Citation Nr: 18143682 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 15-31 090 DATE: October 19, 2018 ORDER The appeal is dismissed with respect to entitlement to service connection for sleep apnea. The appeal is dismissed with respect to entitlement to service connection for an eating disorder. Service connection for right wrist carpal instability status-post reconstruction is granted. An initial rating in excess of 10 percent for scars over right eye is denied. REMANDED Entitlement to a rating in excess of 10 percent for lumbar spine degenerative disc disease is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. During the June 2018 Board hearing, the Veteran made an explicit, unambiguous request to withdraw claims for service connection for sleep apnea and an eating disorder with a full understanding of the consequences of withdrawing the claims. 2. The Veteran’s right wrist carpal instability status-post reconstruction is proximately due to his service-connected left lower extremity radiculopathy disability. 3. Throughout the period on appeal, the Veteran’s two scars over right eye did not have visible or palpable tissue loss, gross distortion or asymmetry, manifest more than one “characteristic of disfigurement,” and were not unstable. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran have been met for the issues of entitlement to service connection for sleep apnea and an eating disorder. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for service connection for right wrist carpal instability status-post reconstruction have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 3. The criteria for an initial rating in excess of 10 percent for scars over right eye have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.118, Diagnostic Codes 7800, 7801, 7802, 7804, 7805 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty form February 1984 to February 1988. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Additionally, service connection may be established on a secondary basis for a disability which is proximately due to, or aggravated by, service connected disease or injury. Disability which is proximately due to or the result of a service connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for an eating disorder. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative. Id. Withdrawal is only effective if it is explicit, unambiguous, and done with the Veteran’s full understanding of the consequences. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Withdrawal of an appeal will be deemed a withdrawal of the notice of disagreement and, if filed, the substantive appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204 (c). At the June 2018 Board videoconference hearing, the Veteran indicated that he would like to withdraw his appeals for service connection for sleep apnea and an eating disorder. He indicated that he understood the consequence of his withdrawal. The Veteran’s representative was at the hearing. As such, the Veteran and his representative have clearly expressed unambiguous intent to withdraw the appeal for these issues. The Board therefore finds that the Veteran’s statement meets the criteria for withdrawal of the appeal for service connection for sleep apnea and an eating disorder. Because the Veteran has withdrawn this appeal, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues. Accordingly, the Board does not have jurisdiction to review these issues and the claims for service connection for sleep apnea and an eating disorder are dismissed. 3. Entitlement to service connection for right wrist carpal instability status-post reconstruction. The Veteran contends that his right wrist disability is secondary to his service-connected radiculopathy of the left lower extremity. He claims that in July 2015 he sustained a right wrist injury after falling due to his left lower extremity radiculopathy. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or was aggravated beyond its natural progress by service-connected disability. The Veteran has a current diagnosis of right wrist carpal instability status-post reconstruction. Thus, the remaining question is whether the medical evidence demonstrates a causal relationship between his current right wrist disability and service-connected left lower extremity radiculopathy. The Court has found that the Board may consider a physician’s opinion to be of less weight and credibility when the basis of the opinion is shown to be less than complete or contradicted by other evidence. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Medical possibilities and unsupported medical opinions carry negligible probative weight. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The Board observes that there is conflicting evidence of record as to whether the claimed condition was incurred as the result of a service-connected disability. The Veteran was afforded a VA examination in November 2016. He reported frequent falling attributed to his left leg radiculopathy disability. He stated that “he was doing siding and fell backwards over siding and landed with hyper extension on the right wrist.” The examiner opined that the Veteran’s right wrist disability is less likely than not proximately due to or the result of his service-connected left lower extremity radiculopathy. As rationale, the examiner stated that the Veteran reported that he fell over backwards while wearing an ankle foot orthosis (AFO) brace for his foot drop. The examiner explained that the AFO brace would affect the Veteran picking his foot up forward, not backwards. As such, a fall would not be related. In October 2016 and May 2017correspondence, the Veteran claimed that he was not wearing an AFO brace at the time of his July 2015 right wrist injury, as he did not receive the brace until Spring 2016. At a June 2017 informal hearing and during the June 2018 Board hearing, the Veteran again testified that he was not