Citation Nr: 1813294 Decision Date: 03/07/18 Archive Date: 03/14/18 DOCKET NO. 14-18 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a compensable evaluation for scar and residuals from an abdominal knife wound. 2. Entitlement to service connection for pancreatitis, as secondary to abdominal knife wound. 3. Entitlement to service connection for a right knee condition. 4. Entitlement to service connection for a left knee condition. 5. Entitlement to service connection for a broken right ankle. 6. Entitlement to service connection for a broken right leg. 7. Entitlement to service connection for cervical arthritis. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. A. Macek, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to April 1968 in the United States Army. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, CA. In August 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a travel Board conference hearing. A transcript of the hearing has been associated with the claims file. FINDINGS OF FACT 1. During the pendency of the appeal, the Veteran's single scar and residuals from an abdominal knife wound manifested with pain, but remained stable. 2. The Veteran's chronic pancreatitis did not manifest in service, is not related to such service, and is not caused or aggravated by a service connected disability. 3. The Veteran's right knee disability did not manifest in service, is not related to such service, and is not caused or aggravated by a service connected disability. 4. The Veteran's left knee disability did not manifest in service, is not related to such service, and is not caused or aggravated by a service connected disability. 5. The Veteran's right ankle disability did not manifest in service, is not related to such service, and is not caused or aggravated by a service connected disability. 6. The Veteran does not have a right leg fracture or residuals associated with a right leg disability. 7. The Veteran does not have cervical arthritis or residuals associated with a neck disability. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 10 percent, but not greater than, for scar and residuals from an abdominal knife wound have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.118, Diagnostic Code 7804 (2017). 2. The criteria for entitlement to service connection for pancreatitis, as secondary to abdominal knife wound, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 1154, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). 3. The criteria for entitlement to service connection for a right knee condition have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 1154, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 4. The criteria for entitlement to service connection for a left knee condition have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 1154, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 5. The criteria for entitlement to service connection for a broken right ankle have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 1154, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 6. The criteria for entitlement to service connection for a broken right leg have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 1154, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 7. The criteria for entitlement to service connection for cervical arthritis have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 1154, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, and by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries, and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.1 (2017). Separate Diagnostic Codes (DC) identify the various disabilities and the criteria for specific ratings. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2017). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102 (2017); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Scar and residuals from an abdominal knife wound The Veteran is currently assigned a noncompensable rating under §4.118 (2017), Diagnostic Code (DC) 7804 for his scar and residuals from an abdominal knife wound. Under DC 7804, disability ratings are assigned for unstable or painful scars. The section 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. 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 (2017). At a February 2017 hearing before the undersigned VLJ, the Veteran testified that he accidently stabbed himself in the abdomen with a boning knife while preparing food. He claims that the entire knife, which is longer than 6 inches, went into his abdomen. He stated that his abdominal scar remains painful and irritating. In June 2010, the Veteran was afforded a VA examination for his abdomen and peritoneal muscles. The examiner measured one residual scar the level of the right lower quadrant measuring 1.2 centimeters (cm) by 0.1 cm. The scar was described as hypopigmented, superficial, without keloids, and without adherence to the deep tissues. The examiner notes the May 1967 service treatment records which noted a hospitalization for a 3 inch self-inflicted accidental stab wound to the abdomen. A sinogram revealed that radiopaque contrast material appeared to be subcutaneous and no contrast was observed in the abdomen. The examiner concluded that based on this finding, there was no penetration of the peritoneal cavity. The examiner noted that the scar was stable, not painful, and not ulcerated. The Board finds that the Veteran is entitled to an evaluation of 10 percent, but not greater than, for his scar residuals from an abdominal knife wound. The Veteran reports irritability and pain at the scar site. While the June 2010 VA examiner found the scar to be stable and without pain, the Board finds the Veteran's subjective complaints of pain credible. McLendon v. Nicholson, 20 Vet. App. 79 (2006) (pain or other symptoms capable of lay observation is enough to satisfy the "low threshold" requirement that a disability "may be associated" with service. See also, Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (lay persons without medical training have general competence to testify as to symptoms, but not to provide a medical diagnosis). Resolving the benefit of doubt in the Veteran's favor, the Board finds that his abdominal scar suffered from an accidental stab wound during service manifests with pain and warrants a 10 percent evaluation. There is one scar associated with the Veteran's service connected stab wound. Additionally, the Veteran's scar is considered stable. There is no indication that the Veteran's abdominal musculature or any organ dysfunction is affected by the stab injury. Since there are not three or more scars considered painful or unstable, a rating in excess of 10 percent is not warranted. II. Service connection A. Direct Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 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. See 38 C.F.R. § 3.303 (2017); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. B. Presumptive Service Connection for Chronic Diseases Service connection for chronic diseases, including arthritis, may be established on a presumptive basis by showing that the disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. § 3.307 (a)(3) (2017). If the chronic disease manifested in service or within the presumptive period, then service connection will be established for subsequent manifestations of the same chronic disease at any date after service, no matter how remote, without having to show a causal relationship or medical nexus, unless the later manifestations are clearly due to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that § 3.303(b) only applies to the chronic diseases listed in § 3.309(a)). When the condition noted during service is not shown to be chronic, or its chronicity may be legitimately questioned, then a continuity of symptoms after service must be shown to establish service connection under this provision. Id. at 1338-39 (observing that a continuity of symptoms after service is a relaxed evidentiary showing that itself "establishes the link, or nexus" to service and also confirms the existence of the chronic disease while in service or during a presumptive period). To establish service connection based on a continuity of symptoms under § 3.303(b), the evidence must show: (1) a condition "noted" during service; (2) post-service continuity of the same symptoms; and (3) a nexus between the present disability and the post-service symptoms. Fountain v. McDonald, 27 Vet. App. 258, 263-64 (2015). Pancreatitis, as secondary to abdominal knife wound The Veteran contends that his current pancreatitis condition is the result of the accidental stab wound he suffered in service. He testified that he was told by his long-time doctor that pancreatitis is related to the stab wound from service. The Veteran described receiving treatments involving gall bladder removal and multiple treatments for pancreatitis that followed. The Veteran's representative argued that service treatment records revealed an increased bilirubin, measuring 1.6, during a blood draw, which may be indicative of liver disease. With respect to element (1), a current disability, the Veteran has a chronic pancreatitis disability. In June 2010, the Veteran was afforded a VA examination for his pancreatitis disability. The Veteran was diagnosed with chronic pancreatitis with recurring hospitalizations over the past six months. With respect to element (2), in-service incurrence or aggravation of a disease or injury, service treatment records reveal that in May 1967, the Veteran was hospitalized for an accidental stab wound to the abdomen. The stab wound was measured at 3 inches deep with no penetration into the peritoneal area. The Veteran's separation examination was negative for any residual abdominal or pancreatic conditions. With respect to element (3), a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability, the competent, credible, and probative evidence of record weighs against a finding that the Veteran's current chronic pancreatitis is etiologically related to service. The June 2010 VA examination revealed that as part of the Veteran's medical history, he underwent a sinogram during his 1967 hospitalization following an accidental stab wound to the abdomen. The contrast material was subcutaneous and did not penetrate the abdomen area. The Veteran was discharged from the hospital without acute findings, rebound, or guarding in the abdominal region. The Veteran's post-service treatment records reveal that the onset of his abdominal pain was in 2000. He underwent a gall bladder removal and received frequent treatment for chronic pancreatitis at the time of his June 2010 VA examination. The June 2010 VA examiner opined that it is less likely than not that the Veteran's chronic pancreatitis is related to the accidental abdominal stab wound suffered in service. The examiner noted that there was no perforation of the peritoneal cavity and the stab-wound did not cause deep scarring that was responsible for stenosis of the ampulla associated with chronic pancreatitis. She noted no muscle injury to the abdominal muscles aside from the residual superficial scar. While the Board finds the Veteran's reports concerning his abdominal stab wound credible and he is competent to report the pain that he has experienced due to his pancreatitis. However, the Veteran lacks the necessary education, training, and experience to offer a medical diagnosis or to provide an etiology opinion on the condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the Veteran's chronic pancreatitis is not related to his active service. The Veteran was hospitalized for an abdominal stab wound during service. The sinogram performed as part of the Veteran's hospitalization effectively ruled-out any trauma to the inner organs within the peritoneum. Rather, the sinogram revealed a subcutaneous wound measuring 3 inches without a perforation of the peritoneum. The Veteran was released from the hospital without complications and without symptoms of abdominal pain. The Board notes that the Veteran presented with an elevated bilirubin level at one of his blood draws during service. Dorland's Illustrated Medical Dictionary, at 215 (32nd ed. 2012) reads that bilirubin is the product of the breakdown of blood which occurs in the liver. High bilirubin levels may result in jaundice (yellowing of skin). Id. The record does not indicate any diagnosis of liver disease or jaundice. In fact, the Veteran was found to be negative for jaundice at the June 2010 VA examination. In sum, the Veteran's chronic pancreatitis did not manifest in service or to a compensable degree within one year of separation from service. Additionally, his chronic pancreatitis manifested in 2000 and was not caused or aggravated by the stab wound suffered in service. As such, service connection for chronic pancreatitis is denied. Right knee condition The Veteran contends his current right knee condition is related to service. He claims he injured his left knee, right ankle, and right leg in service and that his current right knee osteoarthritis is secondary to injuries he sustained playing football. With respect to element (1), a current disability, the Veteran has a right knee disability. Based on treatment records from 2005 to 2010, he was diagnosed with degenerative arthritis of the right knee. With respect to element (2), in-service incurrence or aggravation of a disease or injury, service treatment records are absent for any complaints, treatment, or diagnosis of a right knee condition. The Veteran did not manifest with degenerative arthritis within the one year presumptive period following separation. Additionally, there is no continuity of symptomatology to support recurrent symptoms of a right knee disability as the Veteran did not seek treatment involving his right knee until over 35 years after separation from service. The Board finds that the Veteran's right knee disability did not occur in service and is not related such service. As such, service connection for a right knee disability is not warranted. Left knee condition The Veteran contends his current left knee condition is related to service. He claims he injured his left knee playing football and that his current left knee osteoarthritis is secondary to injuries he sustained playing football. With respect to element (1), a current disability, the Veteran has a left knee disability. Based on treatment records from 2005 to 2010, the Veteran was diagnosed with degenerative arthritis of the left knee. With respect to element (2), in-service incurrence or aggravation of a disease or injury, service treatment records reveal that the Veteran sought treatment for complaints of left knee pain while suffering an injury playing football. X-rays of the Veteran's knee was negative for any abnormality. With respect to element (3), a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability, the competent, credible, and probative evidence of record weighs against a finding that the Veteran's current degenerative arthritis of the left knee is etiologically related to service. In July 2010, the Veteran was afforded a VA examination for his left knee disability. The examiner noted a 1966 in-service complaint of left knee pain with negative X-rays. During the examination, the examiner noted that the Veteran was limping with an antalgic gait. Pain was noted on motion. The examiner found advanced degenerative changes in the left knee based on x-ray. She opined that it is less likely than not that the Veteran's left knee disability is related to service. Her rationale indicated that there was no evidence to suggest residual disability in the left knee while in the military or that there was a chronic disability upon separation. The Board finds the Veteran injured his left knee, diagnosed as a contusion, in service; however, medical evidence in the record indicates that his current degenerative arthritis of the left knee is not likely related such service. The Veteran's November 1967 separation examination was absent for any left knee condition. The Veteran did not manifest with degenerative arthritis of the left knee within the one year period following separation. Additionally, there is no probative evidence showing continuity of symptomatology to support recurrent symptoms of a left knee disability as the Veteran did not seek treatment involving his left knee until over 35 years after separation from service. As such, service connection for a left knee disability is not warranted. Broken right ankle The Veteran contends his current right ankle condition is related to service. He claims he injured his right ankle playing football and that his current left knee osteoarthritis is secondary to injuries he sustained playing football. With respect to element (1), a current disability, the Veteran has a right ankle disability. Based on treatment records from 2005 to 2010, the Veteran was diagnosed with degenerative arthritis of the right ankle. With respect to element (2), in-service incurrence or aggravation of a disease or injury, service treatment records reveal that the Veteran sought treatment for complaints of right ankle pain while suffering an injury playing football. He was diagnosed with a right ankle sprain. There is no evidence of a fracture to the right ankle. With respect to element (3), a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability, the competent, credible, and probative evidence of record weighs against a finding that the Veteran's current degenerative arthritis of the right ankle is etiologically related to service. In July 2010, the Veteran was afforded a VA examination for his right ankle disability. The examiner noted a 1967 in-service complaint of right ankle pain. During the examination, the examiner noted that the Veteran was limping with an antalgic gait. Flare-ups to the right ankle were noted on cold weather. The examiner found mild degenerative changes in the right ankle based on x-ray. She opined that it is less likely than not that the Veteran's right ankle disability is related to service. Her rationale indicated that there was no evidence of fracture and minimal degenerative changes found in the right ankle. These findings did not support a residual disability in the right ankle while in the military or a chronic disability upon separation. The Board finds the Veteran injured his right ankle, diagnosed as a sprain, in service; however, medical evidence in the record indicates that his current degenerative arthritis of the right ankle is not related such service. The Veteran's November 1967 separation examination was absent for any right ankle condition. The Veteran did not manifest with degenerative arthritis of the right ankle within the one year presumptive period following separation. Additionally, there is no probative evidence showing continuity of symptomatology to support recurrent symptoms of a right ankle disability as the Veteran did not seek treatment involving his right ankle until over 35 years after separation from service. As such, service connection for a right ankle disability is not warranted. Broken right leg The Veteran contends that he broke his leg in service while playing football. He testified that he was treated by his teammates, who were medics, for a hairline fracture of the right leg on the field after the injury. He stated that he did not receive an x-ray following his injury. With respect to element (1), a current disability, the Veteran does not have a current right leg fracture or residuals from right leg injury. Service treatment records do not have any record of treatment for a right leg fracture and post-service medical treatment records are also silent any right leg disability related to fracture. Without a current disability, in this case a right leg disability, the Veteran is not entitled to service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, the Board finds that service connection is not established for a right leg fracture. Cervical arthritis The Veteran contends that he injured his neck in service while playing football. He testified that he has had recurrent neck pain since the injury. With respect to element (1), a current disability, the Veteran does not have a diagnosis of cervical arthritis or residuals from a neck injury. Service treatment records do not have any record of treatment for a neck injury and post-service medical treatment records are also silent any neck disability. Without a current disability, in this case a neck disability, the Veteran is not entitled to service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, the Board finds that service connection is not established for cervical arthritis or a neck disability. Should any neck symptoms result in disability in the future, the Veteran is certainly free to re-apply for service connection. ORDER A disability rating of 10 percent, but not greater, for scar and residuals from an abdominal knife wound is granted. Service connection for pancreatitis, as secondary to abdominal knife wound, is denied. Service connection for a right knee condition is denied. Service connection for a left knee condition is denied. Service connection for a broken right ankle is denied. Service connection for a broken right leg is denied. Service connection for cervical arthritis is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs