Citation Nr: 1807657	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  13-04 062	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah


THE ISSUES

1.  Entitlement to service connection for a chronic respiratory disorder, including as a result of an undiagnosed illness.  

2.  Entitlement to an increased rating in excess of 30 percent for generalized anxiety disorder (GAD) with panic attacks and posttraumatic stress disorder (PTSD).  

3. Entitlement to an increased rating in excess of 30 percent for scars of the back, shoulders and arms, residuals of basal cell carcinoma (BCC).  


REPRESENTATION

Appellant represented by:	James M. McElfresh, II, Agent


WITNESSES AT HEARING ON APPEAL

Appellant (the Veteran) and his spouse


ATTORNEY FOR THE BOARD

Joseph P. Gervasio, Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from January 25, 1982 to February 10, 1982 and from May 1983 to August 2003.  

This case comes to the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Salt Lake City, Utah, Regional Office (RO) of the Department of Veterans Affairs (VA).  The issues on appeal included entitlement to service connection for a left neck scar; entitlement to an increased rating for GAD, panic disorder, and PTSD, rated 10 percent prior to March 31, 2010, and 30 percent therefrom; an increased rating for BCC scars of the back, shoulders, and arms, rated noncompensable prior to April 22, 2014, and 30 percent therefrom; entitlement to an increased rating for a BCC scar of the right cheek, rated 10 percent disabling; entitlement to an increased rating for a BCC scar of the neck, rated 10 percent disabling, entitlement to a compensable rating for a BCC scar of the face; and entitlement to a compensable rating for tension headaches.  

In May 2013, the Veteran and his spouse testified at a videoconference hearing regarding the issues of service connection for SCC of the left neck and ratings for BCC scars and headaches before a Veterans Law Judge who is no longer a member of the Board.  A transcript of the hearing is associated with the Veteran's claims file.  The case was remanded by the Board in January 2014 for further development of the evidence regarding those issues.  The Veteran was afforded an additional videoconference hearing before the undersigned in February 2015.  A transcript of that hearing has also been associated with the Veteran's claims file.  

By decision dated in September 2015, the Board decided many of the issues on appeal, including that a 30 percent rating was warranted for GAD, with panic attacks and PTSD from the date of claim to March 30, 2010; that an increased rating for BCC scars of the back, shoulder, and arms was not warranted prior to April 22, 2014; and that the ratings for tension headaches should be noncompensable prior to November 21, 2014, but that a 50 percent rating was warranted as of that date.  The Board decision also found that referral for an extraschedular award for tension headaches under the provisions of 38 C.F.R. § 3.321 was not warranted.  As such, despite the inclusion of this matter in the Supplemental Statement of the Case (SSOC) it is not currently before the Board.  38 U.S.C. §5108, 7104 (2012).  

The September 2015 Board decision also remanded the issues of entitlement to service connection for a scar of the left neck, the residual of squamous cell carcinoma (SCC); and for increased ratings in excess of 30 percent from March 31, 2010, for an acquired psychiatric disability and in excess of 30 percent from April 22, 2014, for BCC scars of the back, shoulders and arms.  Following the Board's requested development, service connection was established for an SCC scar of the neck.  The remaining issues were returned for further appellate consideration.  

By rating decision dated in May 2017, the RO denied service connection for a chronic respiratory disorder.  The Veteran disagreed with this denial, a statement of the case was issued, and the Veteran submitted a timely substantive appeal.  Thus the issue is before the Board for appellate consideration.  


FINDINGS OF FACT

1.  The Veteran served in the Southwest Asia theater of operations during service.  

2.  The Veteran's chronic respiratory disorder, presenting with upper respiratory symptoms, including chronic shortness of breath, shortness of breath on exertion and chronic coughing, is shown to be the result of an undiagnosed illness.

3.  Throughout the appeal, the Veteran's psychiatric disabilities are predominately manifested by such symptoms as flashbacks, nightmares, avoidance behavior, a depressed mood, anxiety, suspiciousness, hypervigilance, panic attacks that occurred weekly or less often, chronic sleep impairment, and mild memory loss.  Occupational and social impairment are productive of occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.  

4.  The Veteran's BCC scars of the shoulder, arms and back are shown to be manifested by a number of painful scars that are not found to be deep, cause limitation of motion, cause frequent loss of skin covering, be unstable or both unstable and painful simultaneously.  


CONCLUSIONS OF LAW

1.  A chronic respiratory disorder, presenting with upper respiratory symptoms, including chronic shortness of breath, shortness of breath on exertion and chronic coughing, due to undiagnosed illness, was incurred during service.  38 U.S.C. §§ 1110, 1117, 1131, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2017).

2.  The criteria for an increased rating in excess of 30 percent for GAD, panic disorder, and PTSD have not been met for any period.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code (Code) 9411 (2017).  

3.  The criteria for an increased rating in excess of 30 percent for BCC scars of the shoulders, arms and back have not been met for any period.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.118, Code 7804 (2017).  



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA's duty to notify was satisfied by letters dated in February 2005, October 2008, November 2009, June 2010, and August 2015.  See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  

With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured.  The Veteran was afforded VA medical examinations, most recently in May 2017.  The Board finds that the opinions obtained are adequate.  The opinions were provided by qualified medical professionals and were predicated on a full reading of all available records.  The examiners also provided detailed rationale for the opinions rendered.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Neither the Veteran nor the representative has challenged the adequacy of the examinations obtained.  Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion).  Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining a VA examination or opinion, has been met.  38 C.F.R. § 3.159(c)(4) (2017).  

Service Connection Laws and Regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  If a condition, as identified in 38 C.F.R. § 3.309(a), noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease 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).

Service connection may be established for a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1).  In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004).  Further, lay persons are competent to report objective signs of illness.  Id.

"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification.  To fulfill the requirement of chronicity, the illness must have persisted for a period of six months.  38 C.F.R. § 3.317(a)(2), (3).  Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders.  38 C.F.R. § 3.317(b).

Compensation shall not be paid under this section if: (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs.  38 C.F.R. §3.317(c).

The term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War.  38 C.F.R. § 3.317(d)(1).  The Southwest Asia theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations.  38 C.F.R. §3.317(d)(2).

In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  See Hickson v. West, 12 Vet. App. 247 (1990).   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 (1990); 38 C.F.R. § 3.303(a).

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. 

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) (2012); 38 C.F.R. § 3.102 (2017).  When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Lay statements may support a claim for service connection by establishing the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), they are not competent to provide opinions on medical issues that fall outside the realm of common knowledge of a lay person.  See Jandreau, 492 F.3d 1372.  Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

Chronic Respiratory Illness

The Veteran's STRs confirm that he had active service in the Southwest Asia theater of operations during the Persian Gulf War.  Therefore, service connection may be established under 38 C.F.R. § 3.317.  

The Veteran seeks service connection for a chronic respiratory illness, which he attributes to exposure to toxins from the air from the burning of oil wells in Saudi Arabia during his deployment in the Gulf War.  In the Veteran's substantive appeal, his representative noted that the Veteran was treated for upper respiratory infections during service and that a VA examiner stated that the Veteran's symptoms represented an undiagnosed illness.  

Review of the Veteran's STRs shows that the Veteran was treated on a number of occasions during service for coughing and upper respiratory infection (URI), with and without bronchitis.  On examination in 2002, evaluation of the lungs showed them to be clear to auscultation.  On VA Gulf War examination in August 2015, the Veteran had no complaints regarding his respiratory system.  Private outpatient treatment records include a report of a November 2015 CT scan study showing that the lung bases were clear at that time.  

An examination was conducted by VA in May 2017.  At that time, the Veteran reported having shortness of breath.  He reported having URI conditions periodically throughout service with viral syndromes noted on several occasions and a diagnosis of bronchitis in 2001.  VA pulmonary function testing at that time showed spirometry to be within normal limits.  The examiner opined after review of the conflicting medical evidence, that the Veteran's disability pattern was an undiagnosed illness, presenting with upper respiratory symptoms that included chronic shortness of breath, shortness of breath on exertion, and chronic coughing.  The examiner went on to state that the medical literature was silent on multiple acute upper respiratory conditions being the cause of chronic dyspnea of unclear etiology.  The actual causation of the chronic dyspnea could not be selected from multiple potential causes that included asthma, chronic obstructive pulmonary disease (COPD), emphysema, or interstitial lung disease.  

Based on the foregoing, the Board finds that the evidence supports a finding that the Veteran's chronic respiratory condition, presenting with upper respiratory symptoms, including chronic shortness of breath, shortness of breath on exertion and chronic coughing, was caused by, or is a result of his military service.  In making this determination, the Board notes that the Veteran is competent to report the respiratory symptoms.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau, 492 F.3d 1372; Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  The Veteran is also competent to report that he experienced these symptoms after his deployment to Saudi Arabia where he was presumably exposed to chemicals, burning fuels, etc.  See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge).  It is within the Veteran's realm of personal knowledge whether he has experienced respiratory symptoms during service and has experienced these symptoms since service. 

Moreover, the Board finds the Veteran's reports of in-service symptoms and a continuity of symptomatology since service to be credible.  His records are internally consistent as the STRs note findings of congestion, persistent cough, and a finding of bronchitis.  While the STRs show that the Veteran had respiratory complaints prior to his deployment to Saudi Arabia, this does not diminish the fact that the symptoms first manifested in service.  As such, the Board finds that the Veteran's statements are credible and probative, and add weight to the overall claim. See Struck v. Brown, 9 Vet. App. 145, 155-156 (1996). 

After a careful review of all of the medical and lay evidence of record, the Board finds that the Veteran has chronic complaints of a respiratory disorder, presenting with upper respiratory symptoms, including chronic shortness of breath, shortness of breath on exertion and chronic coughing, that is, in the opinion of the VA examiner in May 2017, the result of an undiagnosed illness.  It is important to note that the Board may not reject medical opinions based on its own medical judgment.  Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991).  As such, the May 2017 opinion is persuasive in determining the onset and etiology of his chronic respiratory condition.  Moreover, in weighing the medical opinion of record, the in-service and post-service medical findings of chronic respiratory symptoms, the conceded exposure to chemicals and burning fuel/oil, etc. in service, and the statements from the Veteran regarding chronic respiratory symptomatology since service for many years, the Board finds that the evidence is relatively equally balanced in terms of whether he has a respiratory disorder related to his military service, and will resolve this reasonable doubt in the Veteran's favor.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert 1 Vet. App. at 49.  Therefore, entitlement to service connection for a chronic respiratory condition, presenting with upper respiratory symptoms, including chronic shortness of breath, shortness of breath on exertion and chronic coughing, is warranted.  


Increased Rating Laws and Regulations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4.  38 U.S.C. § 1155.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21 (2017).  

Where there is a question as to which of two evaluations shall be applied, the higher rating 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 (2017).  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, 4.3 (2017).  

The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

GAD with Panic Attacks and PTSD

Service connection for GAD, Panic Disorder and PTSD was granted by the RO in a November 2004 rating decision.  The current 30 percent disability rating was addressed by the Board as it related to disability prior to a March 2010 VA examination.  As noted, the current rating was remanded and will now be addressed.  

An examination was conducted by VA in October 2010.  At that time, it was noted that the Veteran had his own medical transportation business.  On mental status examination, he was noted to be well-developed, well-nourished, and dressed appropriately for the occasion.  There was no evidence of impairment of thought process or communication.  There was no evidence of delusions or hallucinations.  He showed good eye contact and interacted appropriately during the session.  There was no inappropriate behavior.  He denied current suicidal or homicidal thoughts, ideations, plans, or intent.  He had the ability to maintain minimal personal hygiene and other basic activities of daily living.  He was oriented to person, place and time.  He endorsed having short-term memory problems.  His wife stated that he forgot stuff and misplaced items often.  There was no evidence of obsessive or ritualistic behavior.  Rate and flow of speech were normal.  He endorsed having panic attack triggered when he felt overwhelmed.  He sometimes felt sick for days like he had a tightness in his neck or shoulders.  He described his mood as tired.  His affect was fully ranged and appropriate.  Impulse control, insight and judgment were fair.  Regarding PTSD symptoms, the Veteran endorsed having flashbacks that were triggered by guns or "popping noises."  He stated that he had nightmares wherein he was fighting off something.  He also had nightmares of something coming at him fast from which he woke very afraid taking a little time to calm down.  He avoided guns as well as planes flying in the sky, although he did not have problems flying.  He also noted problems with anger and irritability.  There was no evidence of mania or psychosis.  It was reported that he was in treatment and on medication for his psychiatric disorder.  Social functioning was impaired, but, while there might be some impairment of employment due to psychiatric issues, he was able to adequately function.    

An examination was conducted by VA in December 2012.  At that time, the examiner found that the Veteran did not have a mental disorder diagnosis.  Regarding social and family relationships, it was noted that he had a decent relationship with his spouse and that he was able to get along with his children, although he wished he could have more substantial conversations with them.  He reportedly had little contact with his father or four siblings.  He did not have friends with whom he socialized, but denied experiencing social deficits, stating that he was friendly with others, including his neighbors.  Regarding occupational and educational history, the examiner noted that the Veteran had recently completed a master's degree in Business Administration and was seeking employment.  He was not currently attending outpatient psychiatric treatment or taking psychiatric medications.  On mental status evaluation, the Veteran was punctual and casually dressed.  He was open and cooperative during the interview.  He was alert and fully oriented.  Thought process was logical and goal-directed, with no history of hallucinations being reported.  Speech was calm and affect was full.  Thought content was devoid of overt delusions.  There was no history of obsessive or ritualistic behaviors.  He responded appropriately to abstract proverbs.  When asked about his mental health symptoms he noted that he often felt despair, and was bothered by his unemployment.  When asked about PTSD symptoms he was unable to list symptoms that caused him distress or contributed to occupational or social impairment.  He did not meet the full criteria for PTSD in that, while he did have a noted stressor, he was unable to describe recurrent thoughts, memories, or distress related to his past trauma and did not experience nightmares or frequent triggers.  He would occasionally experience panic attacks, but there was no evidence of symptoms consistent with a panic disorder diagnosis.  He was somewhat hypervigilant when in public.  He stated that he felt occasionally depressed or "unmotivated."  He was somewhat hopeless about the future and occasionally felt worthless about himself.  He was able to continue to find interest and pleasure in a variety of activities, but did not endorse sleeping or eating difficulties.  Concentration was typically okay and there was no reported history of suicidal thoughts.  In summary, the examiner stated that the Veteran's symptoms continued to be mild and he did not evidence symptoms that caused occupational or social impairment.  He had successfully completed an MBA and was motivated to find work.  There was no evidence of significant impairment in thought process, judgment, or communication and no evidence of consistent anxiety or depression.  The only PTSD symptoms listed was suspiciousness.  

An examination was conducted by VA in April 2016.  At that time, the diagnoses were PTSD, GAD, and panic disorder.  The examiner noted that it was not possible to differentiate the symptoms that were attributable to each diagnosis.  The Veteran's occupational and social impairment were described as occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.  He stated that he had intrusive memories of the traumatic experiences that he had during service.  Frequent triggers for his PTSD symptoms were popping noises that sounded like gunshots, fireworks, or cars backfiring.  He also had problems having to wait in a line at the airport and crowded areas.  He struggled with nightmares.  He had panic attacks with heart palpitations, chest tightness, shortness of breath, shallow breathing, sweating, flushing, headaches, and abdominal distress.  He avoided being in traffic.  He struggled with extreme sadness, anger, horror, frustration and survivor guilt.  He felt detached and estranged from others, especially civilians.  He had disturbed sleep.  He had problems with concentration.  He stated that he had short-term memory problems and needed to write everything down.  He was hypervigilant and had an exaggerated startle response.  He had excessive anxiety and worried about his future.  He denied any history of suicidal ideation or suicide attempts and had no current active or passive suicidal or homicidal ideation, thoughts, plans, or intent.  He met many of the diagnostic criteria for PTSD.  Symptoms noted included depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, and mild memory loss.  

A non-compensable evaluation for PTSD is warranted where the condition has been formally diagnosed, but the symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication.  

A 10 percent rating is warranted for PTSD with occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; where symptoms are controlled by continuous medication.  

A 30 percent rating is warranted for PTSD with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events).  

A 50 percent rating is warranted for occupational and social impairment with reduced reliability, and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  

A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideations; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or worklike settings); inability to establish and maintain effective relationships.  

A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name.  38 C.F.R. § 4.130, Code 9411 (1998).  

The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation.  Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002).  On the other hand, if the evidence shows that the veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned.  Mauerhan, 16 Vet. App. at 443.  The United States Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities.  Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004).  

The Board has reviewed all of the evidence of record and finds that the Veteran's psychiatric disabilities are predominately manifested by such symptoms as flashbacks, nightmares, avoidance behavior, a depressed mood, anxiety, suspiciousness, hypervigilance, panic attacks that occurred weekly or less often, chronic sleep impairment, and mild memory loss.  On examination in 2016 his occupational and social impairment were described as resulting in occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.  While the 2012 examination report called all of the psychiatric diagnoses into question, subsequent examination did not.  The Board does not find that the Veteran has exhibited symptoms that meet or approximate the criteria for a rating in excess of the current 30 percent.  In this regard, it is noted that there is no evidence of a flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; or disturbances of motivation and mood.  Thus there is no indication of symptoms causing occupational and social impairment with reduced reliability, and productivity.  As such, there is no basis upon which a rating in excess of 30 percent may be awarded.  For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for an increased rating for his service-connected psychiatric disability, 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. §§ 4.3, 4.7. 

BCC Scars of the Back, Shoulders and Arms 

Service connection for BCC scars of the back, shoulders and arms was established by rating decision of the RO in November 2004.  A noncompensable rating was initially assigned.  The rating was then increased to 30 percent by rating decision dated in June 2014, effective on April 22, 2014.  In the September 2015 decision, the Board concluded that a compensable rating was not warranted for residual BCC scars of the back, shoulders, and arms prior to April 22, 2014.  The matter relating to a rating in excess of 30 percent from April 22, 2014, was remanded for further development of the evidence.  

An examination was conducted by VA on April 22, 2014.  At that time, two scars of each shoulder were noted.  These were said to be painful and burn when reaching.  The scars were not unstable or both painful and unstable.  Five scars of the right shoulder and arm were found.  Linear scars measuring 5 cm by 2 cm, 4 cm by 0.5 cm, and 3 cm by 2 cm were noted.  Superficial nonlinear scars measuring 1 cm by 1 cm and 2 cm by 1 cm were also noted.  The left upper extremity noted 7 scars.  Linear scars measured 4 cm by 2 cm, 5 cm by 2 cm, 1 cm by 1 cm, and 1 cm by 2 cm.  Superficial nonlinear scars measuring 3 cm by 2 cm, 1 cm by 1 cm, and 1 cm by 1 cm were noted.  Regarding the anterior trunk, three scars were noted.  Linear scars measuring 2 cm by 1 cm and 4 cm by 5 cm and a superficial nonlinear scar measuring 1 cm by 1 cm, were found.  Five scars were noted on the posterior trunk.  These measured 2.5 cm by 1 cm, 2 cm by 1 cm, 2 cm by 1 cm, 2.5 cm by 2.5 cm and 1.5 cm by 0.5 cm.  Total area of nonlinear scars were 3 cm2 on the right upper extremity, 8 cm2 on the left upper extremity, 1 cm2 on the anterior trunk, and 2 cm2 on the posterior trunk.  