wearing an AFO brace at the time of his July 2015 right wrist injury. A review of the claims file shows that starting in 2014 the Veteran received private treatment to adjust his AFO brace. He underwent right wrist arthroscopy in December 2015, then in April 2016 he received a new custom AFO brace. In a June 2017 dated letter, a private physician explained that it is common practice for an AFO brace to be prescribed to prevent patients from falling. The Veteran’s initial AFO brace was a plastic leaf spring designed to address dropfoot issues. The private physician adjusted the AFO on several occasions to accommodate the Veteran’s high steep with Haglund’s deformity which made it difficult to use. The private physician recommended an external AFO to attach to the Veteran’s shoe. At a followup visit for custom orthodontics and AFO, the Veteran reported having a right wrist injury and that he was not wearing his AFO brace due to discomfort. Based on this information, the private physician opined that it is at least as likely as not that the Veteran’s left lower extremity weakness and balance issues secondary to his left lower extremity radiculopathy contributed to his July 2015 right wrist injury. In a July 2017 addendum, a VA examiner opined that the Veteran’s right wrist disability is less likely than not proximately due to or the result of his service-connected left lower extremity radiculopathy. The examiner acknowledged the Veteran’s report of injury and assertion that he was not wearing an AFO brace. The examiner stated that “even if the AFO was not on the reason he fell was that he had an accident doing siding and a backward fall would not be caused by radiculopathy.” No further rationale was provided. In light of the foregoing, the Board finds that the evidence is in relative equipoise on the question of whether the Veteran’s current right wrist disability was caused by his service-connected left lower extremity radiculopathy. Under such circumstances, the benefit of the doubt is given to the Veteran. 38 U.S.C. § 5107 (b). Accordingly, the Board resolves reasonable doubt in the Veteran’s favor and finds that the evidence supports a grant of entitlement to service connection for right wrist carpal instability status-post reconstruction. Increased Rating 4. Entitlement to an initial rating in excess of 10 percent for scars over right eye. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Veteran claims that he is entitled to a rating in excess of 10 percent for his scars disability because his scars are painful. See June 2018 Hearing Testimony. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). As background, in a September 2013 rating decision, the AOJ granted service connection for scars over right eye and assigned a rating of 10 percent, effective October 24, 2012. The Veteran timely appealed the rating decision. The Veteran is currently in receipt of a 10 percent rating for his scars over right eye disability under 38 C.F.R. § 4.118, Diagnostic Code 7800 (2017). Diagnostic Code 7800 pertaining to disfigurement of the head, face or neck, provides for a 10 percent evaluation when there is one characteristic of disfigurement. A 30 percent evaluation is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A 50 percent evaluation is assigned where there is visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. An 80 percent evaluation when there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. The eight characteristics of disfigurement for purposes of evaluation under § 4.118 are: (1) a scar 5 or more inches (13 or more cm.) in length; (2) scar at least one- quarter inch (0.6 cm.) wide at widest part; (3) surface contour of scar elevated or depressed on palpation: (4) scar adherent to underlying tissue; (5) skin hypo-or hyper- pigmented in an area exceeding six square inches (39-sq. cm.); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Id., Note (1). Diagnostic Codes 7801 provide for compensable ratings for deep and nonlinear scars of other than the head, neck, or face that affect 6 square inches or more. Diagnostic Code 7802 provide for a compensable rating for superficial scars that affect 6 square inches or more. 38 C.F.R. § 4.118. Additional evaluations are warranted based on painful or unstable scars. See 38 C.F.R. § 4.118, Diagnostic Code 7804. Diagnostic Code 7804 evaluates scars which are unstable and painful. 38 C.F.R. § 4.118. A 10 percent rating is warranted for one or two scars that are unstable or painful. A 20 percent rating is warranted for three to four scars that are unstable or painful, and a 30 percent rating is warranted for five or more scars that are unstable or painful. An unstable scar is defined as one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note (1). If one or more scars are both unstable and painful, the rating criteria provide that 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Id. at Note (2). Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable. Id. at Note (3). The Veteran was afforded a VA scar examination in April 2013. A diagnosis of scars over right eye since 1986 was provided. The examiner marked “no” that the scars were painful, were unstable with frequent loss of covering of skin over the scar, and are both painful and unstable. Two scars around the right eyebrow were found. Scar one was linear, subtly depressed, and measured 1.5 centimeters (cm) by 0.2 cm. The surface of scar one was contour depressed on palpation. Scar two was linear, slightly hypopigmented, and measured 4 cm by 0.4 cm. The total area of hypopigmentation was 1.6 squared cm. There was no gross distortion or asymmetry of facial features or visible palpable tissue loss. The scars did not result in limitation of function. The examiner indicated there were no other pertinent physical findings, complications, signs or symptoms. The Board notes that in his September 2013 notice of disagreement, the Veteran requested a 10 percent