Citation Nr: 18150363 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 13-13 999 DATE: November 15, 2018 ORDER Entitlement to service connection for lumbar spine strain is granted. A 10 percent rating is granted for the Veteran’s right ring finger scar from May 6, 2013, subject to the statutes and regulations governing payment of monetary awards; a compensable rating (i.e., a rating higher than 0 percent) prior to May 6, 2013, and in excess of 10 percent from that date, are denied. REMANDED Entitlement to service connection for dermatitis of the hands is remanded. Entitlement to service connection for a rash of the underarms is remanded. Entitlement to service connection for a bilateral hip disability is remanded. Entitlement to service connection for a left calf muscle strain is remanded. Entitlement to a compensable initial rating for a right calf muscle strain is remanded. FINDINGS OF FACT 1. It is as likely as not the Veteran’s lumbar strain was incurred in service and that he continues to have consequent disability. 2. Prior to May 6, 2013, the Veteran’s right ring finger scar was 1.5 cm in length and superficial; it is not shown to have been unstable or painful, to have been deep and nonlinear, to have involved an area of 144 square inches, or to have caused functional limitation. 3. Since May 6, 2013, the Veteran’s right ring finger scar is shown to have been superficial and tender to palpation; the scar is not shown to be unstable, to be deep and nonlinear, or to cause functional limitation. CONCLUSIONS OF LAW 1. Service connection for lumbar spine strain is warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The Veteran’s right ring finger scar warrants staged ratings of 0 percent prior to May 6, 2013, and (an increased) 10 percent rating (but no higher) from that date onwards. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.118, Diagnostic Codes (Codes) 7800-7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from April 1986 to December 1994, from October 2007 to November 2007, and from December 2009 to February 2010, with additional service in the National Guard, so presumably on active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions in August 2011 and March 2012. The Board sees the Veteran was formerly represented by the Maine Department of Veterans Services. However, in June 2013 correspondence, he revoked that organization’s power of attorney; during his subsequent June 2013 Board hearing (before the undersigned), he confirmed his desire to proceed on his own behalf, so pro se. Legal Criteria, Factual Background, and Analysis Service connection for a lumbar strain is granted. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38. C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury in service. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran contends that his current low back disability is related to an injury he sustained in 2007 or 2008 while performing sit-ups during an annual National Guard physical fitness test. See May 2013 VA Form 9; See also June 2013 Board hearing transcript. He specifically testified that he felt a pop in his back during the test. The Veteran’s service records reflect that he was in fact on active duty from October 12, 2007 to November 13, 2007. A January 2, 2008 private chiropractor record notes complaints of low back pain, “right where it bends,” for one month. Private chiropractic records show that the Veteran continued to report low back soreness in March, April, and September 2008, as well as in March and October 2010. A January 14, 2008, VA primary care record notes a complaint of back strain sustained doing sit-ups during a November 2007 physical fitness test. The Veteran reported that he had four to five weeks of low back pain and that he sought private chiropractic treatment. The assessment was “low back pain/strain: concur with [chiropractor].” On July 2011 VA general medical examination, the Veteran reported that his back pain began in 2007 or 2008 “after he did sit-ups” during a fitness test; he reported seeing a local doctor for three or four months thereafter for pain. Following review of the record and examination of the Veteran, the examiner diagnosed lumbar strain and mild degenerative joint disease (DJD) (shown on x-ray). The examiner opined that the lumbar strain is as likely as not related to complaints in January 2008, but that the findings of DJD and an “old compression fracture endplate T12 and L5” are not due to service as “Doing sit-ups would not cause these findings.” On his May 2013 VA Form 9, the Veteran reported that he “felt excruciating pain in [his] lower back” while performing sit-ups during an annual Air Guard test. He reported that he contacted the base clinic, which did not have a doctor on staff; he was told to see a local doctor. He reported that he made an appointment as soon as possible. The evidence summarized above reflects that the Veteran has a current low back disability. Based on the Veteran’s report of injury in November 2007, which the Board finds to be competent and credible, and the contemporaneous clinical records of treatment for low back pain in January 2008 relating his back pain to an injury in November 2007, it may reasonably be conceded that he sustained a back injury in service. Finally, a July 2011 VA medical opinion links his current lumbar strain to treatment for a low back injury in January 2008. All requirements for substantiating a service connection claim are met; service connection for a lumbar strain is warranted. An (increased) 10 percent (but not higher) rating for a right ring finger scar is granted effective May 6, 2013; a compensable rating prior to May 6, 2013, is denied. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where, as here, the appeal is from the initial rating assigned with an award of service connection, the severity of the disability during the entire period from the award of service connection to the present, and the possibility of “staged” ratings for distinct periods of time when varying degrees of disability were shown, must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. 4.3. Scars are rated under Codes 7800-05. As Code 7800 applies only to scars of the head, face, or neck, it does not apply herein. Code 7805 provides that disabling effects not considered in Codes 7800-04 should be rated under an appropriate diagnostic code by analogy. As nothing in the clinical evidence suggests that the Veteran’s right ring finger scar exhibits any disabling effects not considered by Codes 7800-04, Code 7805 also does not apply. Thus, the Veteran’s right ring finger scar must be rated under Codes 7801-04. Under Code 7801, burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear must involve an area or areas of 39 square centimeters or more to warrant a compensable rating. Under Code 7802, burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear must involve an area or areas of 144 square inches (919 square centimeters) or greater to warrant a compensable rating. Under Code 7804, a compensable rating requires that the scar be unstable or painful. On July 2011 VA examination, the right ring finger showed normal dexterity and strength; there was no locking, giving way, redness, swelling, dislocation, lack of endurance, or pain. The examiner noted “a very small, barely visible scar in the webspace between the ring and little fingers which can be seem primarily on the palmar surface; scar is a total of 1.5 cm x 0.1 cm and is pale, nontender with no adherence, normal texture. No skin breakdown, flat, no underlying tissue loss. No inflammation. No disfigurement, no limitation of function related to the scar. This is not a clinically significant scar visibly or functionally.” In his May 6, 2013 VA Form 9 (formal appeal), the Veteran reported that his scar “is tender to the touch.” At his June 2013 Board hearing, the Veteran denied that his scar was painful; instead, he reported that the area around the scar “has gone numb.” On May 31, 2018 VA scar examination, the examiner noted a 1 cm linear laceration scar on the right ring finger that is tender to palpation; the scar was not unstable with frequent loss of covering of skin over the scar. The examiner opined that the scar does not impact the Veteran’s ability to work. Based on longitudinal review of the evidence, the Board finds that a 10 percent rating is warranted from May 6, 2013, when the record first shows that the right ring finger scar was tender (painful). Prior to May 6, 2013, the evidence does not show that the above-listed criteria for a compensable rating were met (or approximated). Notably, on July 2011 VA examination, the scar was less than 39 square centimeters in area, the Veteran denied that the scar was painful, and the examiner described it as “not a clinically significant scar visibly or functionally.” Accordingly, a compensable rating prior to May 6, 2013, is denied. The analysis proceeds to whether a rating in excess of 10 percent is warranted for any period of time from May 6, 2013. The record does not show that he has 3 or more right ring finger scars, that the scar is both unstable and painful, deep and nonlinear, covers an area of 144 square inches or greater, or causes functional limitation. Accordingly, a rating in excess of 10 percent from May 6, 2013, for the Veteran’s right ring finger scar is denied. REASONS FOR REMAND Entitlement to service connection for dermatitis of the hands and a rash of the underarms is remanded. The Veteran contends that he has intermittent (5-6 times per year) dermatitis of his hands and rashes of his underarms that manifested in service and have persisted since. See July 2011 VA examination report; see also February 2012 lay statements from the Veteran, his spouse, and his daughter. Service treatment records (STRs) show several assessments of contact dermatitis of the hands following contact with strong cleaning solvents, and assessments of tinea corporis and eczema pertaining to underarm rashes. See April 29, 1986, February 11, 1987, October 27, 1987, April 13, 1989, and October 18, 1989 STRs. On July 2011 VA examination, there was no evidence of a rash on the hands or arms; a nexus opinion was not provided. [The claims were subsequently denied on the basis that no disability was shown.] Following the examination, the Veteran submitted statements regarding the intermittent nature of his claimed skin disabilities. Additionally, in March 2013, he submitted photographs which show a rash on the forearms and upper right hand. As the evidence suggests that the Veteran does indeed experience an intermittent skin condition of the hands and arms, a new examination to determine the likely etiology of such disabilities is necessary. The United States Court of Appeals for Veterans Claims (CAVC) has held that to the extent possible, VA should schedule an examination for a condition that has cyclical or random manifestations during an active stage of the disease to best determine its severity. Ardison v. Brown, 6 Vet. App. 405, 408 (1994). Therefore, the case must be remanded in order to attempt to schedule the Veteran for an examination while he is experiencing a flare-up (or give him an opportunity to have an outbreak evaluated at a VA outpatient clinic) and then have a qualified VA examiner evaluate the Veteran’s skin condition after considering the documentary evidence of record. Entitlement to service connection for a bilateral hip disability is remanded. Review of the record suggests that pertinent treatment records remain outstanding. VA treatment records reflect that the Veteran received hip treatment through the VA ARCH Project (now Veteran’s Choice Program). See May 16, 2012 and August 22, 2013 VA treatment records. Records of treatment (visits every two to three months) from Dr. Michaud through January 2014 are of record. The most recent record notes that the Veteran was scheduled for reassessment and reevaluation in three months; however, records from subsequent visits remain outstanding. As the records are pertinent to the claim, they must be obtained and considered. Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). [The Board notes that a January 2011 negative nexus opinion (regarding both direct and secondary service connection theories) is of record. If updated treatment records are associated to the claims file, an addendum opinion which considers the new evidence will be necessary.] Entitlement to service connection for a left calf muscle strain is remanded. Initially, the Board notes that the record suggests that pertinent treatment records remain outstanding. In November 2010, VA approved the Veteran for outpatient physical therapy for complaints, and a clinical assessment, of bilateral calf strains. See November 9, 2010 VA physical therapy consult record. A December 2, 2010 County Physical Therapy initial evaluation report is of record, along with a January 13, 2011 discharge summary report. Records of the 12 therapy sessions are not associated with the record, and should be secured on remand as they are pertinent to the claim. Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). [The Board notes that the December 2, 2010 evaluation report notes “signs and symptoms, which may be consistent with bilateral calf tightness, as he presents with a significant dorsiflexion ROM loss.”] In July 2011, the Veteran underwent a VA examination to determine the nature and etiology of his claimed left calf disability. The examiner opined that the Veteran’s left calf was clinically normal except for his subjective tightness when walking up hills. However, the examiner neither discussed, nor reconciled, that finding with the November 2010 VA assessment of gastrocnemius muscle strain or the December 2010 notation of “significant” loss of range of motion. Consequently, the Board is unable to determine whether the examiner concluded that the Veteran does not have a current diagnosis of a left calf disability (but may have had such diagnosis during the pendency of this claim) or has never had a valid diagnosis of a left calf disability. Development to secure an adequate medical opinion that resolves the medical questions remaining is necessary. Entitlement to a compensable initial rating for a right calf muscle strain is remanded. As noted above, records of private physical therapy for bilateral calf strains in late 2010 and early 2011 appear outstanding and should be obtained on remand, as they are pertinent (and perhaps critical) to this claim for increase. Additionally, the Board notes that the most recent examination to assess the severity of the Veteran’s right calf disability was more than 7 years ago (July 2011). In his May 2013 VA Form 9, the Veteran suggested that his right calf disability has worsened, as he reported pain, severe weakness, and restricted movement and coordination, all symptoms he related as similar in severity to his initial injury. In light of the length of intervening time period since the Veteran was last examined by VA and his report suggesting worsening, a contemporaneous examination to assess the severity of his right calf disability is necessary. Snuffer v. Gober, 10 Vet. App. 400 (1997). These remaining matters are REMANDED for the following action: 1. Secure for the record all updated records of VA evaluations and treatment the Veteran has received for his claimed disabilities since August 2018 (when the most recent VA treatment records associated with the record are dated). Ask the Veteran to provide identifying information regarding all private evaluations or treatment he has received for his claimed disabilities, and to submit authorizations for VA to secure for the record complete outstanding clinical records from all providers identified, including specifically physical therapy records from County Physical Therapy from late 2010 – early 2011 (calves), and treatment records from Dr. Michaud since January 2014 (hips). Obtain those records. 2. Thereafter, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any skin disorder(s) of the hands and the underarms. [To the extent possible, it would be most helpful to schedule the Veteran for a VA examination during a flare-up of his reported skin condition. When providing notification of the date of the examination, the Veteran must be advised that, should his symptoms be unobservable on the date of his scheduled examination, he should inform VA of that fact and reschedule another examination on another date.] The Veteran’s entire record (to include this remand and the photographs received in March 2013) must be reviewed by the examiner in conjunction with the examination. Based on examination, interview of the Veteran, and review of any other medical evidence (including photographs), the examiner should provide opinions that respond to the following: (a) Identify (by diagnosis) each hand and arm skin disability entity found (or shown by the record during the pendency of this claim). (b) Identify the likely etiology for each hand and arm skin disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that the disability was incurred or aggravated during the Veteran’s active service? The examiner must include rationale with all opinions. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of his claimed left calf disability, and to ascertain the severity of his service-connected right calf strain. The Veteran’s entire record (to include this remand) must be reviewed by the examiner in conjunction with the examination. Based on examination, interview of the Veteran, and review of the record, the examiner should provide opinions that respond to the following: (a) Regarding the Veteran’s left calf, identify (by diagnosis) each disability entity found (or shown by the record during the pendency of this claim). If a left calf disability is not diagnosed, please reconcile such a finding with the November 2010 assessment of left calf strain and the December 2010 notation of significant loss of range of motion. (b) Identify the likely etiology for any left calf disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that the disability was incurred or aggravated during the Veteran’s active service? (c) Regarding the service-connected right calf strain, please describe the muscle impairment in light of any complaints and clinical findings as they relate to the cardinal signs and symptoms of muscle disability: loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. Further, the examiner should, to the extent possible, characterize the severity of the muscle injury as slight, moderate, moderately severe, or severe. The examiner must include rationale with all opinions. 4. Return the record to the examiner who conducted the July 2011 VA general medical examination for an addendum opinion that addresses whether or not the Veteran’s bilateral hip disability is related to service, or caused or aggravated by a service-connected disability. [If the examiner is unavailable or cannot provide the opinion sought, forward the record to another appropriate medical provider for the opinion.] The entire record (to include this remand, the July 2011 examination report, and any newly obtained records) must be reviewed by the examiner. Based on a review of the record, the examiner should provide an opinion that responds to the following: (a) Is it at least as likely as not (a 50% or better probability) that the Veteran’s hip disabilities were incurred or aggravated during the Veteran’s active service? (b) Is it at least as likely as not (a 50% or better probability) that the Veteran’s hip disabilities have been caused or aggravated by a service-connected disability? [The opinion must address aggravation.] The examiner must include rationale with all opinions, citing to supporting factual data and/or medical literature, as deemed appropriate. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Dupont, Associate Counsel