An examination was conducted by VA in April 2016.  The pertinent diagnosis was BCC scars of the back, chest, shoulders, and arms.  Examination of the scars of the trunk showed three painful scars on the right shoulder, left shoulder and back.  The shoulder scars caused a burning sensation when the Veteran moved his arms and shoulders.  The scar on the back was mildly painful and itched when he moved his shoulders.  There was no evidence that the scars were unstable with frequent loss of covering of the skin over the scars.  Scarring of the right upper extremity and right shoulder included 1-3 linear and 1-2 nonlinear scars.  The linear scars measured 3 cm, 4 cm, and 2 cm.  The superficial nonlinear scars measured 3 by 3 cm, 2 by 2 cm, 1 by 2 cm and 2 by 1 cm.  On the left upper extremity there were 1-4 linear and 1-2 nonlinear scars.  The linear scars measured 4 cm, 3 cm, and two scars measuring 1 cm.  The superficial nonlinear scars measured 3 by 2 cm, 5 by 2 cm, 1 by 1 cm, 1 by 1 cm and 3 by 2 cm.  Scarring of the posterior trunk included 1-2 linear scars and 1-3 nonlinear scars.  The linear scars each measured 2 cm and the superficial nonlinear scars measured 3 by 2 cm, 2 by 2 cm, and 3 by 3 cm.  The superficial nonlinear scars showed a total area of 17 cm2 on the right upper extremity, 24 cm2 on the left upper extremity, 1 cm2 on the anterior trunk and 19 cm2 on the posterior trunk.  

Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion.  Scars that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling.  Scars in an area or areas exceeding 12 square inches (77 sq. cm.) are rated 20 percent disabling.  Scars in an area or areas exceeding 72 square inches (465 sq. cm.) are rated 30 percent disabling.  Scars in an area or areas exceeding 144 square inches (929 sq.cm.) are rated 40 percent disabling.  Note (1) to Diagnostic Code 7801 provides that a deep scar is one associated with underlying soft tissue damage.  38 C.F.R. § 4.118.  Note (2) provides that if multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under 38 C.F.R. § 4.25.  Qualifying scars are scars that are nonlinear, deep, and are not located on the head, face, or neck.  38 C.F.R. § 4.118.

Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion.  Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling.  Note (1) to Diagnostic Code 7802 provides that a superficial scar is one not associated with underlying soft tissue damage.  Note (2) provides that if multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk.  Combine the separate evaluations under  38 C.F.R. § 4.25.  Qualifying scars are scars that are nonlinear, deep, and are not located on the head, face, or neck.  38 C.F.R. § 4.118.

Diagnostic Code 7804 provides a 10 percent rating for superficial unstable scars.  Diagnostic Code 7804 provides that one or two scars that are unstable or painful are rated 10 percent disabling. Three or more scars that are unstable or painful are rated 20 percent disabling. Five or more scars that are unstable or painful are 30 percent disabling.  Note (1) to Diagnostic Code 7804 provides 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.  Note (3) provides that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable.  38 C.F.R. § 4.118. 

Diagnostic Code 7805 provides that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code.  38 C.F.R. § 4.118.

Where there is separate and distinct symptomatology of a single condition it should be separately rated.  Where the symptomatology of a condition is duplicative or overlapping with symptomatology of another condition, it may not receive a separate evaluation.  38 C.F.R. §§ 4.14, 4.25; Esteban v. Brown, 6 Vet. App. 259 (1994).  

The Board notes that, effective April 22, 2014, the RO awarded a rating of 30 percent on the basis that the Veteran had four painful scars of the shoulders.  Additional evaluation showed a total area of 13 cm2, which is far less than the 929 cm2 that would be required for a separate 10 percent rating to be awarded under Code 7802.  Additionally, there is no evidence that the Veteran's scars are deep or cause limitation of motion, so a separate award under Code 7801 is not appropriate.  Moreover, there is no evidence that any of the scars are shown to be both unstable and painful or that they manifest frequent loss of skin covering.  The examination report dated in 2016 is similarly negative for these findings, with only three painful scars of the shoulders and back described.  As such, there is no basis for a rating in excess of the 30 percent awarded by the RO and the claim must be denied.  For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for an increased rating for his service-connected scars of the back, shoulders and arms, residuals of BCC, 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. §§ 4.3, 4.7.

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ORDER

Service connection for a chronic respiratory disorder, presenting with upper respiratory symptoms, including chronic shortness of breath, shortness of breath on exertion and chronic coughing, due to undiagnosed illness, is granted.  

An increased rating in excess of 30 percent for GAD with panic attacks and PTSD is denied.  

An increased rating in excess of 30 percent for scars of the back, shoulders and arms, residuals of BCC, is denied.  



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs