Citation Nr: 20007154 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 16-40 946A DATE: January 28, 2020 ORDER Entitlement to an effective date earlier than March 10, 2015, for a separate 20 percent disability rating for residual scars of gunshot wounds (GSW) of the left chest and abdomen is denied. REMANDED Entitlement to service connection for kidney stones, including as secondary to service-connected disabilities is remanded. Entitlement to service connection for residuals of surgery for kidney stones is remanded. Entitlement to a temporary total evaluation for convalescence from kidney stone surgery is remanded.   FINDINGS OF FACT 1. A January 1975 rating decision granted service connection for residuals of GSW of the abdomen and chest with retained foreign body that included consideration of associated scars and assigned a 10 percent rating under Diagnostic Code 5319; the Veteran did not appeal the decision and it became final. 2. The Veteran has not alleged there was clear and unmistakable error in the January 1975 rating decision in not assigning separate ratings for residual scars of the GSW of the chest and abdomen. 3. The Veteran initially filed a claim for service connection or a separate rating for residual scars of the GSW to the chest and abdomen on March 10, 2015. 4. It is not factually ascertainable that a separate 20 percent rating for residual scars of the GSW to the chest and abdomen was warranted at any time within a year prior to March 10, 2015. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than March 10, 2015, for a separate 20 percent disability rating for residual scars of GSW of the chest and abdomen have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1971 to May 1974. These matters are on appeal of May 2015 and December 2015 rating decisions. In August 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a Board hearing. A transcript of the hearing is of record.  Although the May 2015 rating decision indicates that service connection was granted for scars of the abdomen and chest as residuals of the Veteran’s service-connected GSW, and the Agency of Original Jurisdiction (AOJ) developed the Veteran’s appeal as one for an earlier effective date for service connection, a review of the January 1975 rating decision that originally granted service connection for residuals of GSW of the chest and abdomen clearly discusses the Veteran’s scars in assessing the severity of the residuals under 38 C.F.R. § 4.73, DC 5319. Therefore, the Board finds that service connection for the Veteran’s scars was granted in the January 1975 rating decision as they were considered in the assessment of the overall severity of his residuals of GSW of the chest and abdomen. The Board further finds that the Veteran’s disagreement is seeking entitlement to a separate 20 percent rating for the residual scars prior to March 10, 2015. Accordingly, the issue has been characterized as shown above. As noted above, a January 1975 rating decision granted service connection for residuals of GSW to the chest and abdomen, which included consideration of his associated surgical and wound scars, and assigned an initial 10 percent rating for muscle injury to Muscle Group XIX under 38 C.F.R. § 4.73, DC 5319, effective May 23, 1974, the day following the Veteran’s discharge from service. The Veteran did not appeal this decision and it became final. In October 2009, the Veteran submitted a claim for an increased disability rating for his residuals of GSW to the chest and abdomen, which was denied in a May 2010 rating decision. Again, the Veteran did not appeal the decision. In June 2010, the Veteran filed a motion alleging clear and unmistakable error in the earlier January 1975 rating decision because service connection was not granted for a splenectomy as a residual of his GSW to the chest and abdomen. An October 2012 rating decision determined that the January 1975 rating decision’s failure to grant service connection for a splenectomy was clearly and unmistakably erroneous and assigned a 30 percent rating, under 38 C.F.R. § 4.117, DC 7706, effective from May 23, 1974. The Veteran did not appeal any aspect of the determination and did not assert that there was clear and unmistakable error in the January 1975 decision regarding how the scars were evaluated. In February 2014, the Veteran submitted a claim for an increased disability rating for residuals of GSW to the chest and abdomen, which was denied in a December 2014 rating decision. Again, the Veteran did not appeal the determination and it became final. On March 10, 2015, the Veteran submitted a claim for service connection for scars as secondary to GSW to the chest and abdomen. A May 2015 rating decision awarded service connection for scars of the abdomen and chest with umbilical hernia, evaluated as 20 percent disabling, effective March 10, 2015. Under VA regulations, the effective date for an increased rating for disability compensation will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). As explained above, the record reflects the Veteran first sought a separate rating for the scar residuals of the GSW of the left chest and abdomen on March 10, 2015. The evidence does not reflect that he filed an earlier claim, either formal or informal, for the scar residuals. Additionally, to the extent the Veteran alleges that the scar residuals should be effective back to May 23, 1974, the day after his discharge from service, the earlier rating decisions described above preclude such an effective date. 38 C.F.R. §§ 3.160(d), 20.1103. These decisions are final decisions and are not subject to revision in the absence of clear and unmistakable error (CUE) in the decisions. 38 U.S.C. §§ 5109A, 7105. The Veteran has not alleged that there is CUE in any of these prior final decisions as related to how the scar residuals of the left chest and abdomen were previously evaluated. See Fugo v. Brown, 6 Vet. App. 40, 44 (1993). Although the Veteran alleged CUE with the January 1975 rating decision and its failure to award service connection for his splenectomy, he did not allege CUE as to how the scars of the left chest and abdomen were evaluated in that decision. Thus, the January 1975 decision and the final October 2012 decision that did not find CUE in the January 1975 decision’s evaluation of the left chest and abdomen scars are legal bars to an effective date prior to the date of the decisions. Therefore, the Veteran is not entitled to an effective date of the day after his discharge from service in May 1974. Therefore, since the Veteran’s separate 20 percent rating for his residual GSW scars was granted effective the date of his claim on March 10, 2015, the earliest effective date he would be entitled to is within one year prior to the date of his claim if there is a factually ascertainable increase in the disability during that time. Thus, the issue is whether there is an ascertainable increase in the severity of the Veteran’s disability to warrant a separate evaluation for his scars within one year prior to March 10, 2015. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating 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 Veteran’s residual scars of a GSW of the chest and abdomen are evaluated under DC 7804 for unstable and painful scars. 38 C.F.R. § 4.118. A 20 percent rating is warranted for three or four scars that are unstable or painful. 38 C.F.R. § 4.118, DC 7804. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id., Note 1. If one or more scars are both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. Id., Note 2. In addition, Diagnostic Code 7805 allows for evaluation under the appropriate code for any disabling effect(s) of scars not considered in a rating provided under DCs 7800-7804. 38 C.F.R. § 4.118, DC 7805. There is no evidence of record that indicates the Veteran is entitled to a separate disability rating for his residual scars of a GSW of the chest and abdomen in the one-year period prior to March 10, 2015. The only relevant medical evidence during that period is the October 2014 VA compensation examination report for muscle injuries. At that time there is no indication that the Veteran’s one surgical scar and two other scars related to the GSW were painful. Objective physical examination of the scars revealed them to be nontender, not adherent to underlying structures, and stable. Indeed, during his later November 2015 VA examination, the Veteran reported that his service-connected scars were “worsened” by his 2015 surgery to remove a kidney stone with the incision at the site of his service-connected abdominal scar. The Veteran underwent kidney stone surgery subsequent to March 10, 2015. Thus, since there is no factually ascertainable date of increase that would warrant a separate rating for the Veteran’s residual scars of a GSW to the chest and abdomen within one year prior to the date the Veteran’s claim for an increased or separate rating for his residual scars was received, the legally correct date of the award of the separate 20 percent disability rating is March 10, 2015. Therefore, the claim for an effective date earlier than March 10, 2015, for the award of a separate 20 percent disability rating for residual scars of a GSW of the chest and abdomen, must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND More information is needed to allow the Board to make a fully-informed decision regarding the remaining claims on appeal. Once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). The Veteran asserts that his kidney stones were either caused or aggravated by his service-connected residuals of a GSW to the chest and abdomen, including the residual scars. A November 2015 VA examiner opined that the Veteran’s diagnosed kidney stones were less likely a result of his inservice GSW or proximately caused by any of the service-connected residuals. However, the examiner did not address whether the Veteran’s service-connected residuals of a GSW of the chest and abdomen aggravated his diagnosed kidney stones. Thus, another opinion should be obtained on remand. The claims for service connection for residuals of kidney stone surgery and for a temporary total evaluation for kidney stone surgery convalescence are inextricably intertwined with the above claim being remanded. Should service connection be granted for this disability, it could have an impact on the Veteran’s claims for service connection for residuals of kidney stone surgery and for a temporary total evaluation. Therefore, the Board finds these issues are inextricably intertwined with his claim for service connection for kidney stones on a secondary basis that is being remanded. Accordingly, the Board finds that a decision on the issues of entitlement to service connection for residuals of kidney stone surgery and for a temporary total evaluation for kidney stone surgery convalescence must be deferred. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (stating that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, to include any outstanding private treatment records. Based on his response, attempt to procure copies of all records which have not previously been obtained from identified treatment sources. 2. Obtain and associate with the electronic claims file any updated VA treatment records from August 2018 to the present. 3. After associating the above records, if any, with the electronic claims file, obtain a supplemental VA medical opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s diagnosed kidney stones. The electronic claims file must be made available to the reviewing clinician, and the clinician must specify in the opinion that the file has been reviewed. Based on review of the pertinent evidence of record, the reviewing clinician should provide opinions as to: (1) whether it is at least as likely as not (50 percent or better probability) that the Veteran’s kidney stones were aggravated by (where aggravation is any increase in severity beyond the natural progress of the disability) his service-connected residuals of GSW of the chest and abdomen. A complete rationale for all opinions must be provided that addresses the Veteran’s assertions. If the examiner determines that the Veteran’s kidney stones were aggravated by his service-connected residuals of a GSW to the chest and abdomen, the examiner should provide a statement regarding the baseline level of the Veteran’s kidney stones prior to the aggravation. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there is any further need for information   necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. J. Wells-Green 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.