Citation Nr: 20003841 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 18-12 229 DATE: January 16, 2020 ORDER Entitlement to a compensable rating for scars of the hands is denied. Entitlement to service connection for rupture of right achilles tendon with residuals is denied. FINDINGS OF FACT 1. The scars on the Veteran’s hands do not limit function and are neither painful nor unstable. 2. The preponderance of the evidence of record is against finding that the Veteran has a diagnosis of a rupture of the right achilles tendon with residuals. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for scars on the hands are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.118, DC 7805 (prior to and after August 13, 2018). 2. The criteria for service connection for a rupture of right achilles tendon with residuals are not met. 38 U.S.C. §§ 101, 1110, 1131, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service to include the periods from September 1985 to January 1986, May 1989 to September 1994, January 2001 to August 2001, July 2002 to July 2003, February 2006 to June 2007, and February 2011 to October 2011. He also had service in the Reserves. While the Veteran in his October 2015 notice of disagreement contended that he was not examined for secondary effects of his scars, his scars were adequately evaluated under the applicable rating criteria. See VA examinations dated in September 2015 and October 2017. In a brief in October 2019, the Veteran’s representative contended that a new examination is necessary because the severity of the Veteran’s service-connected disability has changed. However, the representative did not describe how the Veteran’s scars on the hands worsened and thus the evidence does not show that the Veteran’s hand scars increased in severity since his last VA examinations in September 2015 and October 2017. Further, to the extent that the Veteran in the January 2018 Form 9 Appeal contended that the VA examiner provided an inadequate examination regarding his achilles tendon, the Board finds the examination is fully adequate as the examiner examined the Veteran and considered his medical history in rendering the opinion. Thus, new VA examinations are not warranted. Further, the Veteran in his January 2018 Form 9 Appeal requested that his claim for a compensable rating for hand scars be amended to reflect the issue of service connection for residuals of hand injury as a result of a military parachuting accident, of which the scars are service connected, to include damage to tendons/muscles and the effects thereof including pain. Thus, the Veteran has raised the issue of entitlement to service connection for residuals of hand injury, other than scars, as a result of a military parachuting accident. The Veteran is hereby advised that a claim for benefits filed after March 24, 2015, must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160.   Issue 1: Entitlement to a compensable rating for scars of the hands. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s scars of the hands are rated as zero percent (noncompensable) disabling under Diagnostic Code (DC) 7805, which provides that any scars (including linear scars) should have disabling effects not considered in a rating provided under DCs 7800, 7801, 7802, and 7804 evaluated under an appropriate diagnostic code. Diagnostic Code 7800 is inapplicable as it pertains to scars of the head, face or neck. The Board notes that VA amended the criteria for rating skin disabilities during the claim period, effective from August 13, 2018. With regard to the effective date of the new criteria, VA indicated in the Supplementary Information to the Final Rule that its “intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied.” 83 FR 32592 (July 13, 2018). The Veteran’s claim in this case was pending prior to the August 13, 2018 effective date and therefore the Board will consider both the old and new criteria and apply the more favorable criteria. In order to warrant a compensable rating under the old rating criteria, a scar would need to be deep (associated with underlying soft tissue damage) and nonlinear and affect an area or areas exceeding at least 6 square inches (39 square centimeters) (DC 7801); be superficial (not associated with underlying soft tissue damage) and nonlinear and affect an area or areas of 144 square inches (929 square centimeters) or greater (DC 7802). A compensable evaluation under DC 7804 requires one or two scars that are unstable or painful, a 20 percent evaluation for three or four scars that are unstable or painful, and a 30 percent evaluation for five or more scars that are unstable or painful. Note (1) to this diagnostic code provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) to this diagnostic code provides that if one or more scars are both unstable and painful, 10 percent is added to the evaluation based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable. 38 C.F.R. § 4.118, DCs 7801-7805 (in effect prior to August 13, 2018). The Board notes that the provisions of DC 7804 were not changed and the provisions of DC 7805 were not substantively changed. Id. In order to warrant a compensable rating (10 percent) under the new rating criteria, a scar would need to be associated with underlying soft tissue damage and affect an area or areas exceeding at least 6 square inches (39 square centimeters) (DC 7801); not be associated with underlying soft tissue damage, but affect an area or areas of 144 square inches (929 square centimeters) or greater (DC 7802) (in effect from August 13, 2018). 38 C.F.R. § 4.118. The pertinent findings show that on VA scar examination in September 2015, the examiner noted that the Veteran during service had a parachute accident with trauma to the skin of both hands. The examiner found that the scars on the Veteran’s extremities were not painful or unstable. The physical findings show that the Veteran had three scars on the dorsum of the right hand. As for the linear scars, the first scar was 1.70 centimeters, the second scar was 1.00 centimeter, and the third scar was 2.00 centimeters. The examiner also checked the box indicating that the scars were superficial non-linear with the first scar measuring 1.70 by .30 centimeters, the second scar was1.00 by .50 centimeters and the third scar was 2.00 by .10 centimeters. While the examiner checked both the box for linear and superficial non-linear scars the overall context of the examiner’s examination shows that he determined that the Veteran only had three scars as he specified that the Veteran had 3 scars on the dorsum of the right hand. Medical reports must be read as a whole and in the context of the evidence of record. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). As for the left hand, the exam found one scar on the dorsum of the hand that was superficial non-linear and was 1.40 by.10 centimeters. There were no deep non-linear scars found on the upper extremities. The examiner determined that the approximate total area of superficial nonlinear scars was 1.20 centimeters square in the right upper extremity and 1.40 centimeters square in the left upper extremity. The examiner checked the box indicating that the Veteran had scars that caused limitation of function based on the Veteran’s contentions that the area around the scar of the left hand was numb, the right hand felt stiff and could not be stretched as normal, and muscle-strength on the right side was impaired when pressing both hands. However, the examiner opined that although the symptoms the Veteran reported may be related to his trauma in service, the scars do not account for the symptoms that the Veteran described. On VA hand and finger examination for the right hand in October 2017, the examiner reviewed claims folder and found that there was no current objective evidence to support a diagnosis of the claimed right hand condition to include right hand injury with weakness. The examiner noted that the Veteran reported he suffered a parachute jump accident during service whereby he was dragged to the ground and sustained multiple injuries including lacerations and abrasions on his right hand. He was placed on antibiotics and the lacerations in the right hand were sutured which resulted in stable hypo-pigmented smooth scars in the base of the right thumb and second to fourth right knuckles. During the examination the Veteran complained of mild pain and weakness of the right knuckles and the examiner noted that bilateral hand x-rays from 2004 and 2008 were all normal. The examiner determined that physical findings show range of motion in both hands was normal and there was no evidence of pain with the use of the hand or objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive- use testing in both hands and there was no additional loss of function or range of motion after three repetitions. Muscle strength testing was 5/5 in both hands. The examiner found that the Veteran had a right hand scar at the base of the right thumb that was 1 centimeter by .5 centimeters, a scar at the second right knuckle that was 1 centimeter by .7 centimeters, a scar at the third right knuckle that was 1 centimeter by .5 centimeters, and a scar at the fourth right knuckle that was 1 centimeter by .5 centimeters. The examiner noted that the scars were the result of the previous injury, however they were healed and not problematic or painful. The examiner concluded that there were “no objective findings to support a current condition related to the previous injury/scars.” Other evidence during the appeal period is cumulative of the findings discussed above. See, e.g., March 2016 Report of General Information. The evidence discussed above does not more nearly approximate the criteria for a compensable rating under DC 7805, as the September 2015 VA examiner opined that the scars did not account for the symptoms the Veteran described, including numbness and stiffness, and the October 2017 VA examiner determined that the scars were well healed and not problematic. Similarly, the findings also do not more nearly approximate a compensable rating under Diagnostic Code 7804 as the weight of the evidence discussed above shows that the Veteran’s scars on the hands were not painful or unstable. The evidence also does not more nearly approximate the criteria under the old and new version of DCs 7801 and 7802 as the scarring was not deep, was not associated with underlying soft tissue damage, was not unstable, did not involve an area or areas of at least 144 square inches (929 square centimeters), and did not have any other disabling effects. The Board has considered the Veteran’s reports of pain. The Board notes that the Veteran is competent to describe pain and discomfort and the Board finds that his statements are credible. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, however, the Board finds that the objective medical findings by skilled professionals are more persuasive, which, as indicated above, do not support a compensable disability rating for scars of the hands. Furthermore, as addressed above, in the January 2018 Form 9 Appeal, the Veteran has related symptoms, to include pain, to residuals of his parachute accident during service other than the service-connected scars. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the Veteran’s claim must be denied. See 38U.S.C. §5107(b). Issue 2: Entitlement to service connection for rupture of right achilles tendon with residuals. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). The term “active military, naval, or air service” is defined to include active duty, any period of active duty for training (ACDUTRA)/ADT during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training (INACDUTRA)/IDT during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty.” 38 U.S.C. § 101 (24); see also 38 C.F.R. § 3.6(a). For periods of ACDUTRA, service connection may be granted for disability resulting from injuries or diseases incurred or aggravated during such periods. For periods of INACDUTRA, service connection may be granted for disability resulting only from injuries incurred or aggravated during such periods, but not for disability resulting from diseases. 38 U.S.C. § 101 (22), (24). In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board concludes that the Veteran does not have a current diagnosis pertaining to a rupture of right achilles tendon with residuals and has not had one during the pendency of the claim or recent to the filing of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service treatment records show that during a period of INACDUTRA in March 2004, the Veteran incurred a right foot sprain, and the Regional Office denied the Veteran’s claim of service for a right ankle disability in an October 2004 rating decision based on the determination that no permanent residual of chronic disability was shown. However, the Veteran’s current claim of service connection for rupture of a right achilles tendon with residuals is based on an injury dated on June 29, 2012 during a period of INACDUTRA. See November 2014 claim and October 2015 notice of disagreement. Although the Veteran in the October 2015 notice of disagreement indicated that he incurred a ruptured achilles tendon on July 31, 2015, he did not fully provide an accurate date as his service treatment records include an entry on July 31, 2012 that shows the injury was on June 29, 2012 during a period of INACDUTRA whereby the Veteran had pain in the achilles heel due to injury to the leg during a rifle run, which became more severe during his annual training during a period of annual training from July 5 to 31. His service personnel records show that he retired from the Reserves in January 2015 due to twenty or more years of Reserve duty. Other service treatment records in July 2012 provide an impression of achilles tendon injury probable partial tear and in August 2012 provide an assessment for a right leg strain and right ankle sprain of achilles tendon. A Physical Profile in May 2013 shows rupture for right achilles tendon. On VA examination in October 2017, the examiner determined that the Veteran did not have a current diagnosis. The examiner considered the Veteran’s medical history discussed above and noted that service treatment records in August 2012 showed improvement of the Veteran’s injury and he returned to his duties. The examiner pointed out that a x-ray on June 29, 2012 showed a normal right ankle. The examiner acknowledged that the Veteran complained of low grade pain with stiffness in the right achilles tendon while running, however the examiner opined that there was no objective evidence to support a diagnosis of a claimed right ankle disability. Thus, the examiner opined that the disability was less likely than not incurred in or caused by service. The Board finds the October 2017 VA examination to be probative as the examiner reviewed the claims folder and considered the history and nature of the Veteran’s claimed rupture of the right achilles tendon with residuals. This opinion is uncontroverted by the other medical evidence of record. To the extent that the Veteran has right achilles tendon pain, there is no evidence that the pain amounts to a functional impairment. To establish the presence of a disability, the Veteran needs to show that pain reaches the level of a functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Consideration has also been given to the Veteran’s contention that he has a right achilles tendon disability due to service. In his January 2018 Form 9 Appeal, the Veteran stated that he had pain and stiffness in his right leg along with a burning sensation with movement in the right calf. However, while lay persons are competent to provide opinions on some medical issues, the specific issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disability at issue is not a condition that is readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Consequently, the Board gives more probative weight to the competent medical evidence, to include the October 2017 VA opinion discussed above.   In reaching the foregoing decision, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim for service connection for rupture of right achilles tendon, such is not applicable and his claim must be denied. 38 U.S.C. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mac, 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.