evaluation for his scar disability. As he is already in receipt of a 10 percent rating for this disability. This technically represents a full grant of benefits sought on appeal. However, in the NOD the Veteran alleged that the April 2013 VA examination was insufficient because he reported that palpitation of the scars was not painful. At the June 2018 Board hearing, the Veteran testified that his scars have “been the same since I incurred the injury.” He reported that he has pain when wearing sun goggle, washing his face, and with any kind of other pressure. He alleged that he had disfiguring characteristics and requested a separate 10 percent evaluation under Diagnostic Code 7804. A review of the claims file does not contain any other complaints of or treatment for the right scars disability. Based on the above, the Board finds that throughout the appeal period a rating in excess of 10 percent is not warranted for the scars disability. The evidence of record does not support a higher rating under Diagnostic Code 7800. Although on April 2013 examination hypopigmentation was found, it is not a characteristic of disfigurement because it did not excess 6 square inches (39 square cm). On the contrary, hypopigmentation only measured 1.6 square cm. There was also was no evidence of gross distortion or asymmetry of facial features or visible palpable tissue loss. As for the applicability of other diagnostic codes, the Veteran’s scars are located on his face. Thus, Diagnostic Codes 7801 and 7802 are not for application. A higher or separate rating is also not available under Diagnostic Code 7804. Initially, the Board notes that the Veteran is competent to report symptoms capable of lay observation, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, to the extent he reports that his scars are unstable, this is given less probative weight than the VA examination report, which objectively noted no unstable scars after undergoing testing to specifically determine if any unstable scars were clinically present. Under Diagnostic Code 7804, a 20 percent rating is warranted for three to four scars that are unstable or painful. Here, because the Veteran only has two scars, a 20 percent rating is not warranted. Although he meets the criteria for a 10 percent rating based on having two scars that are painful, he is already in receipt of a 10 percent rating under another diagnostic code. As such, Diagnostic Code 7804 does not provide a higher rating. The Board has also considered whether an extra 10 percent rating for one or more scars that are both unstable and painful is warranted under Diagnostic Code 7804, Note (2), however, the evidence weighs against the claim. Here, the Veteran’s scars are not unstable. As discussed, although the Veteran is competent to report symptoms of pain, he is not competent to make a clinical finding that his scars are unstable. On the contrary, the April 2013 VA examiner found that the Veteran’s scars were not unstable with frequent loss of covering of skin over the scar, and were not both painful and unstable. As the evidence does not show both unstable and painful scars, a separate 10 percent rating is not warranted. Moreover, there is no indication that there are disabling effects of the scar that would warrant rating under other diagnostic codes pursuant to Diagnostic Code 7805. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for an initial rating higher than 10 percent for scars over right eye throughout the appeal period, and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3 (2017). As a final note, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. The symptoms associated with the Veteran’s disability, such as pain and characteristics of disfigurement, are contemplated by the rating criteria and the evidence fails to show anything unique or unusual about the Veteran’s condition that would render the schedular criteria inadequate. Referral for consideration of an extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for lumbar spine degenerative disc disease is remanded. 2. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy is remanded. At the June 2018 Board hearing, the Veteran indicated having a worsening of back symptoms. He reported an increase in pain, decrease in range of motion, muscle spasms, and radiating pain to his lower extremity. He stated that he was unable to perform a toe raise. In February 2016, the Veteran underwent a surgical procedure to redo left L5-S1 laminotomy, medial facetectomy, foraminotomy, and microdiscectomy with extraordinary difficulty. At a June 2017 informal hearing, the Veteran reported an increase in pain in his left lower extremity. He stated that he frequently falls because of the inability to feel his left foot. He reported recent falls climbing out of his truck and at a gun range. He submitted a private disability benefit questionnaire (DBQ), dated May 2017. VA medical records document the Veteran’s report of worsening symptoms in his left lower extremity. In January 2018, he reported the use of several leg braces that failed to provide stability and caused an increase in falls. He requested a new left side leg brace that he received in May 2018. On June 2018 physical examination, he was unable to perform a single leg raise test on the left side. A review of the claims file shows that the Veteran was last afforded a VA examination in March 2015. While the mere passage of time is not grounds for a new examination, a new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. See 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In light of the Veteran’s testimony, and VA and private medical records discussed above, he should be afforded a new VA examination to determine the current severity of his lumbar spine disability and associated left lower extremity radiculopathy symptoms. Additionally, in the recent case of Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court addressed the responsibilities of a VA examiner and the Board when an examiner is asked to provide an opinion as to additional functional loss during flare-ups of musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995), and the examiner states that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare, the Court reinforced that to be adequate, a VA examination of the joints must follow specific requirements. The Court explained that case law and VA guidelines anticipate that examiners will offer flare opinions based on estimates derived from information procured from relevant sources, including lay statements of veterans. An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. Summarizing DeLuca, the Court found that to be adequate, an examination although acknowledging that the Veteran was not then suffering from a flare of any conditions, must also ascertain adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding flares by alternative means. Furthermore, pursuant to DeLuca, and its progeny, the examiner must offer an estimate as to additional functional loss during flares regardless of whether the veteran was undergoing a flare-up at the time. DeLuca v. Brown, 8 Vet. App. 202 (1995). Additionally, the Court explained that in the case of Jones v. Shinseki, 23 Vet. App. 382 (2010), the Board could treat as adequate an examiner’s statement that he or she could not offer an opinion without resorting to speculation. First, it must be clear that an examiner has “considered all procurable and assembled data” before stating that an opinion cannot be reached. Id. at 390 (internal quotation marks omitted). The Court further explained that when the record is unclear as to whether a VA examiner has done this-for example, “by obtaining all tests and records that might reasonably illuminate the medical analysis”-the Board must remand the matter for clarification or additional development. Id. Second, the examiner must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered. Id. The Court concluded it must be apparent that the inability to provide an opinion without resorting to speculation “reflect[s] the limitation of knowledge in the medical community at large” and not a limitation-whether based on lack of expertise, insufficient information, or unprocured testing-of the individual examiner. Id. As part of this obligation, a VA examiner should identify when specific facts cannot be determined. Id. The Court summarized that neither the law nor VA practice requires that an examination be conducted during a flare for the functional impairment caused by flares to be taken into account. Instead, DeLuca and its progeny clearly, albeit implicitly, anticipated that examiners would need to estimate the functional loss that would occur during flares, as is evident from the facts in DeLuca indicating that his left shoulder disorder flared only “at times.” 8 Vet. App. at 204; see, e.g., Mitchell v. Shinseki, 25 Vet. App. 44 (2011) (finding inadequate a medical opinion where an examiner did not offer an opinion as to additional function loss during flares “despite noting the appellant’s assertions” regarding the frequency, duration, and severity of those flares); cf. Petitti v. McDonald, 27 Vet. App. 415, 429-30 (2015) (holding that credible lay evidence of functional loss due to pain, including during flare periods, observed outside of the VA examination context could constitute objective evidence in support of an evaluation). Here, the March 2015 VA examiner stated that he was unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare-up with no further rationale. The May 2017 private DBQ noted the Veteran’s report of flare-ups, but did not provide clinical findings on additional functional loss or offer a medical opinion. These responses do not meet the standards presented by the recent holding in Sharp. Therefore, the Veteran should be afforded a new examination for his lumbar spine and associated left lower extremity radiculopathy disabilities before a decision can be rendered on his claims. The matters are REMANDED for the following action: 1. Ensure the Veteran is scheduled for a VA examination as to the severity of his lumbar spine and associated left lower extremity radiculopathy disabilities. The examiner must review the claims file in conjunction with the examination. The examination must be in compliance with 38 C.F.R. § 4.59. The examiner should also state whether the Veteran’s disability is manifested by weakened movement, excess fatigability, incoordination, or pain. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. If pain is present during the range of motion, the examiner should identify at what point during the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. The examiner must also address whether the Veteran has neurological abnormalities associated with his spine disability, and, if so, the severity of such abnormalities. The examiner must test the passive and active range of motion of the back and indicate whether he or she has done so, and if not, provide an explanation as to why this was not feasible. Additionally, if the Veteran reports flare-ups, the examiner should provide an estimate of the additional functional loss during a flare-up. If the examiner cannot do so, he or she must explain why. A statement that it was not possible because the examiner did not observe a flare-up, without more, is not adequate. Finally, the examiner must comment on the functional limitations resulted from the lumbar spine and left lower extremity radiculopathy disabilities and any other related symptoms.   2. After undertaking any other development deemed appropriate, readjudicate the claims that are the subject of this remand. If any benefit on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case. Afford an appropriate period of time for response. Thereafter, the case should be returned to the Board, if in order. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel