Citation Nr: 19128098 Decision Date: 04/11/19 Archive Date: 04/10/19 DOCKET NO. 17-18 132 DATE: April 11, 2019 ORDER New and material evidence having been received, reopening of the claim of entitlement to service connection for a right hand middle finger disability is granted. Entitlement to a compensable rating for right foot scar is denied. REMANDED Entitlement to service connection for a right hand middle finger disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a dental disability, for Veterans’ Administration compensation purposes, is remanded. Entitlement to an initial compensable rating for migraine headache disability is remanded. FINDINGS OF FACT 1. An unappealed January 2013 rating decision denied entitlement to service connection for right hand torn ulnar collateral ligament (UCL). 2. The evidence received since the January 2013 rating decision is new and raises a reasonable possibility of substantiating the claim for entitlement to service connection for a right hand middle finger disability. 3. Throughout the appeal period, the Veteran’s right foot scar has not been manifested by any characteristics of disfigurement, has not been painful or unstable, and has not caused any disabling effects. CONCLUSIONS OF LAW 1. The January 2013 rating decision denying the Veteran’s claim for service connection for right hand torn UCL is final. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 20.1103 (2018). 2. New and material evidence has been received sufficient to reopen a claim of entitlement to service connection a right hand middle finger disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for a compensable rating for right foot scar have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.7, 4.118, Diagnostic Code 7804 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from October 1999 to October 2003. This case comes before the Board of Veterans’ Appeals (Board) on appeal from September 2005 and May 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona and Fort. Harrison, Montana, respectively. The RO in Houston, Texas currently has jurisdiction over the Veteran’s claim. The Board has re-characterized and broadened the service connection claim for status post bone graft, mouth, to a claim for a dental disability. See Clemons vs. Shinseki, 23 Vet. App. 1 (2009). The Board notes that a September 2005 rating decision denied, in pertinent part, entitlement to service connection for status post bone graft of the mouth. In September 2005, the Veteran field what the Board will liberally construe as a timely Notice of Disagreement (NOD) with respect to that issue. In April 2007, January 2010, and January 2013 rating decisions, the RO determined the that new and material evidence had not been received to reopen the Veteran’s claim of entitlement to service connection for status post bone graft of the mouth. However, as noted above, the Veteran timely filed a timely NOD to the September 2005 denial and, consequently, his service connection claim for status post bone graft of the mouth has not yet been finally adjudicated. Therefore, the claim is not a new and material evidence claim, but rather a claim of entitlement to service connection, and the Board has recharacterized the appeal as reflected on the title page. In Mays v. Brown, 5 Vet. App. 302 (1993), the United States Court of Appeals for Veterans Claims (Court) held that a claim for service connection for a dental disability is also a claim for outpatient dental treatment. In this case, the Agency of Original Jurisdiction (AOJ) has not adjudicated the issue of entitlement to service connection for a dental disability for the purpose of outpatient treatment. Accordingly, the issue of entitlement to service connection for a dental disability for the purpose of outpatient treatment has been raised by the record, but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b). Claim to Reopen Right Hand Middle Finger Disability In a January 2013 rating decision, the Veteran was denied entitlement to service connection for right hand torn UCL on the basis that it was not related to service. The Veteran did not appeal that decision. The evidence that has been received since the January 2013 rating decision includes various VA medical records, private medical records, VA examinations, as well as relevant lay statements. The Board finds that the additional evidence is new and material. In this regard, it is neither cumulative nor redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the claim. Therefore, the claim of entitlement to service connection for a right hand middle finger disability, is reopened. Increased Rating Claim Right Foot Scar The Veteran asserts that he is entitled to a higher rating for his right foot scar, as his symptoms are worse than those contemplated by the currently assigned rating. A May 2015 VA examination report indicates that the Veteran had a right foot linear scar that was neither painful nor unstable, and measured at 1 centimeter (cm) x 0.2 cm. The examiner noted that the Veteran’s scar was not due to burns. The VA examination report notes that there were no superficial non-linear scars; no deep non-linear scars; and no hyperpigmentation was noted. The examiner reported that the scar did not result in limitation of function, and no other pertinent findings were noted. A review of the record shows that the Veteran receives treatment for various disabilities. However, there is no indication from the record that his right foot scar is worse than noted at the VA examination of record. The Board finds that the Veteran is not entitled to a compensable rating for his right foot scar disability. In this regard, there is no evidence that the Veteran’s right foot scar is deep, non-linear, or of an area of 6 square inches or greater. Moreover, there is no evidence that the scar is painful or unstable. Therefore, the Board finds that a compensable rating is not warranted at any point during the period on appeal. 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2018). The Board finds that the Veteran would not be entitled to a higher rating under any other applicable diagnostic codes for the period of appeal. In that regard, the evidence does not show that the Veteran’s scar is unstable, causes limited motion, or exceeds 12 inches. Moreover, the evidence shows that the Veteran has one scar, and that it is unrelated to a burn. Thus, the evidence of record demonstrates that the Veteran’s right foot scar is productive of the symptomatology associated with a noncompensable rating under Diagnostic Code 7804 and a higher rating under another diagnostic code is not warranted. 38 C.F.R. § 4.118, Diagnostic Codes 7800-7803, 7805 (2018). Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a compensable rating for a right foot scar is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. Service Connection Right Hand Middle Finger Disability At a May 2015 VA examination, the examiner reported that the Veteran was diagnosed with torn ligaments in the right hand and fingers in 2001. The examiner reported that the Veteran experienced right hand pain and swelling. The examiner opined that the Veteran’s right hand disability was less likely than not related to active service. In support of this conclusion, the examiner commented that the Veteran’s medical records did not contain treatment or a diagnosis of a right hand injury. The Board finds that the opinion is inadequate to decide the claim. In this regard, the examiner cannot rely solely on the absence of treatment or diagnoses in a Veteran’s STRs and medical records as a basis for a negative medical opinion. Therefore, the Board finds that addendum opinion must be obtained to address the nature and etiology of the Veteran’s claimed right hand disability. Sleep Apnea The Veteran asserts that he has sleep apnea that is related to his active service. The record reflects numerous treatment notes showing that the Veteran likely had sleep apnea, although a full sleep study had not yet been performed. Moreover, various treatment records reflect sleep impairment. To date, no VA medical opinion has been obtained with regard to the Veteran’s claimed sleep apnea. Therefore, the Board finds the Veteran should be afforded a VA examination to address the nature and etiology of his claimed sleep apnea. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Dental Disability The Veteran asserts that he has a dental disability that was caused or aggravated by his period of active service. The Veteran’s STRs are replete with treatment for dental conditions. Moreover, post-service treatment records reveal numerous complaints related to dental conditions. Additionally, the record reflects that the Veteran’s dental disability may have pre-dated his period of active service. To date, no VA medical opinion has been obtained with regard to the Veteran’s claimed dental disability. Therefore, the Board finds the Veteran should be afforded a VA examination to address the nature and etiology of his claimed dental disability. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Increased Rating Claim Migraine Headaches In May 2015, the Veteran was afforded a VA examination to determine the nature and etiology of his migraine headaches. At that time, the Veteran reported that he experienced severe headaches approximately 3 to 4 times per week. The examiner reported that prostrating attacks of migraine headache pain occurred less than once every two months. The examiner also reported that the Veteran experienced very frequent prostrating and prolonged attacks of migraine pain. The Board finds that the May 2015 VA examination report is inadequate to decide the claim. In this regard, the Board finds that the May 2015 VA examination report is internally inconsistent, as the examiner indicated that the Veteran experienced prostrating attacks of migraine pain less than once every two months, yet the examiner reported that the Veteran also experienced very frequent prostrating and prolonged attacks of migraine pain. Moreover, the examiner did not adequately address the Veteran’s lay statements regarding the frequency of his headaches. Further, the examination was associated with the Veteran’s initial claim for service connection, and there is limited information with regard to the current level of severity of the symptomatology associated with the Veteran’s disability. Therefore, the Board finds that the Veteran should be afforded a new VA examination to address the nature and etiology of migraine headache disability. The matters are REMANDED for the following action: 1. Obtain all VA treatment records for the Veteran dated from May 2017 to the present and associate them with the claims file. 2. Return the claims file to an appropriate VA examiner in order to obtain an opinion as to the nature and etiology of the Veteran’s claimed right hand middle finger disability. If a new examination is deemed necessary to respond to this request, one should be scheduled. The examiner should review the claims file and provide an addendum opinion addressing whether it is at least as likely as not (50 percent probability or more) that the any currently present right hand middle finger disability began in service, was caused by service, or is otherwise etiologically related to his active service. The examiner must specifically address the Veteran’s lay statements regarding the onset and continuity of his symptoms, to include his report that he injured his right hand during an in-service rock climbing incident. 3. Schedule the Veteran for a VA examination to address the nature and etiology of his claimed sleep apnea. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present sleep apnea, began in service, was caused by service, or is otherwise etiologically related to active service. 4. Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of his claimed dental disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should identify all current dental disabilities, specifically to include any missing teeth, listed by tooth number. Specify whether there is chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, temporomandibular articulation or limited jaw motion, loss of the ramus, loss of the condyloid process, loss of the hard palate, loss of the maxilla, or malunion or nonunion of the maxilla, as contemplated by 38 C.F.R. § 4.150 (2018). The examiner should then provide the following opinions: a) Does the Veteran have a dental disability, to include loss of teeth or dental decay, that clearly and unmistakably existed prior to his active service? If so, was any such pre-existing dental disability clearly and unmistakably NOT aggravated by active service? b) With regard to any dental disability NOT found to clearly and unmistakably exist prior to the Veteran’s active service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently present dental disability had its onset during the Veteran’s active service, or is otherwise etiologically related to such. c) For any missing tooth, is it at least as likely as not that such was the result of any in-service trauma, such as being elbowed or hit in the jaw or face, or in-service disease such as osteomyelitis. d) Additionally, is it at least as likely as not that the loss of any given tooth was the result of loss of substance of the body of the maxilla or mandible, due to service trauma or disease such as osteomyelitis. e) Alternatively, is the loss of any given tooth due to periodontal disease. (Continued on the next page)   A complete medical rationale for all opinions expressed must be provided. 5. Schedule the Veteran for a VA examination by an examiner with appropriate expertise to address the current level of severity of all impairment resulting from his migraine headache disability in accordance with VA rating criteria. The claims file must be made available to and reviewed by the examiner. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. O’Donnell, Associate Counsel