Citation Nr: 18148286 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-23 018 DATE: November 8, 2018 ORDER Entitlement to service connection for residuals of a traumatic brain injury (TBI) is granted. Entitlement to service connection for a neck disability is granted. Entitlement to service connection for a low back disability, to include as secondary to a service-connected left ankle disability, is granted. Entitlement to service connection for radiculopathy of the left lower extremity, to include as secondary to a low back disability, is granted. Entitlement to service connection for obstructive sleep apnea, to include as secondary to TBI and a neck disability, is granted. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to TBI and a neck and low back disability, is granted. Entitlement to the restoration of the 30 percent rating for scars, residual of a chin laceration, reduced to 10 percent from October 1, 2016, is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his residuals of a TBI are at least as likely as not related to injuries sustained during active service. 2. Resolving reasonable doubt in the Veteran’s favor, his neck disability is at least as likely as not related to his active service. 3. Resolving reasonable doubt in the Veteran’s favor, his low back disability is at least as likely as not related to his active service. 4. Resolving reasonable doubt in the Veteran’s favor, his radiculopathy of the left lower extremity is at least as likely as not related to his active service. 5. The Veteran’s obstructive sleep apnea is proximately due to his TBI and a neck disability. 6. The Veteran’s acquired psychiatric disorder is proximately due to his TBI and neck and low back disabilities. 7. The July 2013 grant of a 30 percent rating for scars, residual of a chin laceration, was clearly and unmistakably erroneous. As such, the reduction of his disability rating from 30 percent to 10 percent, effective October 1, 2016, was proper. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a TBI have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for a neck disability have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for secondary service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310 (2017). 6. The criteria for secondary service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310. 7. The criteria for restoration of the 30 percent rating for scars of the face have not been met. 38 U.S.C. §§ 1155, 5112 (2012); 38 C.F.R. §§ 3.104, 3.105, 4.1, 4.7, 4.118 Diagnostic Codes 7800, 7804 (2017). INTRODUCTION The Veteran served on active duty from July 1976 to October 1976 and had additional periods of active duty for training from 1976 to 1997. The Board notes that the Agency of Original Jurisdiction (AOJ) only adjudicated whether the Veteran was entitled to service connection for depression. The record shows the Veteran has been diagnosed with other psychiatric disabilities including anxiety disorder and adjustment disorder. Therefore, the Board has expanded the matter to include all psychiatric disabilities however diagnosed, and recharacterized the claim, as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Lay evidence has been found to be competent with regard to a disease that has “unique and readily identifiable features” that are “capable of lay observation.” See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Further, a layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Moreover, lay evidence can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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 Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Service Connection Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Further, service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Alternatively, service connection may be granted on a secondary basis for a disability that is proximately due to or the result of (caused) or permanently worsened beyond its natural progression (aggravated) by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc). In his November 2017 statement, the Veteran described several incidents which he alleged were related to his claimed disabilities. He described a January 1980 incident where he slipped on the frozen ground and fell, injuring his back, head, and neck, noting that he immediately experienced an excruciating headache and severe back and neck pain that affected his ability to ambulate. He stated that ever since this incident, he had experienced constant back and neck pain, as well as recurring headaches. Further, the Veteran stated he sustained an injury during a physical training volleyball game in April 1991, where he struck his chin on another person’s head. He indicated his head whipped backward and then impacted the concrete ground. He reportedly lost consciousness upon impacting the ground and was transported by ambulance to the hospital, where he was told he had a concussion. The Veteran alleges that after the April 1991 incident, his headaches, back, and neck symptoms worsened and he started having difficulty focusing and concentrating. Additionally, the Veteran described a December 1982 incident where he slipped from a “5-YD Loader” and fell about 10 feet down, impacting his head, back, neck, and leg. The Board notes the occurrence of the January 1980, December 1982, and April 1991 incidents are confirmed by the Veteran’s service treatment records (STRs). A January 1980 slick slip reflect the Veteran broke a right upper molar after he slipped on ice and fell. Further, a December 1982 treatment note indicates the Veteran fell from a 5 YD loader and injured his leg. The physician recommended that the Veteran did not perform strenuous exercise. Additionally, an April 1991 Statement of Medical Examination and Duty Status indicate the Veteran struck another person’s head while playing volleyball during a period of active duty for training and was taken to the hospital by ambulance, where he received sutures, x-rays and was recommended an appointment for oral surgery. An April 1991 Ambulance Medical Necessity Form, signed by the Emergency Room physician, reflect the Veteran was not ambulatory and he could not have been transported by any other means without endangering his condition. Entitlement to service connection for residuals of a traumatic brain injury (TBI) The Veteran seeks service connection for a TBI, which he contends originated in service. Specifically, he alleges his TBI was the result of the head injuries sustained in January 1980 and April 1991. Further, he states his TBI has resulted in frequent headaches and difficulty focusing and concentrating. As stated above, the occurrence of the January 1980 and April 1991 incidents is confirmed by the Veteran’s STRs. A July 1993 “Reserve Quad” physical examination shows the Veteran reported frequent or severe headaches, frequent trouble sleeping, and depression or excessive worry. The Board observes the Veteran’s April 1976 US Army Reserve enlistment examination does not reveal any symptoms or conditions other than mild pes planus. Similarly, a January 1982 “Reserve Quad” physical examination does not reflect any medical condition other than an injured left knee. VA treatment records indicate the Veteran underwent a TBI evaluation in July 2014, which was performed by a VA neurologist. On that occasion, the Veteran reported multiple symptoms which originated after his April 1991 injury, including gradually worsening cervicalgia, headaches, difficulty concentrating, problems with his short and long-term memory, gradually worsening organization, irritability, auditory hallucinations, intermittent depressive symptoms, paranoid ideation, and chronic difficulty sleeping. The physician stated that based on the limited available records, the Veteran’s April 1991 injury appeared to be a mild TBI. However, the VA neurologist noted this TBI appeared to be of low probability to cause persistent cognitive sequelae. Subsequently, in September 2014, the VA neurologist opined the Veteran’s April 1991 TBI would not be etiologic in the Veteran’s more recent decline in cognitive function. The Veteran was afforded a VA TBI examination in March 2015. On that occasion, the VA examiner stated the Veteran did not have and had never had a TBI or any residuals of TBI. Additionally, the examiner opined the Veteran’s claimed residuals of TBI were less likely than not incurred in or caused by the April 1991 injury. In support of this opinion, the examiner noted the April 1991 medical evaluation did not mention a loss of consciousness and no attempt to image the Veteran’s brain with a CAT scan was ordered at that time. Further, the examiner stated that if TBI was suspected by the April 1991 treating physicians, ‘a CAT scan of the brain would very likely have been done and head trauma would have been mentioned in the records.” The Board finds the March 2015 VA TBI examination to be inadequate for adjudication purposes, as the examiner failed to provide an adequate rationale for the proffered findings and opinions. Notably, the examiner disregarded the assessment of the July 2014 VA neurologist, who found the Veteran had a mild TBI in April 1991. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (To be considered adequate, a medical examination report must contain not only clear conclusions and supporting data, but also a reasoned medical explanation connecting the two). Further, the examiner ignored the Veteran’s reports of loss of consciousness and based his opinion on the lack of corroborating medical records, as well as on speculation regarding the April 1991 treating physician mental process. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (a medical examiner is not free to simply ignore a veteran’s lay statements recounting symptoms or events and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). Moreover, VA treatment records dated after the March 2015 VA TBI examination reflect a current diagnosis of TBI with loss of consciousness. In a January 2016 letter, the Veteran’s treating chiropractor stated the Veteran sustained a whiplash injury concussion in April 1991, which resulted in a TBI. Further, the physician noted the Veteran had been suffering from TBI residuals since April 1991, including difficulty with attention, concentration, distractibility, memory, speed of processing, confusion, impulsiveness, chronic pain, persistent headaches, loss of coordination, sleep disorders, mood changes, irritability, aggression, depression, and anxiety. Moreover, the treating chiropractor opined the Veteran’s current pain and disability were directly related to the traumas sustained in-service, especially the one in April 1991. In October 2017, the Veteran underwent an independent neurological examination, performed by a Board-Certified Neurosurgeon and Psychiatrist. After a thorough review of the Veteran’s STRs, and VA and private medical records, the private examiner opined it was more likely than not that the Veteran sustained a TBI from the above-described January 1980 and April 1991 in-service injuries. Further, the examiner opined it was at least as likely as not that the Veterans TBI was the primary contributor of his cognitive impairment. The examiner also opined it was at least as likely as not that the Veterans headaches, dizziness, depression, and sleep impairment were residuals of his TBI. The October 2017 private examiner provided an adequate rationale for the proffered opinions and addressed the conflicting evidence of record, including the opinions of the July and September 2014 VA neurologist’s opinions and the March 2015 VA examination report and opinion. The private examiner indicated that while the evidence associated with the Veteran’s April 1991 head injury is limited, it is indicative of an alteration in the Veteran’s level of consciousness, as he was not ambulatory and was not aware of the ambulance ride. Further, the examiner stated traumatic brain injuries, particularly repeated injuries, are not static, but progresses over long periods of time; thus, the Veteran’s 1991 TBI, with likely head trauma in 1980 as well, was a major contributor to his current functional impairments, along with his severe chronic pain, which very likely was triggered by the same injuries. Additionally, the examiner cited to recent medical literature which indicated that TBI is not an isolated event “but a disease process that may cause and/or accelerate medical and mental health morbidity long after the initial injury.” Moreover, the examiner indicated that having a positive MRI for a traumatic lesion is not necessary for the diagnosis of TBI, as there are no reliable biomarkers or radiologic studies that definitively diagnose the presence or absence of TBI. Upon a review of the evidence of record and having resolved all reasonable doubts in favor of the Veteran, the Board finds service connection is warranted for the Veteran’s residuals of TBI. The Board acknowledged the July and September 2014 VA neurologist’s opinions, as well as the March 2015 VA examiner’s opinion. However, these opinions are outweighed by the October 2017 independent examination report and opinions, as the private examiner provided an adequate rationale for the proffered opinions and addressed the conflicting evidence of record. Further, the Board notes the October 2017 private examiner is a Board-Certified Neurosurgeon and Psychiatrist, who served in the United States Air Force as a Flight Surgeon and surgical assistant on a Neurosurgical Service. He has also worked in multiple Veterans Administration Medical Centers, both as a neurosurgeon and as a psychiatrist. Additionally, he was the Medical Director of a Traumatic Brain Injury Rehabilitation Program from 1987 to 1994. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases). See also Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches”). In sum, the Board finds the evidence in favor and against the Veteran’s claim is at least in equipoise. As such, service connection is granted for the Veteran’s residuals of TBI. Entitlement to service connection for a neck disability, low back disability, and radiculopathy of the left lower extremity The Veteran seeks service connection for a neck and low back disability, which he contends originated in service and continues to the present. Specifically, he stated his neck and low back disabilities are related to the above-described in-service incidents of January 1980, December 1982, and April 1991, in which he injured his back, head, and neck. Alternatively, the Veteran contends that his low back disability was caused by his service-connected left ankle disability. Further, he alleges his radiculopathy of the left lower extremity is the result of his low back disability. At the outset, the Board notes the in-service event and current disability criteria are uncontroverted. As stated above, the occurrence of the January 1980, December 1982, and April 1991 incidents is confirmed by his STRs. In addition, the medical evidence of record reflects a current diagnosis of cervical degenerative disc disease, left cervical radiculopathy, lumbar degenerative disc disease, left lumbar radiculopathy, and lumbar spinal stenosis. The Veteran STRs show the Veteran injured his back in January 1980 and experienced lower back pain. A December 1982 treatment note indicates the Veteran injured his leg after fell from a 5 YD loader, accordingly a physician excused him from performing strenuous exercise. Further, a June 1988 sick slip reflects a complaint of low back pain on the right side. VA treatment records reveal multiple reports of neck and low back pain since the Veteran’s April 1991 injury. In July 2014, a VA clinician stated that while he could not say with absolute certainty that the Veteran's current neck pain was a direct result of his April 1991 injury, these type of injuries could result or be supportive of such a pain state. In March 2015, the Veteran was afforded a VA examination in relation to his claimed neck and low back disabilities. On that occasion, the examiner noted the Veteran had a diagnosis of cervical and lumbar degenerative arthritis, cervical and lumbar intervertebral disc syndrome, cervical and lumbar degenerative disc disease, left cervical radiculopathy, left lumbar radiculopathy, and lumbar spinal stenosis. However, the examiner opined the Veteran's cervical spine condition was less likely than not proximately due to or the result of residuals of his April 1991 chin laceration. In support of this opinion, the examiner stated the lacerated chin on itself would not cause any neck condition. The examiner also noted that the available medical records did not reference any reports of neck pain at the time of the April 1991 incident and the STRs did not contain any report of neck pain. Further, the examiner indicated the Veteran had significant degenerative changes in the cervical spine which likely developed over a period of years and was likely due to the natural aging process and the Veteran’s stresses and strains on the neck in civilian life following service. Moreover, the examiner stated an isolated trauma as described in the record would not be capable of causing the Veteran’s current cervical spine condition. Similarly, the March 2015 VA examiner opined the Veteran's thoracolumbar spine condition was less likely than not proximately due to or the result of his service-connected left ankle sprain. The examiner did not address other theories of entitlement to service connection, notably direct service connection. As rationale for the proffered opinion, the examiner stated the Veteran has significant and extensive degenerative joint disease and degenerative disc disease along with spinal stenosis of the thoracolumbar spine; noting that the Veteran’s service-connected left ankle disability had not been chronically at a level of severity that would be capable of causing his current spinal condition. Moreover, the examiner stated the Veteran’s spinal changes had likely developed over a period of many years. In a January 2016 letter, the Veteran treating chiropractor noted a December 2015 MRI of the cervical spine demonstrated multilevel findings of degenerative disease with associated central canal and bilateral foraminal stenosis, as well as moderately severe central canal stenosis at C3-C4 with associated cord flattening and intrinsic signal elevation compatible with myelomalacia. The physician stated the degenerative findings revealed on the December 2015 MRI, notably the myelomalacia, were clearly the consequences of major trauma sustained to the spine. Further, the treating chiropractic opined the Veteran's cervical, low back, and left lower extremity disabilities were directly related to the traumas sustained in-service, notably the one in April 1991. In October 2017, the Veteran underwent an independent examination, performed by a Board-Certified Neurosurgeon. After a thorough review of the Veteran’s STRs, and VA and private treatment records, the private examiner opined it was more likely than not that the Veteran’s neck disability, low back disability, and radiculopathy of the left lower extremity were related to his active service. Specifically, the examiner opined that it was more likely than not that the Veteran’s cervical and lumbar spine conditions were related to falls and injuries sustained during active service, notably the April 1991 injury. The October 2017 private examiner provided an adequate rationale for the proffered opinions and addressed the conflicting evidence of record, including the March 2015 VA examination reports and opinions. The private examiner stated that while the Veteran’s April 1991 impact to the chin in itself may not translate energy to the cervical spine, the sudden forceful extension of the neck backwards coupled with the following sudden, severely forceful flexion of the cervical spine as the occiput of the skull hits the ground, will produce TBI and severe stress on the cervical spine and supportive structures. The examiner noted that this type of injury would indeed cause the remarkable deterioration seen in the Veteran’s spine. Further, the examiner stated that while the natural process of aging was involved in the Veteran’s spine conditions, the severity of his spine disabilities strongly supports a trauma or series of traumatic events initiated and accelerated the progressive deterioration. In this regard, the examiner indicated the Veteran had spondylosis in both the cervical and lumbar areas, which is a progressive disorder that is often precipitated by early trauma and progresses over years in combination with normal degenerative processes. Upon a review of the evidence of record and having resolved all reasonable doubts in favor of the Veteran, the Board finds service connection is warranted for the Veteran’s neck disability, low back disability, and radiculopathy of the left lower extremity. The Board acknowledged the March 2015 VA examiner’s opinions. However, these opinions are outweighed by overall evidence of record, notably the October 2017 independent examination report and opinions, as the private examiner provided an adequate rationale for the proffered opinions and addressed the conflicting evidence of record. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases). See also Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches”). In sum, the Board finds the evidence in favor and against the Veteran’s claims is at least in equipoise. As such, service connection is granted for the Veteran’s neck disability, low back disability, and radiculopathy of the left lower extremity. Entitlement to service connection for obstructive sleep apnea secondary to TBI and a neck disability The Veteran seeks service connection for obstructive sleep apnea, which he contends is the result of his TBI and neck disability. Initially, as discussed above, the Board has granted service connection for the Veteran’s TBI and neck disability. Further, the Board observes the medical evidence of record shows the Veteran has a current diagnosis of obstructive sleep apnea which has been treated with a CPAP. The Veteran