Citation Nr: 18150475 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-45 944 DATE: November 15, 2018 ORDER Service connection for facial trauma, including an indentation in the roof of the mouth and residuals of nasal injury is denied. REMANDED Entitlement to a compensable rating for laceration of the flexor tendon of the right 5th toe is remanded. FINDINGS OF FACT 1. The Veteran currently exhibits a 4-millimeter-wide by 4-millimeter-deep indentation or hole in the roof of his mouth above and behind the right front tooth. 2. The injury to the roof of the mouth that is alleged to have gone through the mouth into the nose is not credibly related to a disease, injury, or event shown in service, including the lip sutures placed in October 1979. CONCLUSION OF LAW The criteria to establish service connection for facial trauma are not met. 38 U.S.C. §§ 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from March 1977 to March 1980. A brief procedural history will be beneficial to recount here in clarifying the nature of this appeal regarding the rating of this Veteran’s service-connected right foot disability. The Veteran filed a claim of service connection for right foot injury, specifically a severed tendon of the little toe, in December 2012. Service connection was granted and assigned a zero percent rating analogous to a muscle group injury by rating decision in March 2013. In November 2014, the Veteran then filed the current claim for an increased rating for residuals of the injury to the right 5th toe, and this appeal was perfected to the Board in September 2016. Prior to the Board’s adjudication, however, in July 2017 a VA Regional Office granted a rating of 10 percent for the right 5th toe injury based on a painful scar, changing the diagnostic code (DC) under which the Veteran was rated from a muscle group injury (DC 5312) to a skin disability (DC 7804). The Board finds this to, in fact constitute a separate rating for the scar, rather than a resolution to the perfected appeal for an increased rating for the right 5th toe tendon laceration based on the muscle group injury. See, e.g., Esteban v. Brown, 6 Vet. App. 259 (1994) (finding separate rating for scars to be appropriate so long as it would not violate the prohibition against evaluating the same disability under various diagnoses). The United States Court of Appeals for Veterans Claims (Court) has held that a claimant is generally presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than the maximum benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, although an increase based on the right 5th toe scar has been granted, the perfected appeal of the right 5th toe muscle group injury remains in appellate status, particularly as the Veteran is arguing functional loss including weakness of the toe and loss of balance, which would not be contemplated by the scar rating. See, e.g., Private medical opinion, May 2016. Notably, however, as the Veteran did not disagree with the rating assigned for the right 5th toe scar assigned in the July 2017 rating decision, that issue is not currently before the Board. Service Connection Service connection generally requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a causal relationship, or nexus, between the claimed in-service event, injury, or disease and the current disability. 38 C.F.R. § 3.303; see Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Service connection for residuals of facial trauma In November 2014, the Veteran filed a claim seeking service connection for facial injury and scarring. He further stated that this involved residual scarring of nasal passages and has resulted in difficulty breathing, stemming from an injury occurring with pliers at Fort Leonard Wood. Veteran’s Supplemental Claim for Compensation, November 2014. In a June 2017 VA examination, he stated that a pair of needle-nose pliers slipped and went through the roof of his mouth and through his nose. He asserts that a dentist then pulled the pliers out of his mouth. While the Veteran is competent to describe such an injury as he would be able to observe the pliers and their impact with his own senses, the Board does not find this history to be credible when compared to the contemporaneous medical record. On October 1, 1979, the Veteran’s service dental records reflect an examination of a lip laceration with anesthetic and 5 silk sutures given. On October 4, the sutures were removed and the lip was noted to be healing normally. An annual oral health examination, including x-rays was then conducted on November 30, 1979. On none of these occasions is any mention made of a puncture wound to the roof of the Veteran’s mouth, nor pliers or other foreign body removed, or any other oral injury beyond the lacerated lip. There is no commensurate finding noted during the x-rays obtained one month later, or noted during the annual oral health examination in November 1979. The Board also finds that the type of injury described by the Veteran would, at the very least, be expected to be mentioned in a dental treatment notation if pliers had been physically removed by the dentist that had penetrated through the roof of the Veteran’s mouth into his nose. It also might be expected that the Veteran would seek treatment for such condition in an emergency department, as opposed to a dental visit. In any event, the contemporaneous service treatment records do not reflect the observation or treatment for the type of wound described by the Veteran at any time. Upon separation examination in December 1979, only two months after the alleged injury, the Veteran’s mouth, face, nose, and sinuses were all evaluated as clinically normal. The Veteran also explicitly denied ever having any severe tooth or gum trouble, or any head injury, and denied every being treated by any practitioner for anything other than minor illnesses in the last 5 years. The Veteran did not report any incident with pliers, any penetrating wound, or any extraction of a foreign object from his mouth and nose, or any injury like that described here on the Report of Medical History Form he completed at the time of his separation examination in December 1979. The Board finds it unlikely that the type of injury described by the Veteran, occurring only two months prior to this separation examination would not be mentioned by the Veteran in some way. Over all, the Board finds competent and credible evidence of an in-service injury to the lip requiring sutures in October 1979, but no such evidence of a penetrating wound to the roof of the mouth into the nose. Therefore, although the May 2016 opinion by the Veteran’s private physician found that the Veteran’s nasal symptoms of a deviated septum, irritated nasomucosa, and residual symptoms of nose bleeds, nasal congestion and recurrent sinusitis were consistent with nasal trauma, the Board does not find sufficient evidence of the plier puncture injury upon which this opinion is based having occurred during the Veteran’s service. Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Additionally, although the Veteran was shown to have a lip injury requiring sutures (also known as stitches) during service in October 1979, the Veteran does not have a lip disability including scarring of the lip present during the period of this appeal. A June 2017 VA scars examination found no scars present on the Veteran’s face. In sum, the Board has considered the entire record with respect to the Veteran’s claim of entitlement to service connection for residuals of facial trauma including lip, nose, and mouth injuries, but does not find that the elements required to establish service connection are met. Specifically, given the competent and credible evidence of record, no current lip disability is shown, no in-service nasal injury is shown, and no relationship to service is shown for the Veteran’s currently diagnosed hole or indentation on the roof of his mouth. As such, service connection for the claimed facial trauma is not warranted. 38 C.F.R. § 3.303. REASONS FOR REMAND Entitlement to a compensable rating for residuals of a right foot injury with laceration of the flexor tendon of the 5th toe is remanded. In a May 2016 private medical opinion, the Veteran’s physician asserted that the service-connected right 5th toe flexor tendon disruption was causing weakness with balance issues, increasing falls, and other functional impairments. This would constitute an increase in severity since the tendon impairment was last examined by VA, and the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of the service-connected disability. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination of the current severity of his right 5th toe flexor tendon laceration residuals, separate and apart from the separately service-connected scar of the right 5th toe. The examiner should test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to flexor tendon impairment residuals alone and discuss the effect of the Veteran’s right 5th toe disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. After completing any other development deemed necessary, readjudicate the claims on appeal. If a matter is not resolved to the Veteran’s satisfaction furnish him and his representative a supplemental statement of the case, and provide an opportunity to respond before the case is returned to the Board. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDonald