Citation Nr: 18156429 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 16-44 521 DATE: December 10, 2018 ORDER Entitlement to a rating in excess of 10 percent for disfiguring scar, status post laceration to forehead is denied. Entitlement to a rating in excess of 10 percent for painful scar, status post laceration to forehead is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for gastroenteritis is remanded. Entitlement to service connection for traumatic brain injury (TBI) is remanded. Entitlement to service connection for carpal tunnel is remanded. Entitlement to service connection for post-traumatic stress disorder (PTSD) is remanded. Entitlement to service connection for lumbar spinal stenosis to include claims for thoracic condition and arthralgia is remanded. Entitlement to service connection for syphilis is remanded. Entitlement to service connection for asthma is remanded. Entitlement to service connection for walking pneumonia is remanded. Entitlement to a rating in excess of 30 percent for migraine headaches is remanded. Entitlement to a rating in excess of 50 percent for an acquired psychiatric disability to include depressive disorder NOS, panic disorder without agoraphobia is remanded. Entitlement to a total disability rating due to unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s forehead scar is painful but not unstable, and its surface contour is depressed on palpation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for disfiguring scar, status post laceration to forehead have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. § 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7800 (2017). 2. The criteria for a rating in excess of 10 percent for painful scar, status post laceration to forehead have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. § 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7804 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from October 1971 to April 1974. This matter came before the Board of Veterans Appeals (Board) on appeal from April 2013 and May 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating 1. Entitlement to a rating in excess of 10 percent for disfiguring scar, status post laceration to forehead 2. Entitlement to a rating in excess of 10 percent for painful scar, status post laceration to forehead The Veteran contends that he is entitled to higher ratings for his forehead scar, which is rated at 10 percent under DC 7800, which rated disfiguring scars, and has a separate 10 percent rating under DC 7804, which rates painful or unstable scars. As the Veteran’s forehead scar has one characteristic of disfigurement but no tissue loss or gross distortion of features and is painful but not unstable, the Board concludes that a rating in excess of 10 percent is not warranted under either DC 7800 or DC 7804. 38 C.F.R. 38 C.F.R. § 4.118 DC 7800, 7804. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 39 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under DC 7800, a 10 percent rating is granted for scars with one characteristic of disfigurement. A 30 percent rating is warranted for scars 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; with two or three characteristics of disfigurement. A 50 percent rating is warranted for scars 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; with four or five characteristics of disfigurement. An 80 percent rating, the highest available under the DC, is warranted for scars with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. 38 C.F.R. § 4.118 DC 7800. The 8 characteristics of disfigurement under 38 C.F.R. § 4.118 are: 1) scar 5 or more inches (13 or more cm.) in length; 2) scar at least one-quarter inch (0.6 cm.) wide at widest part; 3) surface contour of scar elevated or depressed on palpation; 4) scar adherent to underlying tissue; 5) skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); 6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); 7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); 8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Under DC 7804, a 10 percent rating is assigned for one or two scars which are unstable or painful. A 20 percent rating is assigned for three or four scars that are unstable or painful and a 30 percent rating is warranted for five or more scars that are unstable or painful. This is the highest rating available under the DC. In addition, if one or more scars are both painful and unstable, 10 percent will be added to the evaluation based on the total number or unstable or painful scars. 38 C.F.R. 4.118 DC 7804, Note (2). A March 2013 VA examination found that the Veteran had one painful scar on his forehead, noting the Veteran’s reports of pain in the scar area. The examiner found that the scar was not unstable and not due to burns. Regarding the characteristics of disfigurement, the examiner found that the scar was 1cm long and 0.1 cm wide, that the surface contour was depressed on palpation but not elevated, and that the scar was not adherent to underlying tissue. The examiner also found that there was no underlying soft tissue missing and that there was no abnormal pigmentation or texture, induration or inflexibility. The examiner also found that there was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. Finally, the examiner found that there was no functional limitation associated with the forehead scar. The Board finds that the VA examination is adequate for appellate review. There is no evidence that the examiner was not competent or credible, and as the report is based on in-person examination and the examiner’s observations, the Board finds it entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302–05 (2008). The Veteran’s forehead scar has been assigned two separate10 percent ratings under DC 7800 and DC 7804 for the entire period on appeal. Again, to warrant a rating of 30 percent under DC 7800, the evidence would need to show that the Veteran’s scar had 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. The Board finds that the medical evidence of record indicates that the Veteran’s scar does not involve either visible or palpable tissue loss or gross distortion or asymmetry of his facial features. The evidence also indicates that the scar has only one characteristic of disfigurement: surface contour depressed on palpation. Therefore, a rating above 10 percent is not warranted under DC 7800. As noted above, the Veteran also has a separate 10 percent rating under DC 7804. To warrant a 20 percent rating under the DC, the evidence would need to show that the Veteran has three or four unstable or painful scars or that the left foot scar was both panful and unstable. As the Veteran has only one forehead scar that is painful but not unstable, a rating above 10 percent under DC 7804 is not warranted. The Board has also considered rating the Veteran’s left foot scar under an alternate DC. However, as the medical evidence indicates that the scar is not caused by burns, does not have an area of 144 square inches or greater and does not have any other associated functional loss, rating under an alternative DC is not warranted. 38 C.F.R. § 4.118, DC 7801, 7802, 7805. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against a rating above 10 percent under both DC 7800 and DC 7804 for the Veteran’s forehead scar. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea 2. Entitlement to service connection for gastroenteritis 3. Entitlement to service connection for traumatic brain injury (TBI) 4. Entitlement to service connection for carpal tunnel 5. Entitlement to service connection for post-traumatic stress disorder (PTSD) 6. Entitlement to service connection for lumbar spinal stenosis to include claims for thoracic condition and arthralgia The AOJ last adjudicated all issues currently on remand in two August 2016 SOCs. Both SOCs note that the Veteran’s service treatment records had not been obtained. In the September 2016 substantive appeal, the Veteran’s attorney reported that his office had obtained the Veteran’s service treatment records from the Records Management Center and provided those records along with the substantive appeal. A waiver of AOJ review was not submitted with those records. Accordingly, remand is necessary for the AOJ to consider the new evidence of record and issue an SSOC. 7. Entitlement to service connection for syphilis In addition to remand for the AOJ to consider the new evidence of record and issue an SSOC, the Board finds that additional development is required for this issue. The March 2013 VA examiner found that the Veteran did not have an active case of syphilis, noting that the Veteran did not report any current residuals or symptoms and current testing was negative for syphilis. However, since the VA examination July 2015 VA treatment records document a positive test for syphilis, though the provider noted that it was unclear whether treatment was needed based upon the results. A new VA examination is therefore required. 8. Entitlement to service connection for asthma 9. Entitlement to service connection for walking pneumonia In addition to remand for the AOJ to consider the new evidence of record and issue an SSOC, the Board finds that additional development is required for these issues. The Board finds that the evidence of record is unclear regarding the nature of the Veteran’s current respiratory disabilities. The Veteran’s service treatment records contain a report of hospitalization for pneumonia in 1973. VA treatment records are silent for a diagnosis of asthma, but the Board notes that April 2014 VA treatment records note symptoms of asthma and June 2016 VA treatment records indicate that he is prescribed an albuterol inhaler. VA treatment records are also silent for a current diagnosis of pneumonia, but September 2015 VA treatment records include pulmonary function test results and indicate a diagnosis of mild obstructive lung disorder. A VA examination is therefore required to clarify the nature and etiology of the Veteran’s current respiratory disabilities. 10. Entitlement to a rating in excess of 30 percent for migraine headaches A VA headache examination was provided in March 2013. The examiner noted that the Veteran reported headaches, and noted pain worse with physical activity. Regarding associated non-headache symptoms, the examiner only noted sensory changes and did not indicate the nature of those changes. A subsequent December 2016 private vocational opinion noted that the Veteran had to go into a dark room during headaches, but the March 2013 examiner did not note sensitivity to light as a current symptom. The Board therefore finds that the evidence of record suggests the Veteran’s migraines have increased in severity since the most recent VA examination in 2013 in that there are additional non-headache symptoms. Therefore, the Veteran should be afforded a new examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The Board also notes that the examiner found that the Veteran had prostrating attacks more frequently than once per month and said that they were not “very frequent”, but did not indicate how frequently the Veteran’s headaches occur. Clarification of the frequency of the Veteran’s prostrating attacks should also be obtained upon remand. 11. Entitlement to a rating in excess of 50 percent for an acquired psychiatric disability to include depressive disorder NOS, panic disorder without agoraphobia The December 2016 private vocational opinion noted that the Veteran had recently begun taking Wellbutrin and that he had an appointment to begin individual counseling at the VA. The Board’s review indicates that the most recent VA treatment records of record date to July 2016. As the record indicates that there are outstanding VA treatment records pertinent to the issue on appeal, remand is required to obtain those records. The December 2016 private vocational opinion also noted the Veteran’s reports that he has panic attacks a few times per week. The March 2013 examiner found panic attacks occurring weekly or less often. As the evidence of record suggests his psychiatric disability has increased in severity since the most recent VA examination in 2013, the Board finds that the Veteran should be afforded a new examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 12. Entitlement to a total disability rating due to unemployability The issue of entitlement to TDIU must also be remanded as it is inextricably intertwined with the issue of increased ratings for his migraine and psychiatric disabilities as well as with the issues of service connection for the Veteran’s other claimed disabilities. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when the adjudication of one issue could have “significant impact” on the other issue). The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from July 2016 to the Present. 2. After the above development has been completed, schedule the Veteran for an appropriate VA examination, to determine the nature and etiology of any current syphilis disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current syphilis disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. Attention is requested to the syphilis test results in the July 2015 VA treatment record. 3. After the development in (1) above has been completed, schedule the Veteran for an appropriate VA examination, to determine the nature and etiology of any current respiratory disability, to include asthma and pneumonia. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current respiratory disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. Attention is requested to the pulmonary function results in the September 2015 VA treatment records. 4. After the development in (1) above has been completed, schedule the Veteran for an appropriate VA examination to determine the current level of severity of his migraine headaches. The examiner should review the file and provide a complete rationale for all opinions expressed. The examiner should specifically indicate the frequency of the Veteran’s headaches. If the examiner does not find that the Veteran has very frequent and prolonged attacks of migraine headache pain, the examiner should indicate why that is the case. The examiner should also provide an opinion regarding the functional impact of the Veteran’s migraine headaches disability upon his ability to work. 5. After the development in (1) above has been completed, schedule the Veteran for an appropriate VA examination to determine the current level of severity of his psychiatric disability. The examiner should review the file and provide a complete rationale for all opinions expressed. The examiner should also provide an opinion regarding the functional impact of the Veteran’s psychiatric disability upon his ability to work. 6. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Arnold, Associate Counsel