underwent an independent examination in October 2017. After a thorough review of the Veteran’s STRs, and VA and private treatment records, the private examiner opined it was at least as likely as not that the Veteran’s sleep apnea developed secondary to or was aggravated beyond the course of its normal progression by his TBI. Further, the examiner noted that the Veteran had severe cervical spondylosis with spinal stenosis, which is known to cause, contribute to or aggravate obstructive sleep apnea. In support of these opinions, the examiner cited to medical literature indicating a causal relationship between TBI, cervical spine pathology, and sleep apnea. Upon a review of the evidence of record and having resolved all reasonable doubts in favor of the Veteran, the Board finds that service connection is warranted on a secondary basis for the Veteran’s sleep apnea. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to TBI and a neck and low back disability The Veteran seeks service connection for an acquired psychiatric disorder, which he contends is the result of his TBI and the chronic pain caused by his neck and low back disabilities. At the outset, the Board notes service connection has been granted herein for the Veteran’s TBI, neck disability, and low back disability. Additionally, VA treatment records reflect a current psychiatric disorder variously diagnosed as depression, anxiety disorder, adjustment disorder with mixed emotional features, mild memory disturbance, and adult attention deficit hyperactivity disorder. The Veteran was afforded a VA psychiatric examination in March 2015. The VA examiner noted the Veteran had a diagnosis of depressive disorder secondary to chronic neck pain, as well as alcohol use disorder in full remission. However, the examiner indicated he could not opine without resorting to mere speculation, as to whether the Veteran’s psychiatric disorder was at least as likely as not due to his April 1991 injury to his chin. In this regard, the VA examiner stated that while neck pain was reported as the major issue, it was “difficult to know for sure” whether the Veteran injured his cervical spine as result of his civilian profession. In October 2017, the Veteran underwent an independent neurological examination, performed by a Board Certified Neurosurgeon and Psychiatrist. After a thorough review of the Veteran’s STR, and VA and private medical records, the private examiner opined the Veteran’s depression was at least as likely as not proximately due to his chronic pain, which was the result of the Veteran’s in-service injuries to the spine and TBI. Specifically, the examiner stated the Veteran’s April 1991 injury caused a TBI and precipitated achromic pain syndrome due to cervical radiculopathy, which combined to produce the Veteran’s psychiatric disorder. As rationale for his opinion, the private examiner noted that the association of chronic relapsing, recurrent chronic pain, and depression is well established and universally accepted. Further, the examiner cited to medical literature, which indicates that TBI is a disease process that may cause and/or accelerate medical and mental health morbidity long after the initial injury. Notably, a May 2017 article published on a peer-reviewed medical journal that documented the long-term effects of even mild traumatic brain injuries, which include chronic and recurrent depression. Based on a review of the evidence of record and having resolved all reasonable doubts in favor of the Veteran, the Board finds that service connection is warranted on a secondary basis for the Veteran’s acquired psychiatric disorder. As to the March 2015 VA examiner’s opinion, the Board finds it to be of limited probative value. The VA examiner appears to have applied the wrong evidentiary standard, as he stated it “difficult to know for sure” whether the Veteran’s psychiatric disorder was related to service or his civil profession. In sum, the Board finds the evidence in favor and against the Veteran’s claim is at least in equipoise. As such, service connection is granted for the Veteran’s acquired psychiatric disorder. Rating Restoration The Veteran contends that he is entitled to a restoration of the 30 percent disability rating for his service-connected scars, residual of a chin laceration, that was reduced to 10 percent in a July 2016 rating decision. A previous AOJ final rating decision is binding and will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. §§ 3.104(a), 3.105(a). CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). There is a three-pronged test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions existent at that time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. See Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). Procedurally, where a reduction in the evaluation of a service-connected disability is considered warranted, and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Final rating action will reduce or discontinue the compensation effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). At the outset, the Board finds the procedural requirements were met in this case. See 38 C.F.R. § 3.105(e), (i). The AOJ satisfied the procedural requirements for a rating reduction by issuing the Veteran an April 2015 rating decision and notice letter. Thereafter, a July 2016 rating decision effectuated the reduction and assigned an effective date of October 1, 2016, which is consistent with the 60-day period required under 38 C.F.R § 3.105(e), (i). Next, the Board must determine whether the rating reduction was proper based on the evidence of record. In an April 2015 rating decision, the AOJ found a CUE in the July 2013 rating decision. The AOJ essentially found that the July 2013 rating decision awarded 30 percent rating based on a scar of 24 centimeters (cm) in length when the evidence reflected a scar of 24 millimeters (mm) (2.4 cm) in length. Having determined that CUE was present in the July 2013 rating decision, the remedy employed by the AOJ to correct such error was a rating reduction. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 Where there is a question as to which of two ratings shall 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. The Veteran’s service-connected scars, residual of a chin laceration, is rated under the provisions of 38 C.F.R. § 4.118, Diagnostic Code 7800. The Board notes that some of the criteria for rating skin disorders were revised effective August 13, 2018. 83 Fed. Reg. 32,592 (July 13, 2018); however, Diagnostic Code 7800 was not revised. Diagnostic Code 7800 provides ratings for disfigurement of the head, face, or neck. A 10 percent rating is assigned for a scar with one characteristic of disfigurement (outlined below); a 30 percent rating is assigned with 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 two or three characteristics of disfigurement; a 50 percent rating is assigned for disfigurement with 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 four or five characteristics of disfigurement. An 80 percent rating is assigned for 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 six or more characteristics of disfigurement. Note (1) to Diagnostic Code 7800 provides that the eight characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118 are (1) Scar is 5 or more inches (13 or more cm.) in length; (2) Scar is at least one-quarter inch (0.6 cm.) wide at the widest part; (3) Surface contour of scar is elevated or depressed on palpation; (4) Scar is adherent to underlying tissue; (5) Skin is hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) Skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) Underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.), and; (8) Skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Note (4) to Diagnostic Code 7800 directs the separate evaluation of 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, under the appropriate diagnostic code(s) and application of §4.25 to combine the evaluation(s) with the evaluation assigned under Diagnostic Code 7800. Diagnostic Code 7804 provides a 10 percent rating for 1 or 2 scars that are unstable or painful. A 20 percent rating is warranted for 3 to 4 scars that are unstable or painful. A 30 percent disability rating assigned for 5 or more scars that are unstable or painful. Note (1) states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7804. After reviewing the evidence of record at the time of the July 2013 rating decision, the Board finds the grant of a 30 percent rating for scars of the face was clearly and unmistakably erroneous. In assigning a 30 percent rating for the Veteran’s scars, residual of a chin laceration, the AOJ relied mainly on a July 2013 VA scars examination, notably the recorded length and width of the Veteran’s chin scar. The July 2013 VA examiner recorded the length and width of the Veteran’s scar as 24 x 0.2 cm. Notwithstanding, the examiner had previously described the Veteran’s scar as a linear scar in the center of the chin, 24 mm in length, and without associated erythema tenderness or disfigurement (emphasis added). See July 2013 VA examination report at page 26. Further, the examiner noted the Veteran did not exhibit gross distortion or asymmetry of facial features, visible or palpable tissue loss, scar adherent to underlying tissue, skin hypopigmentation or hyperpigmentation, abnormal skin texture, missing underlying soft tissue, or indurated and inflexible skin. Color photographs of the Veteran’s scar were provided by the examiner and associated with the record. The Board observes a March 2015 VA examiner reviewed the July 2013 VA examination report and related photographs. The March 2015 VA examiner stated the photographs submitted with the July 2013 examination are consistent with a scar length of 2.4 cm. Further, neither the Veteran nor his representative contends that the Veteran’s scar has or has had a length of 13 cm or more. In light of the foregoing, the Board finds that due to a typographical error on the July 2013 VA scars examination report, the correct facts, as they were known at the time, were not before the AOJ at the time of its July 2013 rating decision. This error is undebatable and of the sort which, had it not been made, would have manifestly changed the rating assigned in July 2013 for the Veteran’s scar, residuals of a chin laceration. The Board considered whether the evidence of record at the time of the July 2013 rating decision supported an additional, separate compensable evaluation under Diagnostic Code 7804. However, such evaluation is not warranted, as the evidence of record did not demonstrate the Veteran’s chin scar was painful or unstable. In sum, the Board finds the July 2013 grant of a 30 percent rating for scars, residuals of a chin laceration, was clearly and unmistakably erroneous. Accordingly, the rating reduction to 10 percent effective October 1, 2016, was proper; and as such, a restoration of the 30 percent rating is not warranted. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Martinez, Associate Counsel