Citation Nr: 21000589 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-48 393 DATE: January 5, 2021 ORDER Service connection for traumatic brain injury (TBI) is denied. Service connection for a right knee disability is denied. Service connection for headaches is granted. Service connection for tinnitus is granted. Service connection for a left shoulder disability is denied. Service connection for insomnia is denied. Entitlement to an initial 10 percent rating for left ankle scarring status post arthroscopic surgery is granted. Entitlement to an initial rating in excess of 10 percent for left ankle scarring status post arthroscopic surgery is denied. REMANDED The claim for an initial rating in excess of 10 percent for thoracolumbar spine strain with anterolisthesis for the period from August 21, 2013, to September 1, 2016, is remanded. The claim for an initial rating in excess of 20 percent for thoracolumbar spine strain with anterolisthesis for the period beginning September 2, 2016, is remanded The claim for an initial rating in excess of 10 percent for left knee patellar tendonitis is remanded. The claim for an initial rating in excess of 10 percent for residuals of a left ankle fracture with history of arthroscopic surgery is remanded. FINDINGS OF FACT 1. The Veteran was treated for headaches during service and the Veteran has credibly and competently related current headaches to service. 2. Tinnitus is shown within one year of separation from service. 3. The most probative evidence of record weighs against a conclusion that the Veteran has TBI, a right knee disability, a left shoulder disability, or insomnia due to service. 4. Left ankle scarring status post arthroscopic surgery scar measures 13.2 by 1.6 square centimeters and .5 by .4 centimeters and is superficial and non-linear; this scaring is painful but not unstable. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for headaches have been met. 38 U.S.C. §§ 1110, 5103A, 5107 (West 2002);38 C.F.R. §§ 3.159, 3.303 (2020). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2020). 3. The criteria for service connection for TBI, a right knee disability, a left shoulder disability, or insomnia have not been met. 38 U.S.C. §§ 1110, 5103A, 5107 (West 2002);38 C.F.R. §§ 3.159, 3.303 (2020). 4. The criteria for an initial 10 percent rating for left ankle scarring status post arthroscopic surgery have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4118, Diagnostic Codes (DCs) 7800-7805 (2020). 5. The criteria for an initial rating in excess of 10 percent for left ankle scarring status post arthroscopic surgery have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4118, DCs 7800-7805 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 2009 to August 2013. I. Service Connection Claims A. Legal Criteria It is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § § 3.303(d). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. § §§ 3.307, 3.309. The Court has held that tinnitus is to be considered an organic disease of the nervous system for purposes of 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258 (2015). Alternatively, service connection may be established under 38 C.F.R. § § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to “chronic” diseases listed under 38 C.F.R. § 3.309(a), such as organic diseases of the nervous system.   B. Analysis The service treatment reports (STRs) are silent for any indicia of TBI, a right knee disability, tinnitus, a left shoulder disability, or insomnia. Headaches were demonstrated on March and April 2010 STRs. After service, a February 2014 VA headaches examination noted that the Veteran had not been diagnosed with a headache condition. The Veteran reported a history of headaches since his service deployment that occur throughout the day and “come and go,” lasting for variable periods of time. He reported that his headaches sometimes require him to lie down. The examiner noted, incorrectly, that the STRs were silent for headaches. A February 2014 VA examination to address the claim for service connection for TBI noted that the Veteran did not at that time or at any time have TBI. The reports from the examination reflect a discussion of the history reported by the Veteran of being exposed to “a couple of blasts” during his service in the Marines. After one such blast, the Veteran recalled falling from his perch and then finding himself in a rack, without recalling how he got there. He reported that the was not certain if lost consciousness after this event but is sure that he was disoriented/confused for less than 30 minutes. The examiner also specially noted that his STRs were silent for “head trauma/TBI” and the examination revealed no facets of TBI related cognitive impairment or subjective symptoms due to TBI. A February 2014 VA examination of the knees noted that the Veteran had been diagnosed with bilateral patellar tendonitis in 2009. In point of fact, the STRs reflected treatment for left knee pain in September 2009 after slipping on wet ground while running and striking his left knee, and service connection for tendonitis in the left knee has been granted. At the examination, the Veteran reported a gradual onset of bilateral knee pain after running. The examination of the right knee revealed no limitation of motion. Pain on motion and tenderness in the right knee were noted but no other abnormalities were shown in the right knee. An April 2014 opinion by the February 2014 VA examiner found that it was less likely as not that the Veteran had a right knee disability that was incurred in or caused by service. The rationale provided was that there were no STRs indicating that the Veteran was seen for a right knee disability. A March 2014 VA audiometric examination showed the Veteran reporting having had a gradual onset of tinnitus during military service. The examiner found that it was less likely than not that the Veteran’s tinnitus was caused by or a result of military noise exposure. The rationale for the opinion was as follows: Hearing is normal bilaterally. Despite exposure to hazardous noise [in service], the DPOAE’s (Distortion Product Otoacoustic Emissions tests) are bilaterally normal[,] indicating cochlear hair cell integrity. A February 2014 VA shoulder examination noted that the Veteran was diagnosed with left sided shoulder tenonitis in 2012, with the Veteran reporting a sudden onset of left shoulder pain during service that he treated with motion. Range of motion testing of the left shoulder showed 160 degrees of flexion (normal is 180 degrees) and 145 degrees of abduction (normal is 180 degrees). The Hawkins’ Impingement and Empty-can tests were negative. An April 2014 opinion by the February 2014 VA examiner found that it was less likely as not that the Veteran had a left shoulder disability that was incurred in or caused by service. The rationale provided was that there were no STRs documenting an injury to the left shoulder or treatment for the left shoulder. Applying the pertinent legal criteria to the facts set forth above, given that fact that headaches were shown on March and April 2010 STRs and headaches were described by the Veteran as having had their onset in service relatively shortly after the Veteran’s August 2013 separation from service upon February 2014 VA examination, the undersigned finds his statements at this examination of having had recurring headaches since his service deployment to be credible. As the Veteran is also competent to report that he had continuing problems with headaches since service, and given no definitive negative medical opinion to the contrary, the undersigned finds that there is sufficient evidence to conclude that the headaches the Veteran currently experiences are of in-service origin. All reasonable doubt has been resolved in favor of the Veteran in making this determination. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. With respect to tinnitus, notwithstanding the negative March 2014 opinion with respect to this matter, as tinnitus was demonstrated within one year of separation from service at the March 2014 VA audiometric examination, service connection for such is warranted on the basis of chronic disease under the provisions of 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. See Fountain, supra. With respect to the claims for service connection for TBI, a right knee disability, and a left shoulder disability, there is not of record an opinion finding that the Veteran has any of these disabilities due to service, and the undersigned finds the above March 2014 VA examination finding that the Veteran did not have TBI and the negative VA opinions rendered in April 2014 with respect to whether the Veteran has right knee or left shoulder disabilities due to service to be definitive as to these claims as they were documented to have been preceded by a discussion of the Veteran’s lay history and physical examination and are supported by adequate rationale. As there is no evidence in the STRs or post service medical record indicating that the Veteran suffers from insomnia due to service, a VA examination or medical opinion addressing the claim for service connection for this disability is not necessary to fulfill the duty to assist with respect to this claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). To the extent that any assertions of the Veteran or his attorney are advanced in an attempt to establish that TBI, a right knee disability, left shoulder disability, or insomnia are due to service, such complex medical matters are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his attorney are shown to have the appropriate training and expertise, neither are not competent to render a persuasive opinion as to such matters. While the Veteran is competent to describe any lay observable symptoms associated with TBI, a right knee disability, left shoulder disability, and insomnia, the undersigned finds the silent STRs for these conditions and the March 2014 VA examination finding that the Veteran did not have TBI and the negative VA opinions rendered in April 2014 with respect to whether the Veteran has right knee or left shoulder disabilities to be more probative than any lay assertions made in connection with the claims for service connection for these disabilities, and that these facts weigh against a finding of continuity of relevant symptoms associated with these conditions since service. Based on all of the above and in sum, the undersigned finds that the preponderance of the evidence is against the Veteran’s claims for service connection for TBI, a right knee disability, left shoulder disability, and insomnia. As such, these claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. II. Increased Initial Rating for a Left Ankle Scar A. Legal Criteria 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. While the Veteran’s entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Court has since held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 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. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Scarring not involving the head, face, or neck that is deep and nonlinear in an area or areas of at least 6 square inches (39sq. cm.) but less than 12 square inches (77 sq.cm.) warrants a 10 percent rating. 38 C.F.R. § 4.118, DC 7801. Deep scarring is defined by Note (1) following DC 7801 as that which involves underlying soft tissue damage. Scarring not involving the head, face, or neck that is superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater warrants a 10 percent rating. 38 C.F.R. § 4.118, DC 7802. The only rating assignable under DC 7802 is 10 percent. One or two scars that are unstable or painful warrant a 10 percent rating. 38 C.F.R. § 4.118, DC 7804. Three or four scars that are unstable or painful warrant a 20 percent rating. 38 C.F.R. § 4.118, DC 7804. Unstable scarring is defined by Note (1) following DC 7802 as involving the frequent loss of covering of the skin over the scar. Note (2) following DC 7804 provides that if one or more scars are both unstable and painful, 10 percent is to be added to the rating based on the total number of unstable or painful scars. Disabling effects from scarring other than that contemplated by DCs 7800-7804 are to be rated under an appropriate diagnostic code. DC 7805. B. Analysis The May 2014 rating decision which gave rise to this appeal granted service connection for residual scarring from arthroscopic surgery of the left ankle at a noncompensable disability rating under DC 7805. The Veteran has perfected an appeal with respect to the propriety of this initial noncompensable rating. The service-connected left ankle scarring, as demonstrated by an August 2016 VA examination, measures 13.2 by 1.6 square centimeters and .5 by .4 centimeters. This scarring was superficial, non-linear, and not unstable. The total area affected by this superficial scarring was said to measure 21.3 square centimeters at the August 2016 VA examination. Each of the two scars were said to be painful and to limit functioning to the extent the Veteran cannot stand or walk for long periods. A review of the remaining clinical evidence, to include VA outpatient treatment records dated through August 2016 at the time of this writing, do not contain clinical findings that differ in significant degree as pertinent to the relevant rating criteria than those demonstrated at the August 2016 VA examination describe above. Applying the potentially applicable criteria for rating skin disabilities to the clinical evidence summarized above, as the service-connected scarring is superficial rather than deep, a compensable rating cannot be assigned under DC 7801. In addition, as the superficial scarring measures less than 929 square centimeters, a compensable rating under DC 7802 cannot be assigned. However, given the two painful scars shown at the August 2016 VA examination, a 10 percent rating may be assigned under DC 7804. As there are no more than 2 painful scars, or scarring that is both painful and unstable, compensation in excess of 10 percent may not be assigned under DC 7804. There are otherwise no other findings warranting a rating in excess of 10 percent under DC 7805 or any other diagnostic code pertaining to the rating of skin disabilities codified at 38 C.F.R. § 4.118 given the nature of the service-connected scarring at issue. In making the determination above that a rating in excess of 10 percent cannot be assigned for the service connected scarring at issue, the undersigned has considered carefully the Veteran’s contentions with respect to the nature of the service-connected skin disability at issue and notes that his lay testimony is competent to describe certain symptoms associated with these manifestations. However, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected manifestations at issue. As such, while the undersigned accepts the Veteran’s testimony with regard to the matters he is competent to address, more probative weight is place on the competent medical evidence with regard to the specialized evaluation of functional impairment; namely, the assessments of the severity of disability due to the service-connected skin disability in the clinical evidence discussed above. The record does not show nor does the evidence suggest that the Veteran is unable to obtain or maintain substantially gainful employment and consideration of individual unemployability is not warranted. Finally, in concluding that a rating in excess of 10 percent cannot be assigned for the service connected scarring at issue, the undersigned has considered the doctrine of reasonable doubt but finds that the preponderance of the evidence is against the assignment of rating in excess of 10 percent for such scarring. As such, entitlement to a rating in excess of 10 percent for this service-connected scarring may not be granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert. REASONS FOR REMAND The Veteran has not been afforded VA examinations to assess the severity of the service-connected thoracolumbar spine, left knee, or left ankle disabilities that contain the range of motion findings required by Correia v. McDonald, 28 Vet. App. 158 (2016). As such, VA examinations of the thoracolumbar spine, left knee, and left ankle that contain the findings required by Correia—as well as the findings with respect to flare-ups required by Sharp v. Shulkin, 29 Vet. App. 26 (2017)—are necessary to fulfill the duty to assist with respect to the claims for increased ratings for these disabilities. For the reasons stated above, this case is REMANDED for the following action: Schedule the Veteran for VA examinations to determine the current severity of his service-connected thoracolumbar spine, left knee, and left ankle disabilities. Each examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating each disability under the rating criteria. In so doing, each examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. With respect to the examinations of the left knee and ankle, the examiner should also conduct such testing of the right knee and ankle. If it is not possible to provide a specific measurement without speculation, each examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Each examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and with repeated use over time based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Andrew Ahlberg, 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.