Citation Nr: 18156623 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 15-42 879 DATE: December 10, 2018 ORDER Service connection for a low back disability is granted. Service connection for benign paroxysmal positional vertigo (BPPV) is denied. A 20 percent rating for painful scars of the left thigh is granted, subject to controlling regulations governing the payment of monetary awards. REMANDED Entitlement to a rating in excess of 20 percent for a urethral stricture disability is remanded. Entitlement to a separate compensable rating for a scar related to the Veteran’s service-connected urethral disability is remanded. Entitlement to a rating in excess of 20 percent for scars of the left thigh is remanded. Entitlement to a rating in excess of 10 percent for a bilateral hearing loss disability is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his current low back disability is etiologically related to his back injury during service. 2. The Veteran’s current BPPV is not related to or aggravated by his service-connected disabilities. 3. The Veteran has three painful scars on the left thigh. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for service-connection for BPPV have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). 3. The criteria for a rating of 20 percent for painful scars of the left thigh have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7804 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from July 1968 to July 1970. His service medals and decorations include the Combat Infantryman Badge (CIB) and Purple Heart Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In an April 2011 rating decision, the RO, in pertinent part, denied entitlement to a rating in excess of 10 percent for scars of the left thigh as a residual of a shell fragment wound. In a January 2013 rating decision, the RO, in pertinent part, denied entitlement to a rating in excess of 20 percent for a urethral stricture disability. In a February 2014 rating decision, the RO denied entitlement to a rating in excess of 10 percent for a bilateral hearing loss disability and denied entitlement to service connection for vertigo. In an October 2017 rating decision, the RO denied entitlement to service connection for a back disability. The Veteran testified at a June 2018 Board Videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). To prevail on the issue of secondary service causation, generally, the record must show (1) medical evidence of a current disability, (2) a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The Veteran is currently diagnosed with arthritis of the lumbar spine, which is a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. 38 C.F.R. § 3.303(b). Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. Id. The presumptive service connection provisions based on “chronic” in-service symptoms and “continuity of symptomatology” after service under 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013) (holding that the “chronic” in service and “continuous” post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to “chronic” diseases at 3.309(a)). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for a low back disability. The Veteran contends that his current low back disability is etiologically related to a back injury he sustained in combat. As an initial matter, the Board finds that the Veteran has a current diagnosis of lumbosacral arthritis. See June 2002 x-ray report, May 2007 MRI report; October 2014 x-ray report; September 2017 VA examination report. Here, the Veteran’s service personnel records, particularly his DD-214, indicate that he received a CIB and a Purple Heart Medal, and these service medals are presumptively indicative of having engaged in combat with the enemy. Therefore, 38 U.S.C. § 1154(b) is applicable. The Veteran has consistently reported that he injured his back when his personnel carrier was hit with a rocket-propelled grenade (RPG) and ran over a land mine while in Vietnam. See May 2017 and June 2017 VA treatment records; June 2018 Board hearing transcript. The Board notes that the Veteran is already in receipt of service connection for injuries related to this incident. The Veteran testified that he was more concerned at the time about his other injuries than his back, but that he did report his back injury after he was evacuated to Japan. See June 2018 Board hearing transcript. The Veteran also testified that he was jarred around when the first personnel carrier ran over a land mine on his side and that his body was knocked halfway out of the carrier when the RPG subsequently hit that carrier. Id. As discussed above, the Veteran is a combat veteran, and the Board finds that his description of this in-service injury is consistent with the circumstances, conditions, and hardships of his service. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Thus, the Board finds that the Veteran had an in-service back injury caused by this combat incident. Turning to the issue of etiology, the Veteran was afforded a VA examination in September 2017. The VA examiner opined that the Veteran’s current low back disability was less likely than not incurred in or cause by the claimed in-service event or illness. The VA examiner explained that this opinion was based on the records showing complaints for, but no treatment of, a back problem in March 1994; that there is no mention of complaint for the back in the service treatment records related to the injury in service due to the RPG/mine; and that the treatment records show no chronicity of care for the back condition. This examination is inadequate as it did not assume as true the Veteran’s report of an in-service back injury, relied on the lack of back in the service treatment records, and did not provide a sufficient rationale for the opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). This opinion is inadequate and therefore of little to no probative value. The Veteran is competent to testify as to the onset and recurrence of his back pain, as it is observable by a layperson. During the June 2018 Board hearing, the Veteran testified that his back pain started during service and that he started seeing a chiropractor regularly for his back problems in the “70s or 80s.” The Board notes that the Veteran separated from service in 1970. The Veteran has been consistent in reporting that he has experienced back problems during service and since service. See February 1993 VA treatment record, June 2002 VA x-ray report, September 2006 VA treatment record, June 2017 VA treatment record, and June 2018 Board hearing transcript. Based on the Veteran’s probative lay reports, and resolving any reasonable doubt in his favor, the Board finds that the Veteran’s back disability has been continuous since separation from service. The probative evidence is at least in relative equipoise as to whether the Veteran’s back disability had its onset during active service. As noted above, the Veteran is competent to state when his back pain began and how often it occurs. See Jandreau; Buchanan. The Veteran has been consistent in the history he has provided, and there is no conflicting evidence regarding the history of onset or continuous nature of his back disability. In summary, based on his report of a back injury during service and on the Veteran’s competent statements regarding continuous back disability after active service, with the resolution of reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for a back disability are met. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for BPPV, claimed as secondary to service-connected bilateral hearing loss disability and tinnitus. The Veteran contends that his BPPV is etiologically related to his service-connected disabilities, including bilateral hearing loss and tinnitus. As an initial matter, the Board finds that the Veteran has a current diagnosis of BPPV. See February 2014 VA examination report. Next, the Board finds that the Veteran’s BPPV is not etiologically related to the Veteran’s service-connected disabilities. The February 2014 VA examiner opined that the Veteran’s BPPV is less likely than not proximately due to, or the result of, his service-connected bilateral hearing loss and/or tinnitus. The VA examiner stated that BPPV has not relationship to bilateral hearing loss or tinnitus, and quoted an extensive discussion from Up-to-Date regarding the causes of BPPV, none of which were co-morbid bilateral hearing loss or tinnitus. The VA examiner also opined that the Veteran’s service-connected disabilities did not aggravate the BPPV, as the current severity of the BPPV was not greater than the baseline severity. The Board finds this nexus opinion to be adequate and highly probative, as it included a thorough discussion of the Veteran’s medical history and a detailed rationale. The remaining evidence of record, to include post-service private and VA treatment records, does not suggest that the Veteran’s BPPV is etiologically related to, or aggravated by, the Veteran’s service-connected disabilities. The Veteran has not submitted any medical evidence in support of a nexus. For these reasons, the Board finds that the competent and probative evidence of record does not establish a link between the Veteran’s currently diagnosed BPPV and his service-connected disabilities. Accordingly, the Board finds that a preponderance of the evidence is against the claim for service connection, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. It is the Board’s responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is competent to testify on factual matters of which he or she has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Veteran is competent to provide evidence of observable symptoms, including pain. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). See also Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis, and the demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). In doing so, equal weight is not accorded to each piece of evidence in the record as every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert, 1 Vet. App. at 53; see also 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to a rating in excess of 10 percent for left thigh scars. The Veteran is in receipt of a 10 percent rating for painful scars on the left thigh under 38 C.F.R. § 4.118, DC 7804, applicable to scar(s), painful or unstable. He contends that a higher rating is warranted. Under DC 7804, a 10 percent rating is warranted 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 is warranted 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. Id. Based on a review of the evidence, lay and medical, the Board finds that a rating of 20 percent is warranted for painful scars under DC 7804, as the Veteran has consistently reported having only three painful scars and the evidence does not reflect that such scars are unstable. See February 2011 and February 2015 VA examination reports, and June 2018 Board hearing transcript. However, the Board will not address herein the issue of entitlement to a rating in excess of 20 percent for scars of the left thigh, as this issue is remanded for the reasons explained below. REASONS FOR REMAND Further development is necessary prior to adjudication of these claims. 1. Entitlement to a rating in excess of 20 percent for a urethral stricture disability is remanded. The Veteran’s most recent VA compensation examination for a urethral stricture disability was in April 2015. The fact that a VA examination is more than three years old is not a valid basis, unto itself, to provide the Veteran with another VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In this case, however, the Veteran stated during the June 2018 Board hearing that his urethral stricture disability had worsened. Therefore, a new VA examination is needed to assist in determining the current severity of the Veteran’s urethral stricture disability. Snuffer, 10 Vet. App. at 400. 2. Entitlement to a separate compensable rating for any scars related to the service-connected urethral disability is remanded. During the June 2018 Board hearing, the Veteran contended that a separate compensable rating is warranted for scars related to his service-connected urethral disability. The Board notes that this disability was caused by penile trauma and the Veteran has had several surgeries to treat this disability. See February 2015 VA urinary tract conditions examination report. As such, the Board finds that remand is warranted to determine if he has scars related to his service-connected urethral disability that would warrant a separate compensable rating. 3. Entitlement to a rating in excess of 20 percent for left thigh scars. The Board must defer consideration of the issue of entitlement to a rating in excess of 20 percent for scars of the left thigh, as it is inextricably intertwined with the issue of entitlement to a separate compensable rating for scars related to the service-connected urethral disability. Indeed, if additional scars are present, their presence may affect the rating assigned for the already service-connected scars. 4. Entitlement to a rating in excess of 10 percent for a bilateral hearing loss disability is remanded. The Veteran’s most recent VA compensation examination for his bilateral hearing loss disability was conducted in February 2014. The Veteran stated during the June 2018 Board hearing that his bilateral hearing loss disability had worsened. Therefore, a new VA examination is needed to assist in determining the current severity of the Veteran’s disability. Snuffer, 10 Vet. App. at 400. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of his urethral stricture disability. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultation should be accomplished and all clinical findings should be reported in detail. **Specifically describe any and all scars related to the Veteran’s service-connected penile injury, including any scars related to the Veteran’s numerous penile/urethra surgeries. 2. Schedule the Veteran for a VA examination to determine the current severity of his bilateral hearing loss disability. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultation should be accomplished and all clinical findings should be reported in detail. 3. Then, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel