Citation Nr: 20046945 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 13-14 459 DATE: July 14, 2020 ORDER 1. Entitlement to service connection for conjunctivitis is denied. 2. Entitlement to a rating in excess of 10 percent for sacral area lipoma postoperative scar is denied. REMANDED 3. Entitlement to service connection for a right knee disability is remanded. 4., 5., 6., 7., 8., 9., 10. Entitlement to service connection for hypertension, pelvic inflammatory disease (PID), and right hand, right forearm, right hip, left knee, and left ankle disabilities is remanded. FINDINGS OF FACT 1. The Veteran is not shown to have had chronic conjunctivitis during the pendency of the instant claim seeking service connection for such disability. 2. During the period on appeal, the Veteran’s sacral area lipoma scar is shown to have been painful; it is not shown to have also been unstable or to have caused any functional limitation. CONCLUSIONS OF LAW 1. Service connection for conjunctivitis is not warranted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. 2. A rating in excess of 10 percent for a sacral area lipoma scar is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from August 1983 to February 1989. These matters are before the Board of Veterans’ Appeals (Board) on appeal from December 2009 and August 2013 rating decisions. In November 2016, a videoconference hearing was held before the undersigned; a transcript is in the record. In June 2017 and December 2019 the case was remanded for further development. [An interim (May 2020) rating decision granted service connection for posttraumatic stress disorder (PTSD), rated 70 percent, effective June 25, 2009, left shoulder impingement syndrome, rated 20 percent, effective January 5, 2012, degenerative arthritis of the spine, rated 10 percent, effective June 25, 2009, and right ankle sprain, rated 10 percent, effective January 5, 2012, resolving the appeals in those matters.] 1. Service connection for conjunctivitis is denied. Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104, F.3d 1328 (Fed. Cir. 1997). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). The Veteran contends that she has chronic conjunctivitis related to eye infections in service. There are multiple notations of eye complaints in service. In July 1985, her right eye was noted to be red, with itching, burning, and tearing for four days. The left eye was slightly red and itchy. The assessment was viral conjunctivitis (rule out allergic). In October 1985 it was noted that the conjunctivitis had cleared but her eyes itched frequently. The assessments included allergic conjunctivitis secondary to extended wear contacts, corneal lesions secondary to contacts, and probable corneal edema. About ten days later, probable exposure keratitis was noted in both eyes. Examination in November 1985 found grade 3-4 papillary hypertrophy. She was seen later that month in the ophthalmology clinic and some decreased stippling in both eyes was noted. She still had giant papillary conjunctivitis in both eyes and inferior stippling secondary to incomplete blink. The next month, visual acuity was noted to be 20/20 in each eye, with no change in her condition. It was noted that she might have chronic inferior stippling secondary to exposure due to incomplete blink. In August 1986, she was seen for follow-up for dry eyes. Visual acuity was 20/20 in each eye. Examination found soporifical punctate keratitis spots in both eyes along the inferior corneal limbus. The assessment was compound myopic astigmatism. In a January 1989 report of medical history, the Veteran denied eye trouble. On January 1989 periodic examination, the eyes, upper extremities, lower extremities and spine were normal. Visual acuity was correctable to 20/25 in each eye. Service department records show that in August 1989, the Veteran was seen for a routine eye examination, which found 2+ injection around the conjunctiva. The assessment was compound myopic astigmatism. From February to April 1991, the Veteran was seen for a corneal infiltrate in her right eye. An April 1991 eye examination found the conjunctiva in both eyes clear. The impression was probable old stable corneal stromal scar of the right eye. There was no evidence of current infection. She was seen for probable infectious conjunctivitis in July 1993. Three days later it was noted to have resolved. Private medical records show that in July 2007, the Veteran complained of swelling of her left inner eyelid. The assessment was conjunctivitis. Keflex (an antibiotic) was prescribed for treatment of the infection, and she was directed to contact the provider if there was no improvement. The records do not show any follow-up. August 2007 to June 2013 private and VA treatment records do not show complaints of, treatment for, or a diagnosis of chronic conjunctivitis. On June 2013 VA eye examination, the Veteran reported multiple episodes of conjunctivitis in service. The examiner noted that viral conjunctivitis, allergic conjunctivitis secondary to contact lens solution and exposure keratitis were diagnosed during her service. The examiner opined that the Veteran had conjunctivitis in both eyes in service that had resolved, and that she did not have active conjunctivitis on the examination. April 2015, December 2015, and January 2016 VA treatment records note that the Veteran’s conjunctiva was normal. A March 2016 VA treatment record notes that drops were prescribed for the Veteran’s dry eyes. A July 2016 VA treatment record notes that the Veteran’s left eye lid was red and swollen, and there was no redness or drainage in the left eye. The assessment was a chalazion, an inflammatory lump in the oil gland of the eyelid. At the November 2016 videoconference hearing, it was noted that the June 2013 VA examination did not show active conjunctivitis. The Veteran testified that she was treated for active conjunctivitis after the June 2013 VA eye examination. A February 2017 VA treatment record notes that the Veteran’s conjunctiva was normal. On August 2017 VA eye examination, the examiner noted current diagnoses of dry eye and lagophthalmos, and that exposure keratitis was diagnosed in 2007. The Veteran reported that her eyes had been irritated for 10-15 years and that she used artificial tears in both eyes, as needed. Active conjunctivitis was not diagnosed. The examiner opined that the Veteran’s dry eye syndrome was caused by lagophthalmos (which is in an inability to close one’s eyes completely). A February 2018 VA treatment record notes that the Veteran’s conjunctiva was normal. A May 2019 VA treatment record (annual eye examination) notes symptomatic dryness in both eyes related to medication and/or contact lens usage. The threshold matter that must be addressed here (as in any claim seeking service connection) is whether there is competent evidence that the Veteran currently has (or during the pendency of the claim has had) the disability for which service connection is sought (chronic conjunctivitis). The record does not show that she has (or during the pendency of the instant claim has had) chronic conjunctivitis. Although the Veteran was seen for probable infectious conjunctivitis in July 1993, the infection was noted to have resolved three days later, and although a private July 2007 treatment record shows an assessment of left inner eyelid conjunctivitis, an antibiotic (Keflex) was prescribed for such infection, and no subsequent VA or private treatment records note follow up treatment for an ongoing conjunctivitis problem or a diagnosis of active or chronic conjunctivitis. The diagnosis of chronic conjunctivitis is a medical question; it requires medical expertise and diagnostic studies. Here, the record does not show any treatment or diagnosis for chronic conjunctivitis during the pendency of the claim (the Board notes the two occurrences above where the Veteran sought treatment for acute conjunctivitis infections, which resolved with treatment); it is not shown that she has a chronic conjunctivitis disability. The Veteran is a layperson. She does not cite to supporting medical data or medical opinion or treatise evidence. Her own opinion that she has chronic conjunctivitis which is related to service has no probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The evidence does not show that the Veteran has current chronic conjunctivitis. Chronic conjunctivitis was not found on August 2017 VA examination, and subsequent treatment records do not note a diagnosis of chronic conjunctivitis. Therefore, she has not presented a valid claim of service connection for chronic conjunctivitis. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Brammer v. Derwinski, 3 Vet. App. At 225. Accordingly, the analysis does not need to proceed further (such as to determine whether there may be a relationship between any current disability and service). The appeal in the matter must be denied. 2. Entitlement to a rating in excess of 10 percent for sacral area lipoma postoperative scar is denied. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An increased rating may be assigned for up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred during that period. 38 C.F.R. §§ 3.157, 3.400(o)(2). Consequently, the evaluation period for consideration here is from June 25, 2008 (a year prior to the June 25, 2009 date of claim) to the present. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings may be assigned for distinct periods of time when varying levels of disability are shown. Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Scars are evaluated under 38 C.F.R. § 4.118, Codes 7800 through 7805. Code 7800 applies to scars of the head, face, and neck (and therefore does not apply in this matter). Code 7801 applies to scars, not of the head, face, or neck that are deep and nonlinear. A 10 percent rating is assigned for an area or areas of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). A 20 percent rating is assigned for an area or areas of at least 12 square inches (77 square centimeters) but less than 72 square inches (465 square centimeters). Note 2 provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Code 7801. Superficial and nonlinear scars not of the head, face, or neck are rated under Code 7802. Under this Code, a 10 percent rating is assigned for scars with an area or areas of at least 144 square inches (929 square cm). Note 2 provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Code 7802. Under Code 7804 (for scars that are unstable or painful) a 10 percent rating for one or two qualifying scars, a 20 percent rating for three or four qualifying scars, and a 30 percent rating for five or more qualifying scars. Note 1 under the Code provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Code 7804. Under Code 7805 any disabling effect(s) not considered in a rating provided under Codes 7800-04 are to be rated under an appropriate Code. 38 C.F.R. § 4.118, Code 7805. On August 2009 VA scar examination, the examiner noted a scar in the low back sacral area due to lipoma excision. The maximum width of the scar was .4 cm and maximum length was 9.0 cm. The scar was painful, had no signs of skin breakdown, and was superficial and had no inflammation, edema, keloid formation or other disabling effects. There was no limitation on function or motion. VA and private treatment records dated between August 2009 and December 2015 do not show treatment for the Veteran’s sacral lipoma scar. A December 2015 VA treatment record notes that the Veteran had a 3-inch [linear] scar on her back from surgery to remove a lipoma. At the November 2016 videoconference hearing, the Veteran testified that her lipoma scar occasionally became inflamed and very tender. On September 2017 VA scar examination, a scar near the sacrum that was tender to touch, but not unstable was noted. On October 2017 VA back examination, a 9 cm by 0.5 cm scar on the sacral posterior midline, that was not painful or unstable, was noted. On February 2020 VA back examination, a 10.16 cm by .5 cm lipoma excision scar that was not painful or unstable was noted on the Veteran’s lower back. The criteria for rating scars are outlined above. Codes 7800, 7801, and 7802 do not apply because the scar in question is not on the head, face or neck, and is not shown to be deep and nonlinear or superficial and nonlinear. Under Code 7804 (the diagnostic code under which the lipoma scar is currently rated), ratings are assigned based on the number of scars and whether they are painful or unstable. A 10 percent rating is the maximum rating where, as here, there is a single scar unless it is shown to be both painful and unstable (and an additional 10 percent is then added to the rating) or causes functional limitation (here, not noted). At no time during the period on appeal, was the Veteran’s sacral area lipoma scar shown to have been unstable (in addition to being painful). Examiners consistently reported that the scar was not unstable. Consequently, a rating in excess of 10 percent under code 7804 during the period on appeal is not warranted. The analysis turns to whether a higher rating may be warranted under alternate criteria. Under Code 7805, disabling effects not considered under Codes 7800-7804 may be rated under an appropriate diagnostic code. Here, examiners have reported there are no other related symptoms or findings and no related impairment of function. Accordingly, a rating for the scar under Code 7805 (and appropriate alternate criteria) is not warranted. REASONS FOR REMAND 3. Entitlement to service connection for a right knee disability. When a claimed disability is not noted upon entry in service, the Veteran is presumed to have been in sound condition on entry in service with respect to such disability. A right knee disability was not noted on service entrance; therefore, the Veteran is presumed to have been sound for a right knee disability on entry in service. Such presumption is rebuttable only by clear and unmistakable evidence that (1) the condition preexisted service and (2) if rebutted, that it was not aggravated by such service (did not increase in severity during service, or any increase in severity during service was due to natural progression). 38 U.S.C. §§ 1111, 1153; 38 C.F.R. § 3.306. On February 2020 VA knee examination, the examiner opined that the Veteran’s right knee disability was less likely than not related to her service because a “knee condition” was present prior to her service. She explained that although the Veteran was seen in service for right knee pain and injuries, a January 1984 STR notes that her knee pain pre-existed basic training. This finding appears to be premised on a statement by the Veteran on January 1984 treatment (that she reported a history of “knee pain” since before basic training). However, medical evidence is needed to establish pre-existing condition. Crowe v. Brown, 7 Vet. App. 238, 246 (1994). Notably also, that statement does not identify which knee caused her pain, and the STRs do not contain any medical evidence that supports pre-existence of a chronic right knee disability. The February 2020 VA opinion and the Veteran’s vague report of a history of “knee pain” are not clear and unmistakable evidence that a right knee disability pre-existed her entry on active duty, and therefore are insufficient to rebut the presumption of soundness on entry in service as to a right knee disability. Therefore, remand is necessary for an examination to obtain an adequate medical advisory opinion (as directed in the December 2019 Board remand) and discussed in more detail below. On October 2017 VA right knee examination, the examiner opined that it was less likely than not the Veteran’s right knee disability was related to her service. He explained that any right knee injury during service was acute, and that there was no evidence of chronicity of care. On examination there was no objective evidence (but some subjective symptoms) of a chronic right knee disability. The examiner noted that the chondromalacia patella appeared to be resolved. The examination is inadequate because the examiner did not note other right knee diagnoses of record during the period on appeal such as the right knee strain found on May 2013 knee examination. Therefore, remand for another examination to obtain an adequate medical advisory opinion is necessary. Furthermore, the record contains records of VA treatment the Veteran received for right knee disability only up to December 2019; as she receives ongoing VA treatment for her right knee disability, and records of such treatment are pertinent evidence, outstanding records of the treatment must be obtained and considered. Notably, VA records are constructively of record. 4., 5., 6., 7., 8., 9., 10. Entitlement to service connection for hypertension, PID, and right hand, right forearm, right hip, left knee, and left ankle disabilities. An August 2014 rating decision denied service connection for right forearm, right hip, left knee, left ankle and right hand disabilities, and for PID and elevated blood pressure (hypertension). The Veteran submitted a notice of disagreement (NOD) with the denials in July 2015. A statement of the case (SOC) was not provided in response. The prior Board remands instructed that (in accordance with Manlincon v. West, 12 Vet. App. 238 (1999)) an SOC addressing these matters be issued. As the record does not reflect that an SOC in the matters has yet been issued (or that the NOD was withdrawn), the Board has no recourse but to remand the matters once again (for corrective action). See Stegall v. West, 11 Vet. App. 268 (CAVC 1998). [Thereafter, these claims will be before the Board only if the Veteran perfects the appeal by timely filing a substantive appeal.] The matters are REMANDED for the following: 1. Secure for the record complete, updated to the present, records of all VA evaluations and treatment the Veteran has received for her right knee since December 2019. 2. Then, arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology of her right knee disability, and specifically whether it is directly related to (was incurred during) her active service. The Veteran’s record must be reviewed by the examiner. The examiner must acknowledge that the Veteran is presumed to have been sound on entry to service with respect to a right knee disability. On review of the record and examination of the Veteran, the examiner should: (a) Identify (by diagnosis) each right knee disability entity found/or shown during the pendency of the instant claim. (b) Identify the likely etiology of each right knee disability diagnosed. The analysis should proceed as follows: (i) Is there any medical evidence in the record that renders it undebatable, from a medical standpoint, that the disability pre-existed service. (ii) If so, identify the evidence. If not, proceed with the presumption that the knee disability did not pre-exist service. (iii) Was the disability manifested during service? If so, is there any evidence in the record, that renders it undebatable from a medical standpoint that the disability was not incurred or aggravated in service? If so, identify such evidence. (iv) If upon the foregoing analysis the conclusion is that a diagnosed knee disability was not incurred or aggravated in service, identify the etiology for the disability that is considered to be more likely, and explain why that is so. All opinions must include a complete explanation of rationale. [Any opinion indicating that a diagnosed right knee disability is unrelated to service must include explanation why the multiple injuries and findings in service would not have been a factor in the development of the current disability (and must discuss what became of the chondromalacia diagnosed in service.] 3. Issue an appropriate SOC addressing the claims of service connection for hypertension, PID, and right forearm, right hip, left knee, left ankle, and right hand disabilities. Afford the Veteran and her representative opportunity to perfect appeals in the matter by timely submitting a substantive appeal (VA Form-9). These matters should be returned to the Board only if the appellant timely files a substantive appeal after the SOC is issued. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, 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.