to current symptoms, the examiner noted that the Veteran has “[b]ilateral pain along De Quervain’s tendon in thumb” and describes functional impairment. This evidence is new in that it was not of record at the time of the December 2008 rating decision. It is material in that indicates the presence of a current left thumb disability. Therefore, new and material evidence having been received, the claim of entitlement to service connection for left thumb tendonitis is reopened. New and material evidence has been received to reopen the claim of entitlement to service connection for left wrist tendonitis, and the request to reopen is granted. The claim of entitlement to service connection for left wrist tendonitis was originally denied in the December 2008 rating decision. This decision noted that there was evidence of left wrist tendonitis during service. Specifically, May 1989 service treatment records reflect that the Veteran was treated for tendonitis of the left wrist and was put on profile for tendonitis of the left arm. In addition, the Veteran’s June 1989 separation medical history report notes that she had “[t]endonitis to left wrist and thumb, first noticed May 89, treated with medication and wrist brace, with some results.” However, the December 2008 rating decision determined that there was no evidence of permanent residual or chronic disability. The Veteran was notified of this decision in December 2008, but she did not appeal. Since the December 2008 rating decision, new and material evidence has been submitted in the form of a November 2017 VA wrist conditions examination report that diagnoses De Quervain’s syndrome. It notes that the condition had its onset in 1989, when the Veteran began “having left wrist pain and dx with wrist tendonitis and fitted with splint.” With respect to current symptoms, it was noted that the Veteran has “[b]ilateral wrist pain over thumb tendon. Wears brace daily.” In a June 2018 VA wrist conditions examination report, the Veteran was diagnosed with tendonitis of the wrist. This evidence is new in that it was not of record at the time of the December 2008 rating decision. It is material in that indicates the presence of a current left wrist disability. Therefore, new and material evidence having been received, the claim of entitlement to service connection for left wrist tendonitis is reopened. New and material evidence has been received to reopen the claim of entitlement to service connection for a right ankle disability, and the request to reopen is granted. The claim of entitlement to service connection for a right ankle disability was originally denied in a December 2008 rating decision. This decision noted that the Veteran’s service treatment records reflect that she suffered a right ankle sprain in November 1983 while playing basketball. This condition was treated and she had no further problems throughout the remainder of her military service. The rating decision noted that the earliest post-service evidence of right ankle problems was in September 2006. She underwent a VA examination, and no diagnosis was made. Specifically, x-ray of the right ankle showed no abnormalities. The RO determined what, while there was evidence of a right ankle sprain in service, no permanent residual or chronic disability subject to service connection is shown by the service treatment records or demonstrated by post-service evidence. The Veteran was notified of this decision in December 2008, but she did not appeal. The Board finds that new and material evidence has been submitted in the form of a November 2017 VA ankle conditions examination report. This report diagnosed degenerative arthritis of the right ankle based in part on diagnostic testing. This evidence is new in that it was not of record at the time of the December 2008 rating decision. It is material in that it indicates the presence of a current right ankle disability. Therefore, new and material evidence having been received, the claim of entitlement to service connection for a right ankle disability is reopened. Entitlement to service connection for a ganglion cyst of the left wrist is denied. The record reflects that the Veteran has been diagnosed with a ganglion cyst of the left wrist during the applicable appeals period. (See June 2018 VA wrist conditions examination report.) The evidence does not, however, reflect that the Veteran had a ganglion cyst of the left wrist during service. (See service treatment records.) The Veteran did have left wrist tendonitis during service. (See May 1989 service treatment record.) However, there is no indication of an etiological relationship between the Veteran’s in-service left wrist condition and a current left wrist ganglion cyst. Therefore, entitlement to service connection for a left wrist ganglion cyst must be denied. Entitlement to service connection for residuals of a severe head injury is denied. The Veteran has claimed entitlement to service connection for a severe head injury. Specifically, she contends that she fell from a pole in August 1982 and cut her head on the way down. (See Board hearing transcript, pages 5-6.) She testified that she began having severe headaches approximately two weeks after her fall. (See Board hearing transcript, page 6.) She also testified that she did not seek medical treatment for her headaches in service, but rather that she self-medicated. (See Board hearing transcript, page 6.) Service treatment records reflect that, in August 1982, the Veteran fell approximately 20 feet off of a pole. She landed on her feet and fractured the fourth metatarsal on her right foot. Her neurologic and vascular systems were normal, and she was treated for a slight laceration of the left eyelid. Her service treatment records reflect that, throughout the rest of her service, the Veteran never sought treatment for headaches. She also specifically denied having headaches in an April 1985 record, and denied having, or having a history of, headaches, on a questionnaire dated in April 1986. She denied a history of, or current, frequent or severe headaches on her June 1989 separation medical history report. She also expressly denied having had a head injury on her June 1989 separation medical history report. She was found to be clinically normal in all pertinent systems at her June 1989 separation examination. Post-service medical evidence reflects that the Veteran has received treatment for “brain flops” and migraine headaches. An undated problem list from a private headache clinic where the Veteran receives treatment notes that she had a history of head injury with loss of consciousness in the military in 1982. A January 2011 record reflects that the Veteran reported that she fell 20 feet in service and hit her head, and that she was “out” approximately 16 hours. An October 2011 VA headaches examination report notes that the Veteran “fell from a pole 8/13/1[9]82 and hit head, since then has headaches with continuous pain R hemicranium, and burning pain above L eye and down to area of the L jaw. These are constant.” It was further noted that the Veteran reported that “when she leans forward [she] feel[s] as though her brain is ‘FLOPPING’ forward in her skull, goes back to normal when straightens up.” The Board notes that the Veteran is competent to report that she suffered a head injury in service. The Board finds, however, that her current assertions that she hit her head and loss consciousness when she fell from the pole in August 1982 are less reliable than the contemporaneous medical records that were produced in connection with this fall. The service treatment records reflect that the Veteran landed on her feet, rather than her head, and they do not suggest that she lost consciousness. While the service treatment records do reflect that she suffered a left eyelid laceration in her fall, they do not note that she hit her head and loss consciousness. The Board finds that treatment of a cut to her eyelid does not necessarily show that she suffered a head injury and that, had she hit her head and loss consciousness, this fact would have been expressly documented given the seriousness of this type of injury. See Kahana v. Shinseki, 24 Vet. App. 428, 439-40 (2011) (Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, as opposed to cases in which there is evidence that is relevant either because it speaks directly to the issue or allows a reasonable inference to be drawn by the Board as fact finder). The Board further finds it significant that the Veteran herself expressly denied having suffered a head injury in service when she filled out her separation medical history report in June 1989. In addition, even though the Veteran has described having experienced severe headaches within weeks of the August 1982 fall, her service treatment records reflect that at no point during her military service did she actually report that she has suffered from headaches. Even though the Veteran testified that she did not seek medical treatment for these headaches while in service, the fact that she expressly denied having headaches is inconsistent with her subsequent reports that she did, in fact, have headaches. The Board thus finds the Veteran’s recollections of having experienced frequent and severe headaches during service cannot be deemed reliable. In short, the Board finds that a preponderance of the evidence of record is against finding that the Veteran suffered a head injury in service. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. REASONS FOR REMAND Entitlement to service connection for left thumb tendonitis is remanded. Entitlement to service connection for left wrist tendonitis is remanded. As noted above, the Veteran has now been diagnosed with De Quervain’s syndrome, which appears to affect her left thumb and wrist. As noted above, in a June 2018 VA wrist conditions examination report, the Veteran was diagnosed with tendonitis of the wrist. It was noted that tendonitis of the left wrist was diagnosed in May 1989. The examiner only provided an etiology opinion for tendonitis of the right wrist. The Board finds that an opinion is necessary for whether a left wrist disability, to include tendonitis or De Quervain’s syndrome, is at least as likely as not related to service. As noted above, the Veteran’s De Quervain’s syndrome has been noted to affect her left thumb in addition to her left wrist. The Board will therefore remand both of these claims in order to obtain an etiology opinion. Entitlement to service connection for a right ankle disability is remanded. As noted above, a November 2017 VA examination report diagnosed the Veteran with arthritis of the right ankle. It did not, however, provide an etiology opinion with respect to whether that arthritis is related to service. Therefore, a remand is necessary so that an etiology opinion may be obtained. The matters are REMANDED for the following action: 1. Obtain all relevant VA and private treatment records not currently associated with the claims file, to include any VA medical records that were created since the Veteran’s records were last obtained in May 2018. 2. Send the claims file to a qualified individual to obtain an opinion that addresses the following: Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s (a) left thumb, (b) left wrist, and (c) right ankle disabilities had their onset in service or are otherwise related to service? (This opinion should include an opinion with respect to whether the Veteran’s De Quervain’s syndrome is related to service.) If a new examination is deemed necessary, then one should be scheduled. If an examination is scheduled, all pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The claims file should be made available to the examiner. Please provide a complete medical rationale that includes a discussion of the facts of the Veteran’s case and pertinent medical principles. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel