Citation Nr: 19136643 Decision Date: 05/13/19 Archive Date: 05/10/19 DOCKET NO. 15-15 777 DATE: May 13, 2019 ORDER Entitlement to service connection for bilateral pes planus is denied. Entitlement to service connection for a right wrist fracture with arthritis and deformity is denied. Entitlement to a 10 percent rating for a status post laceration right hand normal healed surgical scar is granted. FINDINGS OF FACT 1. The Veteran’s bilateral pes planus pre-existed service and was not aggravated therein. 2. A current right wrist disability of arthritis is not established. 3. The Veteran’s right-hand scar measures 4.6 cm x 0.5 cm and is painful and tender. CONCLUSIONS OF LAW 1. The criteria for service connection for pes planus have not been met. 38 U.S.C. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. 2. The criteria for service connection for right wrist arthritis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for a 10 percent rating for a status post laceration right hand normal healed surgical scar have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.16, 4.31; 38 C.F.R. § 4.118, Diagnostic Code (DC) 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1969 to September 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified at a hearing before the undersigned. A transcript of that hearing has been associated with the claims file. Additional evidence was added to the file following certification of the appeal to the Board. However, this evidence is either not relevant and/or essentially duplicative of evidence that had been previously submitted and considered by the AOJ and a waiver is not necessary. See 38 C.F.R. § 20.1304. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in active service and for in-service aggravation of a preexisting injury or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Every veteran is presumed to be in sound condition on entry into service, except for those disabilities or disorders noted on examination for entry, or where clear and unmistakable evidence establishes that an injury or disease pre-existed service and was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Cases in which the preexisting condition is noted upon entry into service, and cases in which the preexistence of the condition must otherwise be established, are to be distinguished. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Horn v. Shinseki, 25 Vet. App. 231, 234(2012); see also 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b) (presumption of sound condition). If a preexisting disability is noted upon entry into service, a Veteran cannot bring a claim for service connection for that particular disability, but the Veteran may bring a claim for service-connected aggravation of that disability. U.S.C. § 1153 (2012); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994). A preexisting injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (a) (2017). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. See Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994). 1. Entitlement to service connection for bilateral pes planus The Veteran seeks service connection for his bilateral pes planus. For the reasons that follow, the Board finds that service connection is not warranted. No medical documentation has been provided to support a current diagnosis of bilateral pes planus. However, the evidence of record shows that bilateral pes planus pre-existed service. An April 1968 pre-induction examination and an April 1969 entrance examination shows the Veteran’s feet were observed to be abnormal; pes planus and a score of “2” on the PULHES profile for the lower extremities was noted. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the ‘PULHES’ profile reflects the overall physical and psychiatric condition of the Veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). In light of these findings, the Veteran is not presumed sound upon entrance as it relates to his feet. 38 C.F.R. § 3.304. As noted above, a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306. However, the evidence shows there was no increase in the severity of the preexisting pes planus disability during service. The Veteran’s service treatment records do not show that he sought treatment for pes planus. At his separation examination in August 1970 a clinical evaluation of his feet showed they were normal. A score of “1” on the PULHES profile for the lower extremities was noted. There are no VA treatment records or private treatment records in the claim file that show any treatment for pes planus after service. In October 2018, the Veteran testified at a Board hearing. He reported that he was not issued any special shoes or accommodations during service. He reported that he experienced cramps when exercising and marching but took it for granted that maybe he was being overworked from physical training. He also reported that he never noticed any issue with his feet until after he had gotten out of service. He was unable to recall whether he had complained about his feet to any primary care physicians after service. He reported that no doctors sent him for orthotics or any other type of device such as special shoes. Based on the evidence, service connection is not warranted. Service treatment records do not show any complaints or treatment related to pes planus. The Veteran’s PULHES profile shows the Veteran’s feet went from a ‘2” at entrance to a “1” at separation. This does not suggest an increase in symptoms. The Veteran also testified that he never noticed any issue with his feet until after he had gotten out of service. It is clear that there was no increase in the pre-existing pes planus disability during service. Although the Veteran can report what he saw or experienced firsthand, he has not been shown to possess the education, training, and experience to offer medical opinions on complex matters such as the ability determining the severity of pes planus, or to attest to the natural progression of it. Further, the clinical finding of pes planus at entrance (but not at discharge) weighs against his lay assertion. Accordingly, his assertion is not competent or probative evidence that his bilateral pes planus was incurred during service, or permanently aggravated therein. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As a whole, the Board finds that the medical evidence is more probative than the unsupported lay testimony. In short, the competent and credible evidence of record does not reflect a permanent aggravation of the preexisting bilateral pes planus during service. As the preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved and service connection for bilateral pes planus is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for a right wrist fracture with arthritis and deformity is denied. Service treatment records show an injury to the Veteran’s hand in April 1970. A treatment note suggests he suffered a laceration of the right wrist with fracture at site. He was given a splint for immobilization and transported for medical evacuation. A follow-up note indicates he was hospitalized for six days. A physical examination found a laceration dorsum of the right hand with intact tendon and neurologic functions. X-rays revealed no fracture or arthritis. The discharge diagnosis was a laceration of the right hand. Post-service VA treatment records are negative for findings of arthritis. The medical evidence shows clinical findings related to right hand tenosynovitis (claimed as right hand trigger finger with arthritis, fragment of torsion dystonia, and loss of strength/use) for which the veteran is already service-connected. At the hearing for the undersigned, the Veteran indicated that he did not receive any current treatment for his wrist and that he is unable to recall whether a clinician ever told him that he has arthritis from the original injury in service. While the Veteran believes he has a disability affecting his right wrist, specifically arthritis, he is not competent to provide such a diagnosis. Determining the nature of an underlying clinical diagnosis for symptoms of pain is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing such as X-rays and MRIs. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The medical evidence shows that he has right wrist symptoms related to his service-connected right hand tenosynovitis. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Where, as in this case, the probative evidence indicates that the Veteran does not have a current diagnosis of a right wrist/hand disorder (other than service-connected right wrist tenosynovitis) for the entire appeal period, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board is mindful of Saunders v. Wilkie, in which the Federal Circuit explained that where pain alone results in functional impairment that affects earning capacity, even if there is no identified underlying diagnosis, it can constitute a disability. See Saunders, 886 F.3d 1356 (Fed. Cir. 2018). While the Veteran has credibly reported right wrist pain, at no time has it been shown or reported to be so severe as to cause functional impairment affecting his earning capacity. Moreover, as noted, the only underlying clinical condition in his right hand/wrist area is shown to be tenosynovitis. The Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for a right wrist arthritis is not warranted. Increased Rating Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a “staged rating” (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007). Under DC 7804, Scar(s), unstable or painful, a 30 percent rating is assigned with five or more scars that are unstable or painful. A 20 percent rating is assigned with three or four scars that are unstable or painful. A 10 percent rating is assigned with one or two scars that are unstable or painful. Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): 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): 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, DC 7804. DC 7800 provides the criteria for rating disabilities due to burn scar(s) of the head, face, or neck. The Veteran’s scar of the right hand is not due to a burn; therefore, this DC is not applicable. DC 7801 provides the criteria for rating disabilities due to scars that are not of the head, face, or neck, and that are deep and nonlinear. Under 38 C.F.R. § 4.118, DC 7801, Note (1), a “deep scar” is defined as one associated with underlying soft tissue damage. Under those criteria, a 10 percent disability rating is assigned for qualifying scars that encompass an area or areas of at least six square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). Higher ratings are available for larger scar areas. 38 C.F.R. § 4.118, DC 7801. DC 7802 provides for a maximum 10 percent rating for superficial and nonlinear scars over an area or areas of 144 square inches or greater. Note (1) states that a superficial scar is one not associated with underlying tissue loss. 38 C.F.R. § 4.118, DC 7802. Other scars are rated based on the limitation of function of the affected part. 38 C.F.R. § 4.118, DC 7805. Where the schedule does not provide a zero percent evaluation for a Diagnostic Code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Effective August 13, 2018, the rating criteria for skin disabilities were revised. See 73 Fed. Reg. 32, 592 (July 13, 2018). As this appeal was pending on August 13, 2018, the revised criteria are applicable, but only for the period beginning August 13, 2018. DC 7804 was not revised, however. 3. Entitlement to a compensable rating for a status post laceration right hand normal healed surgical scar The Veteran’s residual, status post laceration scar of his right hand is currently rated as noncompensable under 38 C.F.R. § 4.118, DC 7804. He contends that a compensable rating is warranted. His claim for an increased rating was received in August 2013. The Veteran was afforded a VA examination in August 2012. The examiner in noted a linear scar on the top of the right hand that measured 4.0 cm by 0.5 cm. There was no pain or instability on examination. The scar did not limit the Veteran’s motion and there was no limitation of function due to the scar. The Veteran was afforded another VA examination for his scar in May 2014. The examiner found a linear scar located in the right dorsum of the right hand that measured 5 cm by 1 cm. On examination it was not painful or unstable and did not involve a total area equal to or greater than 39 square (sq.) cm. The scar did not result in limitation of function and had no impact on the Veteran’s ability to work. The Veteran testified at a Board hearing in October 2018. The Veteran reported that when he was leaving the service the scar would become tender and sensitive when he wore gloves. He testified that he was not prescribed any creams or medications for it. He testified that it was a single scar and that he did feel pain and tenderness when he touched it or if something accidently touched it. The Veteran’s wife testified that the VA did not give or recommend any type of cream, but she applied basic shea butter or cocoa butter to the Veteran’s hands. Based upon the evidence of record, the Board finds the competent and credible evidence is in equipoise as to whether the Veteran’s service-connected right-hand scar is manifested by pain. The Board finds the Veteran’s testimony regarding the presence of tenderness nad pain credible and competent even while acknowledging that VA examiners did not note the presence of pain during objective VA examinations. Therefore, the Veteran is entitled to a 10 percent rating for his scar for the entire appeal period under DC 7804. The rating criteria do not include a specific requirement of pain on objective examination. See 38 C.F.R. § 4.118, DC 7804. A higher rating is not warranted under this Code as there is only one scar that is service-connected. No examination has found the scar to result in limitation of function and no other disabling effect(s) are reported by the Veteran to be present; thus, no higher rating is warranted under DC 7805. A higher rating is not possible under the revised or former DC 7801 as 10 percent is the maximum rating for that Code. A 20 percent disability rating is not warranted under DC 7802 because the competent evidence shows the Veteran’s scar covers an area significantly less than 12 square inches. (Continued on the next page)   Due consideration has been given to Hart v. Mansfield, 21 Vet. App. 505 (2007); however, a higher evaluation is not warranted for the scar for any period of time that is covered by this appeal. See also 38 U.S.C. § 5107 (b). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Barrett The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.