Citation Nr: 20007654 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 11-28 571 DATE: January 29, 2020 ORDER Entitlement to a rating in excess of 10 percent for right shoulder scarring is denied. REMANDED Entitlement to service connection for cubital tunnel syndrome of the right upper extremity as secondary to postoperative residuals of a total right shoulder arthroplasty is remanded. FINDING OF FACT The preponderance of the evidence indicates that the Veteran has not suffered from an unstable scar and has not suffered from more than one painful scar due to his service-connected disability, or that is otherwise related to his active service, during the period on appeal. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a right-shoulder scar have not been met. 38 U.S.C. § 1155; 38 C.F.R. § § 4.118, DC 7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from September 1969 to March 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 rating decision of a VA Regional Office (RO). The record shows that the Veteran testified before Veterans Law Judge Mackenzie at a January 2018 hearing. In November 2018, the Veteran testified before Veterans Law Judge Brown. In an August 2019 letter, the Board informed the Veteran that because he had testified before two different Veterans Law Judges concerning issues before the Board, he had the right to an additional Board hearing, or he could waive this right. In this regard, a Veterans Law Judge who conducts a hearing must participate in making the final determination of the claim involved. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. By law, appeals may be assigned only to an individual Veterans Law Judge or to a panel of not less than three members. 38 U.S.C. § 7102(a). Thus, when a Veteran has had a hearing before two separate Veterans Law Judges covering one or more of the same claims on appeal, a third Veterans Law Judge is assigned to participate in a panel decision with respect to those claims. Accordingly, a third Veterans Law Judge has been assigned to participate in a panel decision in this case. The Veteran was offered the opportunity to testify at another hearing before the third Veterans Law Judge on these issues. Arneson v. Shinseki, 24 Vet. App. 379; 38 C.F.R. § 20.707. A veteran has the right to a hearing before all three Veterans Law Judges involved in the panel decision. In a September 2019 letter, the Veteran waived the right to an additional hearing before a third Veterans Law Judge with respect to these claims. A third Veterans Law Judge has been empaneled and will participate in this Panel Decision, satisfying the applicable laws and regulations. See 38 U.S.C. § 7102(a); 38 C.F.R. § 20.604; Arneson, 24 Vet. App. at 386. Accordingly, the Board will proceed with appellate review of the claims. Finally, the claim for an increased rating for postoperative residuals of a total right shoulder arthroplasty, which was also certified to the Board, was only discussed at one Board hearing. Accordingly, a panel decision is not necessary for that claim, and it will be addressed in a separate decision along with the Veteran’s claim for service connection for a right knee disability. Increased Rating The Veteran asserts that his service-connected right shoulder scarring is more severe than is reflected by his current evaluation. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, however, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that the criteria for the skin were revised, effective August 13, 2018. 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. See Schedule for Rating Disabilities: Skin, 83 Fed. Reg. 32592 (July 13, 2018) (to be codified at 38 C.F.R. § 4). Under the amended Diagnostic Code 7805, other scars evaluated under, and other effects of scars are evaluated under diagnostic codes 7800, 7801, 7802, or 7804. According to Diagnostic Code 7804, which was not revised by the above-mentioned regulation, a 10 percent rating is assignable for one or two scars that are unstable or painful. A 20 percent rating is assignable for three or four scars that are unstable or painful. A 30 percent rating is assignable for five or more scars that are unstable and painful. During a January 2010 VA examination a VA examiner noted that the Veteran had one right shoulder scar. The scar was not painful on examination and there was no evidence of skin breakdown or limitation of function. During a February 2014 VA examination, the VA examiner noted that while the Veteran did have a right shoulder scar it was not painful or unstable. During a March 2014 VA examination, the VA examiner noted that the Veteran had a single right shoulder scar which was unstable or painful. During a July 2014 VA examination, the VA examiner noted that the Veteran suffered from a tender right shoulder scar. The Veteran submitted a Disability Benefits Questionnaire by a private physician in May 2015. The physician noted that the Veteran had four scars on his right upper extremity, but only one of the scars was painful. No scar was unstable. During a February 2018 VA examination for scars, the examiner found that the Veteran suffered from one painful scar at his right upper extremity. No scar was unstable. The post-service VA and private treatment records are negative for any evidence that the Veteran suffers from more than one painful or unstable scar that is connected to his right shoulder disability or which is otherwise related to his active service. The Veteran and his representative argue that the claimant is entitled to a higher rating for his right upper extremity scar. While the Veteran is competent to observe his scar symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluation concerning his scar symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). There is no evidence of record that the Veteran has suffers from more than one painful or unstable scar at any point during the period on appeal. There is also no evidence of scars of the head, face, or neck (Diagnostic Code 7800); or scarring of an area at least 12 square inches but less than 72 square inches (Diagnostic Code 7801). The maximum evaluation assigned under Diagnostic Code 7802 is 10 percent. Based on these facts, the Board finds that the preponderance of the evidence is against the Veteran’s claim. Accordingly, the claim for an increased rating is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Notably, the evidence and contentions of record do not suggest that the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has been raised in this case. Rice v. Shinseki, 22 Vet. App. 447 (2009). REASONS FOR REMAND Entitlement to service connection for cubital tunnel syndrome of the right upper extremity as secondary to postoperative residuals of a total right shoulder arthroplasty, is remanded. The Veteran asserts that his cubital tunnel syndrome of the right upper extremity, which he claimed as peripheral neuropathy, is secondary to his service-connected postoperative residuals of a total right shoulder arthroplasty. The Veteran’s treatment records reflect that he underwent a right total shoulder replacement at a VA facility in February 2014. During a January 2015 VA examination for peripheral nerve conditions, the VA examiner opined that the Veteran’s right-arm nerve damage was less likely than not caused by or aggravated beyond its natural progression by postoperative residuals of a total right shoulder arthroplasty. The examiner stated that, based on a review of the available medical evidence, there was no causal relationship found between the Veteran's service-connected condition of a right shoulder acromioclavicular joint separation and a right upper extremity cubital tunnel syndrome. The examiner found no objective medical evidence to support the claim that a right upper extremity cubital tunnel syndrome was due to or aggravated by postoperative residuals of a total right shoulder arthroplasty. Therefore, it was less likely than not (less than a 50% probability) that the cubital tunnel syndrome was proximately due to or aggravated by postoperative residuals of a total right shoulder arthroplasty. Conversely, an October 2015 private treatment record includes an opinion by a private physician who stated that the cubital tunnel syndrome was most likely related to his operation if the original injury was related to his military service. The Veteran must be afforded another VA examination in order to resolve the discrepancy between these medical etiology opinions. Accordingly, this claim is remanded. The matters are REMANDED for the following actions: 1. Make efforts to obtain all outstanding medical records, in accordance with 38 C.F.R. § § 3.159(c). If the AOJ cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. Thereafter, afford the Veteran a VA examination by an appropriate physician to determine the nature and etiology of the Veteran’s cubital tunnel syndrome of the right upper extremity. The most up-to-date Disability Benefits Questionnaire should be used. The VA examiner is requested to offer an opinion on the following questions: (a.) Is it at least as likely as not (i.e., is there a 50 percent chance or greater that the right carpal tunnel syndrome is proximately due to or the result of postoperative residuals of a total right shoulder arthroplasty? (b.) Is it at least as likely as not that right carpal tunnel syndrome is aggravated beyond its natural progression by postoperative residuals of a right shoulder arthroplasty? Consideration should be given to January 2015 VA examination report and October 2015 physician’s opinion. The VA examiner should state which opinion is most likely correct, and why she/he disagrees with any opinion offered. A clear rationale must be provided for all opinions expressed. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Evan Thomas Hicks, Associate 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.