Citation Nr: 19159167 Decision Date: 07/31/19 Archive Date: 07/30/19 DOCKET NO. 13-34 306 DATE: July 31, 2019 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to an initial evaluation in excess of 10 percent for a left hip scar associated with polycystic kidney disease is denied. REMANDED Entitlement to an initial compensable evaluation for polycystic kidney disease is remanded. FINDINGS OF FACT 1. The Veteran's sleep apnea was not incurred in and is not otherwise related to his active service. 2. The Veteran’s singular left hip scar is painful and superficial; however, it is not unstable, deep and nonlinear, 144 sq. inches (929 sq. cm.) or greater in area, or manifested by any other disabling effects. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2018). 2. The criteria for an initial evaluation in excess of 10 percent for a left hip scar associated with polycystic kidney disease have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1- 4.3, 4.7, 4.10, 4.118, Diagnostic Code (DC) 7804 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1978 to October 1982. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which granted service connection for a left hip scar and polycystic kidney disease and denied service connection for sleep apnea. The Veteran submitted a Notice of Disagreement in December 2010; a Statement of the Case was issued in October 2013; and a substantive appeal was received in December 2013. 1. Entitlement to service connection for sleep apnea. The Veteran seeks service connection for sleep apnea. He has made no specific assertions as to why he believes service connection is warranted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). A VA treatment record shows that the Veteran was diagnosed with sleep apnea in February 2010. The diagnosis was confirmed by a sleep study. Thus, the Veteran has a current disability. The Veteran has not provided any statements regarding the onset of his sleep apnea. The service treatment records (STRs) do not contain any report of problems sleeping. On the separation Report of Medical Examination, all body systems were evaluated as normal. Post-service treatment records do not show complaints, treatment, or diagnoses of sleep apnea until 2009, more than 20 years after separation from service. In short, STRs reflect no complaints, treatment, and/or diagnoses of a sleep disability; the first post-service evidence of sleep problems is not shown until more than 20 years after separation from service; and the Veteran, himself, has not endorsed in-service onset and/or continuity of symptoms, nor has he presented any other evidence (lay or medical) to suggest that his sleep apnea is related service. The Board acknowledges that the Veteran has not been afforded a VA examination to aid in substantiating this claim; however, given the lack of evidentiary support indicating an in-service incurrence or evidence indicating that there may be a nexus between the current disability and service, the Board finds that one is not warranted. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In light of the above, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran's current sleep apnea was incurred in or is otherwise related to his active service. There is no doubt to be resolved; service connection for sleep apnea is not warranted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an initial compensable evaluation for a left hip scar. The Veteran seeks a higher initial rating for his service-connected left hip scar. He has advanced no specific argument as to why he believes a higher rating is warranted. 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. Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Evidence to be considered in an appeal from an initial disability rating is not limited to current severity, but will include the entire period of the disorder. Additionally, it is possible for a veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's left hip scar is rated under Diagnostic Code 7804, as painful or unstable scars. Diagnostic Code 7804 provides a 10 percent rating for one or two scars that are unstable or painful. A 20 percent rating is applicable for three or four scars that are unstable or painful. A 30 percent rating will be assigned for five or more scars that are unstable or painful. 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. The Veteran was afforded a VA scar examination in April 2010. He reported that he did not receive any treatment for the scar, nor did he use any special creams or lotions. He stated that the “back part of the scar seems to bother him a little bit.” Objective examination revealed a scar on the left flank, extending from the anterior axillary line back to the left side of the low back. The scar was 25 centimeters long, superficial, pink in color, flush, and not elevated or depressed. The scar was not exquisitely tender but he did report a little pain in the back area around the scar. There were no skin breaks. There was no limitation of motion due to the scar. There was no keloidal formation, edema, or inflammation. There was no induration or inflexibility. It was not disfiguring. The assessment was mildly tender left flank surgical scar. VA treatment records are silent for complaints or treatment relating to the service-connected scar. Again, the Veteran has not submitted any evidence – lay or medical – indicating that the scar has worsened since the last VA examination, or is more severe than the currently assigned 10 percent rating. Given the medical evidence of record, there is only one scar, and the scar was found to be painful but not unstable, the Board finds that a 10 percent rating under Diagnostic Code 7804 is warranted. As there is one scar, an increased rating of 20 percent is not warranted. Additionally, because the scar is not both painful and unstable, the additional 10 percent rating available under Note (2) of the diagnostic code is not applicable in this case. The Board has considered whether a higher or separate rating could be assigned under any alternate diagnostic codes, but finds that application of other diagnostic code is not warranted in this case. Indeed, there is no evidence that the scar is of the head, face or neck; that it is deep and non-linear; that it is superficial and non-linear with an area of 144 square inches (929 sq. cm.) or greater; or that it is manifested by any other disabling effects so as to warrant higher or separate ratings under DCs 7800, 7801, 7802, or 7805, respectively. For the reasons stated, the Board finds that, for the entire period on appeal, the record does not contain supporting medical findings to warrant a disability rating in excess of 10 percent for his service-connected left hip scar. REASONS FOR REMAND 1. Entitlement to an initial compensable evaluation polycystic kidney disease is remanded. VA treatment records dated in 2013 suggest that the service-connected polycystic kidney disease has increased in severity since the Veteran was last examined by VA. See May 2013 VA Treatment Records (documenting urinary symptoms of dribbling, hestitancy, and a history of hematuria.). The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his polycystic kidney disease. The matters are REMANDED for the following action: 1. Obtain all outstanding records of VA treatment, dated from 2013 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected polycystic kidney disease. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. Any indicated studies should be performed. The examiner shall utilize the current DBQ. 3. Thereafter, and after any further development deemed necessary, the appeal should be readjudicated. If the benefits sought on appeal are not granted, the Veteran should be provided with a Supplemental Statement of the Case and afforded the appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Hoeft, Counsel 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.