Citation Nr: 18147883 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-24 958 DATE: November 6, 2018 ORDER Entitlement to a rating in excess of 10 percent for residual burn scars of the left forehead, left cheek, and nose is denied. Entitlement to an initial compensable rating for residual burn scars right and left forearms is denied. Entitlement to an initial compensable rating for a residual scar on the left knee is denied. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for breathing problems, also claimed as pleural plaques, asthma, and chronic obstructive pulmonary disease (COPD), to include as due to exposure to asbestos FINDINGS OF FACT 1. Throughout the appeal period, residual burn scars of the left forehead, left cheek, and nose were manifested by one characteristic of disfigurement based on the two-centimeter width of the left forehead and left cheek scars as measure on examination in April 2013. 2. Throughout the appeal period, residual burn scars of the right and left forearms have been manifested by a total area of two square centimeters at most; the scars have not been painful or unstable or caused any functional impairment. 3. Throughout the appeal period, a superficial left knee linear scar measured 4.5 cm by 0.2 cm, was not painful or unstable, and did not cause any limitation of function. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for residual burn scars of the left forehead, left cheek, and nose have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7800 (2017). 2. The criteria for entitlement to an initial compensable rating for residual burn scars right and left forearms have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7802 (2017). 3. The criteria for entitlement to an initial compensable rating for a residual scar on the left knee have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7805 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to December 1969. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2013 rating decision. The Board observes that during the pendency of this appeal, the Veteran appealed other issues that were denied in October 2016 and March 2018 rating decisions. The issues from the former decision include whether new and material evidence has been received to reopen previously denied claims of entitlement to service connection for a back injury, hypertension, insomnia, a left knee disorder, Parkinson’s disease, a right second metatarsophalangeal joint dislocation, and a skin disorder; entitlement to a rating in excess of 50 percent for PTSD; and an effective date earlier than June 16, 2016 for the award of an increased, 50 percent rating for PTSD. From the latter decision, the issues appealed include entitlement to service connection for sleep apnea and headaches. Because these issues are still under review by the regional office (RO) and have not been certified to the Board, they are not yet ripe for the Board’s review. Increased Rating Disability ratings are determined by applying the criteria set forth in 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 (2012); 38 C.F.R. § 4.1 (2017). 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. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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). Generally, when an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are also for consideration in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Analysis in this decision has therefore been undertaken with consideration of the possibility that different ratings may be warranted for different time periods. By way of history, the Board notes that the Veteran sustained burn scars and other scars on his face, forearms, and left knee while serving aboard the USS Frank E. Evans when an Australian aircraft carrier collided with it in June 1969. VA treatment records associated with the claims file do not reflect complaints or findings related to the Veteran’s service-connected scars. 1. Entitlement to a rating in excess of 10 percent for residual burn scars of the left forehead, left cheek, and nose Effective since his claim for an increased rating was received on December 9, 2010, the Veteran’s residual burn scars on the left forehead, left cheek, and nose have been rated 10 percent disabling pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7800. Under these criteria, a 10 percent rating is assigned for scars of the head, face, or neck due to burns or other causes, or other disfigurement of the head, face, or neck, with one characteristic of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800. A 30 percent rating is assigned for scars of the head, face, or neck due to burns or other causes, or other disfigurement of the head, face, or neck, 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. Id. Higher ratings are available for scars causing gross distortion or asymmetry of more features or paired sets of features, or when more characteristics of disfigurement are present. Id. The 8 characteristics of disfigurement for purposes of evaluation under section 4.118 are: scar 5 or more inches (13 or more centimeters (cm)) in length; scar at least one-quarter inch (0.6 cm) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm); skin indurated and inflexible in an area exceeding six square inches (39 sq. cm). 38 C.F.R. § 4.118, Diagnostic Code 7800, Note (1). In evaluating scars of the head, face, or neck, VA will take into consideration unretouched color photographs. Id. Note (3). Disabling effects other than disfigurement that are associated with individual scar(s) of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, will be separately evaluated under the appropriate diagnostic code(s) and the evaluation(s) will be combined with the evaluation assigned under this diagnostic code pursuant to 38 C.F.R. § 4.25. Id., Note (4). Finally, the characteristic(s) of disfigurement may be caused by one scar or by multiple scars; the characteristic(s) required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. Id., Note (5). During an April 2011 VA fee-basis examination, the Veteran described steam burns sustained to his face during the June 1969 collision aboard the USS Frank E. Evans. On examination, he had three burn scars on his face: one at the base of his nose measuring 1 cm by 0.3 cm, a second on his forehead measuring 1 cm by 0.2 cm, and a third on his left check measuring 1 cm by 0.1 cm. Each scar was linear, level, and superficial without skin breakdown or underlying tissue damage, visible or palpable tissue loss, or adherence to underlying tissue. None of the scars were painful on examination. There was no inflammation, edema, keloid or other disfiguring formation, abnormal texture, hypo- or hyper-pigmentation, induration, or inflexibility of any scar. None of the scars caused limitation of motion or other limitation of function. In addition, there was no gross distortion or asymmetry of the forehead, nose, cheeks, or facial features. In April 2013, the Veteran presented for another VA fee-basis examination to evaluate the current severity of his facial burn scars. On examination, none of the scars were painful or unstable. The nose scar measured 0.5 cm by 0.2 cm and was identified as a laceration scar; the left forehead and left cheek scars each measured 2 cm by 2 cm. None of the scars were manifested by elevation, depression, or adherence to underlying tissue. There was no visible or palpable tissue loss, hypo- or hyper-pigmentation, induration or inflexibility, abnormal texture, gross distortion or asymmetry of facial features, or limitation of function due to any of the scars. Having considered the medical and lay evidence of record, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran’s burn scars on the left forehead, left cheek, and nose. Throughout the appeal period, his facial scars have been manifested at worst by left forehead and left cheek scars measuring at least 0.6 cm wide at the widest part on examination in April 2013. In other words, one of the characteristics of disfigurement has been met. These findings are consistent with the 10 percent rating currently assigned, effective December 9, 2010. A higher rating is not warranted for the Veteran’s facial scars at any time during the appeal because no other characteristic of disfigurement was shown during either VA fee-basis examination other than the “width characteristic” of the left forehead and left cheek scars. In addition, at no time were the Veteran’s facial scars manifested by visible and palpable tissue loss and either gross distortion or asymmetry of any one feature or paired set of features. The Board has reviewed the color photographs obtained on examination, but finds the photographs do not support a higher rating. The Board also considered whether a higher rating is warranted under alternative rating criteria. However, in the absence of at least three facial scars that are unstable or painful or facial scars that cause some disabling impairment, such as limitation of motion, a higher rating is not warranted. See 38 C.F.R. § 4.118, Diagnostic Codes 7804, 7805. Moreover, neither the Veteran nor his attorney representative has provided any evidence or argument subsequent to the May 2013 RO’s denial of this claim as to why a higher rating is warranted. 2. Entitlement to an initial compensable rating for residual burn scars right and left forearms The Veteran’s residual burn scars of the right and left forearms are rated as noncompensable or zero (0) percent disabling pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7802. Under these criteria, a 10 percent rating is assigned for burn scar(s) or scar(s) due to other causes not of the head, face, or neck that are not associated with underlying soft tissue damage when an area or areas measure(s) 144 square inches (929 sq. cm) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802. For the purposes of Diagnostic Codes 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Id., Note (1). A separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body. Combine the separate evaluations under §4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. Id., Note (2). During an April 2011 VA fee-basis examination, the Veteran described steam burns sustained to his right and left forearms during the June 1969 collision aboard the USS Frank E. Evans. On examination, the right forearm scar measured 3.5 cm by 0.1 cm and the left forearm scar measured 3 cm by 0.1 cm. Both scars were linear and superficial with no underlying tissue damage. Neither scar was painful on examination. There was no skin breakdown, inflammation, edema, keloid formation, or other disfigurement. Neither scar caused limitation of motion or any limitation of function. In April 2013, the Veteran presented for another VA fee-basis examination to evaluate the current severity of his burn scars on his forearms. The right forearm scar measured 2 cm by 0.5 cm and the left forearm scar measured 1 cm by 1 cm. Each scar was superficial and non-linear. Neither scar was painful or unstable or caused limitation of function. The Board has considered the medical and lay evidence of record and finds that an initial compensable rating is not warranted for scars on the Veteran’s right and left forearms. Since service connection was established, the Veteran’s burn scars on his forearms, combined, have measured no more than 2 cm squared. Therefore, because his scars on his forearms do not have a total area of 929 square centimeters or greater, a higher, 10 percent rating is not warranted and the noncompensable rating currently assigned is correct. The Board has considered other potentially applicable Diagnostic Codes, but finds that a higher or separate rating is not warranted for the forearm scars. They have not been of sufficient size; manifested by characteristics such as underlying soft tissue damage, instability, or pain; or caused other disabling effects to warrant a higher, compensable rating at any time during the appeal. See 38 C.F.R. § 4.118, Diagnostic Codes, 7801, 7804, 7805. Moreover, neither the Veteran nor his attorney representative has provided any evidence or argument subsequent to the May 2013 RO’s denial of this claim as to why a higher rating is warranted. 3. Entitlement to an initial compensable rating for a residual scar on the left knee Since service connection was established effective December 9, 2010, the Veteran’s residual left knee scar has been rated as noncompensable or zero (0) percent disabling pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7805, which provides that any disabling effect(s) for other scars and other effects of scars not considered in a rating provided under diagnostic codes 7800 to 7804 will be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. In April 2013, the Veteran was afforded a VA fee-basis examination to evaluate his laceration scar on the left knee. On examination, a superficial left knee linear scar measured 4.5 cm by 0.2 cm. It was not painful or unstable and did not cause any limitation of function. Having considered the evidence of record, the Board finds a higher, compensable rating for the left knee scar is not warranted at any time during the appeal. Although the Veteran has one or more linear scars, none, including the left knee scar, is shown to be unstable or painful or to cause any disabling effects. Therefore, a compensable rating for the left knee scar is not warranted at any time during the appeal. Moreover, neither the Veteran nor his attorney representative has provided any evidence or argument subsequent to the May 2013 RO’s denial of this claim as to why a higher rating is warranted. Summary In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claims for higher or separate ratings than that/those assigned for scars of his face, forearms, and left knee, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for GERD, to include as secondary to service-connected PTSD is remanded. The Veteran contends that his current GERD disability is secondary to his service-connected PTSD, including medications taking for his PTSD symptoms. In April 2013, the Veteran was afforded a VA fee-basis examination to determine the nature and etiology of his GERD disability. While the examiner provided an opinion and medical rationale as to whether the Veteran’s PTSD disability and medications proximately caused the Veteran’s GERD, the examiner did not provide an opinion as to whether the PTSD disability and/or medications for PTSD aggravate(d) the Veteran’s GERD. As a result, the Board must remand the appeal to obtain a medical opinion that addresses the issues of aggravation. Before obtaining the requested medical opinion, the agency of original jurisdiction (AOJ) must obtain any ongoing VA treatment records and associate them with the Veteran’s electronic claims file. 2. Entitlement to service connection for breathing problems, also claimed as pleural plaques, asthma, and COPD, to include as due to exposure to asbestos The Veteran served on three different ships during his military service; his service personnel records identify his Navy rating as machinist’s mate and his DD214 lists his related civilian occupation as marine mechanic. He asserts that he has a breathing disability, also claimed as pleural plaques, asthma, and COPD, due to exposure to asbestos while performing his military duties. The Board notes there is no specific statutory or regulatory guidance with regard to claims of service connection for asbestos-related diseases. However, VA’s Adjudication Procedures Manual addresses these types of claims. See M21-1, Part IV, Subpart ii, Chap. 1, Sec. I, Para. 3 [hereinafter M21-1] (M21-1, IV.ii.1.I.3), entitled “Developing Claims for Service Connection for Asbestos-Related Diseases” (updated May 23, 2018) and M21-1, IV.ii.2.C.2 entitled “Service Connection for Disabilities Resulting from Exposure to Asbestos” (updated Nov. 2, 2016). The manual provisions acknowledge that inhalation of asbestos fibers or particles can result in fibrosis, the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis; tumors; pleural effusions and fibrosis; pleural plaques (scars of the lining that surrounds the lungs); mesotheliomas of the pleura and peritoneum; and cancers of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate). M21-1, IV.ii.2.C.2.b. The latent period for development of disease due to asbestos exposure ranges from 10 to 45 years or more between first exposure and development of disease. M21-1, IV.ii.2.C.2.f. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, IV.ii.2.C.2.g. Diagnostic indicators include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. Id. A table describing the probability of asbestos exposure by Navy military occupational specialty (MOS) identifies Machinist Mate as an MOS having probable asbestos exposure. M21-1, IV.ii.1.I.3.d. A February 1966 enlistment report of medical history reflects the Veteran’s report of having a history of asthma and shortness of breath. A physician’s summary elaborated that the Veteran had had childhood asthma. An enlistment examination report from the same day documents the Veteran’s lungs and chest were normal on clinical evaluation and a chest x-ray was negative. No defects or diagnosis was noted. The remaining service treatment records are entirely silent for complaints, diagnosis, or treatment for breathing problems such as asthma or other respiratory or pulmonary problems. Therefore, a breathing disorder was neither noted at entry to service, nor manifested during active duty. Statements from the Veteran indicate he worked as an auto repairman from 1969 to 1974 and worked as an insurance agent since 1974. Evidence of record also reflects his reports that he smoked between 1 to 1.5 packs of cigarettes per day until he quit in 1984. Among VA treatment records dating since April 2001, the Veteran consistently denied symptoms of shortness of breath, dyspnea on exertion, chest pain, or weight loss. The records documented lungs clear to auscultation bilaterally and obesity. During an October 2001 visit, the Veteran reported his history of asbestos exposure many years ago and requested a chest x-ray. He denied any cough, weight loss, shortness of breath, or night sweats and the examiner remarked that the Veteran was asymptomatic. The impression of a November 2002 baseline chest x-ray was negative study. The report indicated the pulmonary vascularity was normal, the lungs were clear, and there was no radiographic evidence of asbestosis. Subsequent treatment records reflect the Veteran continued to deny any breathing problems. During a March 2008 VA pulmonary consultation, the Veteran remained asymptomatic, denying any shortness of breath, chest pain, fever, or weight loss. The pulmonologist indicated that the Veteran gets routine chest x-rays every year due to his history of asbestos exposure and remarked that multiple pleural plaques seen on the last chest x-ray on February 27, 2008 had not changed in comparison to the previous examination in January 2008 or in comparison to films going back to “November 20 2, 2005 [sic].” The impression was history of asbestos exposure and multiple pleural plaques that are unchanged in the last three years. The pulmonologist explained that pleural plaques are usually benign and related to asbestos exposure, but recommended a CT chest study for better documentation of the pleural plaques. A June 2008 CT chest examination revealed bilateral calcified and noncalcified pleural plaques consistent with asbestos-related pleural disease. A June 2008 VA pulmonary clinic note reflects the Veteran’s report that he had begun to experience some symptoms of breathing difficulty. He stated that during the past one or two months, he had noticed some nocturnal wheezing with shortness of breath or cough that wakes him up. He also related that he was told years ago that he may have had childhood asthma. The impression was history of asbestos exposure with stable pleural plaques, ex-smoker, occasional nocturnal wheezing. The differential diagnosis was mild intermittent asthma, versus COPD, versus GERD-induced bronchospasm. An August 2008 pulmonary clinic note indicates that pulmonary function testing revealed an obstructive defect with significant bronchodilator response consistent with mild persistent asthma and unlikely COPD. The pulmonologist started the Veteran on albuterol as needed. Subsequent treatment records documented ongoing treatment for episodic, mild persistent asthma and monitoring of the Veteran’s asbestos-related pleural plaques. In addition, the evidence demonstrates that sometime between March 2013 and March 2016, the Veteran was diagnosed with severe COPD, which was attributed to his 50 pack-year smoking history. Those records are not associated with the claims file and should be obtained on remand. In April 2013, the Veteran was afforded a VA fee-basis examination to determine whether any current disability manifested by breathing problems was related to his military service, including his probable exposure to asbestos. The examiner concluded that despite the Veteran’s smoking history, which presented a “high risk for the development” of COPD, the Veteran did not currently have COPD. The examiner explained that if the Veteran had COPD, his chest x-ray would show hyperinflated lungs and indicated that his pulmonary function test (PFT) would show an obstructive pulmonary defect. Instead, his present chest x-ray was reported as normal and his PFT demonstrated a restrictive pulmonary defect. Therefore, the examiner diagnosed asthma and opined that it was less likely than not incurred in or caused by military service, including asbestos exposure, because the Veteran’s “physique of obesity…can explain his restrictive pulmonary defect.” The examiner also explained that the Veteran did not have a disability related to asbestos exposure because the chest x-ray would be “abnormal with pleural plaques or calcification; however, his present x-ray is normal.” The examiner indicated that the “B reading” was pending and the opinion could change if the B reading is abnormal. Unfortunately, the examiner did not explain why the Veteran’s current asthma disability was more likely related to obesity than to in-service asbestos exposure and did not address other chest x-ray and CT chest studies of record that have documented pleural plaques attributed by several pulmonologists to the Veteran’s military asbestos exposure. Based on these facts, the Board requires additional medical opinion evidence to decide whether any current breathing disability, manifested by either a restrictive pulmonary defect or an obstructive pulmonary defect, is related to the Veteran’s military service, including his probable exposure to asbestos while performing his duties as a machinist mate. The matters are REMANDED for the following action: 1. Obtain the following records from the West Los Angeles VA Medical Center and Gardena VA Community Based Outpatient Clinic: (a) all chest x-ray and chest CT reports dated prior to March 2008; (b) all treatment records dated from March 2013 to March 2016, including reports or any chest x-ray or chest CT studies and reports of any pulmonary function testing; and (c) any ongoing treatment records dating since May 2018. 2. Provide the Veteran’s electronic claims file to an appropriate medical professional. Following a review of the claims file, the reviewing examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s GERD was, or is, aggravated by his service-connected PTSD, including any medications taken for PTSD symptoms. A complete medical explanation must be provided for all opinions expressed. If the clinician determines that an examination is necessary to provide the requested opinion, one should be scheduled. (Continued on the next page)   3. Arrange for the Veteran to undergo an examination by an appropriate clinician, such as a pulmonologist, to determine the nature and etiology of any current disability manifested by breathing problems. Currently, the evidence of record documents asbestos-related pleural disease, which was asymptomatic until May or June 2008; episodic, mild persistent asthma diagnosed in 2008; and COPD, which was diagnosed sometime between March 2013 and March 2016. In addition, a differential diagnosis in June 2008 included GERD-induced bronchospasm. The electronic claims file and a complete copy of this REMAND must be made available to the clinician for review in connection with the examination. All indicated tests and studies should be accomplished and the reports of such must be associated with the examination report. Following a review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any current disability manifested by breathing problems (1) had its onset in service or is otherwise medically related to service, including the Veteran’s probable exposure to asbestos during his military duties as a machinist mate, or (2) was caused, OR is or has been aggravated by service-connected PTSD, including medications taken for PTSD symptoms. A complete medical explanation must be provided for all opinions rendered. For example, if the examiner concludes the Veteran has a disability manifested by breathing problems that is more likely associated with obesity than asbestos exposure, the examiner should provide a medical rationale for his/her opinion. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel