Citation Nr: 21001416 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 17-34 589 DATE: January 8, 2021 ORDER Service connection for a right knee disability is dismissed. Service connection for a left knee disability is dismissed. Service connection for a left foot injury is denied. An initial 10 percent rating for a left elbow scar is granted. An initial compensable rating for right thumb/hand scars, to include of the right inner thumb and right inner palm, is denied. An initial compensable rating for a right axillary scar, status post-removal of a mass under the right arm, is denied. REMANDED An initial rating in excess of 10 percent for left lateral epicondylitis (claimed as a left elbow disability) is remanded. An initial compensable rating for status post-laceration to the flexor pollicis longus muscle and radial nerve (claimed as a right thumb/hand disability) is remanded. An initial compensable rating for left ankle osteoarthritis with a chronic lateral collateral ligament sprain (claimed as a left ankle disability) is remanded. Service connection for a right ankle sprain or a right foot injury is remanded. FINDINGS OF FACT 1. While the Veteran’s claim was in appellate status, a July 2020 rating decision granted the Veteran’s claim for entitlement to service connection for degenerative arthritis of the right knee (claimed as a right knee disability); therefore, there is no remaining case or controversy pertaining to this claim. 2. While the Veteran’s claim was in appellate status, a July 2020 rating decision granted the Veteran’s claim for entitlement to service connection for degenerative arthritis of the left knee (claimed as a left knee disability); therefore, there is no remaining case or controversy pertaining to this claim. 3. The preponderance of the evidence shows the Veteran does not have a current diagnosis of a left foot disability, nor has there been demonstrated any left foot pathology that would equate to functional impairment of earning capacity. 4. Throughout the period on appeal, the Veteran’s left elbow scar has resulted in numbness and tingling. 5. Throughout the period on appeal, the Veteran’s right thumb/hand scars, to include of the right inner thumb and right inner palm, have not resulted in underlying soft tissue damage, has not covered an area greater than 144 square inches, and has not been shown to be unstable or painful. 6. Throughout the period on appeal, the Veteran’s right axillary scar, status post-removal of a mass under the right arm, has not resulted in underlying soft tissue damage, has not covered an area greater than 144 square inches, and has not been shown to be unstable or painful. CONCLUSIONS OF LAW 1. As the benefit sought on appeal has been granted, there remains no case or controversy as to the issue of entitlement to service connection for a right knee disability. 38 U.S.C. § 7105 (d)(5); 38 C.F.R. § 20.101. 2. As the benefit sought on appeal has been granted, there remains no case or controversy as to the issue of entitlement to service connection for a left knee disability. 38 U.S.C. § 7105 (d)(5); 38 C.F.R. § 20.101. 3. The criteria for service-connection for a left foot disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 4. The criteria for a compensable rating for a left elbow scar have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7804. 5. The criteria for right thumb/hand scars, to include of the right inner thumb and right inner palm, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DCs 7800-7804, 7805. 6. The criteria for a right axillary scar, status post-removal of a mass under the right arm, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DCs 7800-7804, 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1966 to April 1974 and from May 1975 to September 1989. These matters come to the Board of Veterans’ Appeals (Board) on appeal from July 2015 and September 2015 rating decisions. These issues were previously before the Board in May 2019 when they were remanded for further development. 1. Service connection for a right knee disability is dismissed. 2. Service connection for a left knee disability is dismissed. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. On March 16, 2015, the Veteran submitted a claim for service connection for a right knee disability and for a left knee disability. His claims were originally denied because the RO found no evidence showing a causal association between a current disability and military service or a diagnosed disability within one year from the Veteran’s release from active military service. See Statement of the Case, dated June 13, 2017. Thereafter, in a July 2020 rating decision, the RO granted service connection for a right knee disability and service connection for a left knee disability, which constitutes a full grant of benefits for these issues. As a result, no case or controversy regarding these issues remain, and there is no remaining allegation of error of fact or law for appellate consideration. 38 U.S.C. § 7105 (d)(5). Accordingly, the Board is without jurisdiction to review the appeals with respect to the issues, and the claims are dismissed. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Pertinent to a claim for service connection, such a determination requires a finding of a current disability related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under the applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability”). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. 3. Service connection for a left foot injury is denied. By way of background, the Veteran was afforded a VA examination in January 2020. The examiner notes the Veteran’s foot exam was within normal limits and found no medical history involving a left foot injury, trauma, or treatment. Further, during his examination, the Veteran denied any left foot condition or injury to his feet during service. The examiner did not identify any left foot pathology that would equate to functional impairment of earning capacity. As noted above, the threshold factor for establishing service connection is the existence of a current disability. Here, as there is no evidence of a current diagnosis related to a left foot disability, the Veteran’s claim must be denied. Without proof of the existence of the disability being claimed, there can be no valid claim. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer, supra; Rabideau, supra. In this regard, the probative evidence fails to show a diagnosis of a left foot disability prior to, or during, the pendency of the Veteran’s claim. See McClain, supra; Romanowsky, supra. Therefore, based on the foregoing, the Veteran’s claim must be denied. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a left foot disability. As such, that doctrine is inapplicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Increased Ratings VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102. Separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not “duplicative or overlapping with the symptomatology” of the other condition. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, supra. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert, supra; see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Gilbert, supra; Wise, supra; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 4. An initial 10 percent rating for a left elbow scar is granted. 5. An initial compensable rating for right thumb/hand scars, to include of the right inner thumb and right inner palm, is denied. 6. An initial compensable rating for a right axillary scar, status post-removal of a mass under the right arm, is denied. The Veteran’s left elbow, right hand, and right axillary scars have been assigned noncompensable disability ratings under 38 C.F.R. § 4.118, DC 7805. DC 7805 states that other scars, including linear scars, and any disabling effect(s) for scars rated under diagnostic codes 7800, 7801, 7802, and 7804, which are not considered in a rating provided under DCs 7800-7804, should be rated under an appropriate DC. 38 C.F.R. § 4.118, DC 7805. DC 7804 sets forth the disability ratings of: 30 percent for five or more scars that are unstable or painful; 20 percent for three to four scars that are unstable or painful; or 10 percent for one or two scars that are unstable or painful. An “unstable” scar is a scar “where, for any reason, there is frequent loss of covering of skin over the scar.” Id. at DC 7804 Note (1). The Board notes the schedule for rating disabilities applicable to the skin was amended effective August 13, 2018. 83 Fed. Reg. 32593 (July 13, 2018). Claims pending prior to the effective date of the new rating criteria will be considered under both the old and new criteria, and whatever criteria is more favorable to the Veteran will be applied. Id. However, relevant to this matter, no changes were made to DCs 7804 and 7805, and no other DC was added that would be applicable to the Veteran’s scars. On examination in August 2015, scars covering three areas were noted. The examination report notes scars of the trunk or extremities. No scars or disfigurement of the head, face, or neck were found. The scars of the trunk or extremities were found to be unpainful, stable, without frequent loss of skin, and not due to burns. Two linear scars of the right upper extremity were noted – the first of the right upper extremity was found to measure six centimeters while the second of the right inner palm was found to measure two centimeters. One linear scar of the left upper extremity located on the left elbow was found to be four centimeters, and a linear scar of the anterior trunk described as a right axillary scar measuring five centimeters was described. Limitation of function was not found. Numbness and tingling of the left elbow scar were noted. An August 2015 VA hand and finger examination notes a right inner-palm scar measuring two centimeters by one-fourth centimeters and a right inner-thumb scar measuring six centimeters by one-fourth centimeters. The scars were found to be unpainful and stable, without a total area equal to or greater than 39 square centimeters, or not located on the head, face, or neck. An August 2015 VA elbow and forearm examination notes a left lateral elbow scar measuring four centimeters by one centimeter. The scars were found to be unpainful and stable, without a total area equal to or greater than 39 square centimeters, or not located on the head, face, or neck. A January 2020 VA skin examination is of record. Four linear stable scars were noted. A right axilla scar was found to measure four centimeters by one-tenth centimeters. A right thumb scar was found to measure five centimeters by one-tenth centimeters. A scar of the right palm was found to measure three centimeters by one-tenth centimeters. The fourth scar, a left elbow scar, was found to measure five centimeters by two centimeters. No scars or disfigurement of the head, face, or neck were found. Throughout the period on appeal, regarding the Veteran’s right thumb/hand scars and right axillary scar, the Board finds these scars have not resulted in pain or functional limitation. His right thumb/hand scars and right axillary scar were found to be stable, and none involve underlying soft tissue damage. Furthermore, these scars were not found to cover an area of 144 square inches, as required for the higher rating of 10 percent under DC 7802. These scars also have not been shown to be unstable or painful, as required for a 10 percent evaluation under DC 7804. The Board further notes DC 7800 is inapplicable to these scars as they do not involve the head, face, or neck. DC 7801 is also inapplicable to these scars as they are neither deep or nonlinear, and DC 7802 is inapplicable to the right thumb/hand scars and right axillary scar as they are linear. A January 2020 VA hand and finger examination notes a right inner-palm scar measuring three centimeters by one-tenth centimeters and a right inner-thumb scar measuring five centimeters by one-tenth centimeters. The scars were found to be unpainful and stable, without a total area equal to or greater than 39 square centimeters, or not located on the head, face, or neck. A January 2020 VA elbow and forearm examination notes a stable, non-tender, well-healed scar measuring five centimeters by two centimeters. However, the Board finds an initial 10 percent rating is warranted for the Veteran’s left elbow scar as the medical evidence from the August 2015 VA examination shows this scar manifests symptoms of numbness and tingling, which is equivalent to a painful scar under DC 7804. With regard to the numbness and tingling of the Veteran’s left elbow scar, the Board notes the Veteran is not already receiving compensation for numbness and tingling for his service-connected left lateral epicondylitis (claimed as a left elbow injury), and thus, pyramiding is avoided. Thus, the Board finds the Veteran’s right thumb/hand scars and right axillary scar currently only warrant noncompensable evaluations. This is based upon the showing of stable, linear, unpainful, non-deep scars measuring less than 12 square inches (77 sq. cm.). None of the criteria for an increased rating are shown. Therefore, entitlement to higher evaluations than 0 percent are not warranted for the Veteran’s right thumb/hand scars and right axillary scar. However, the Board finds an initial 10 percent rating is warranted for the Veteran’s left elbow scar due to the documented numbness and tingling of that scar.   REASONS FOR REMAND 1. An initial rating in excess of 10 percent for left lateral epicondylitis (claimed as a left elbow disability) is remanded. 2. An initial compensable rating for status post-laceration to the flexor pollicis longus muscle and radial nerve (claimed as a right thumb/hand disability) is remanded. 3. An initial compensable rating for left ankle osteoarthritis with a chronic lateral collateral ligament sprain (claimed as a left ankle disability) is remanded. In May 2019, the Board specifically directed that the examiner should “include range of motion testing for passive motion and in nonweight-bearing and describe any functional limitation due to pain. If the examiner is unable to conduct any part of the required testing or concludes that any part of the required testing is not necessary in this case, he or she should clearly explain why that is so.” The nurse practitioner who completed the examinations did not include the range of motion measurements. Thus, a remand is necessary to address the Board’s May 2019 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). 4. Service connection for a right ankle sprain or a right foot injury is remanded. The Board acknowledges that the Veteran’s VA ankle examination from January 2020 notes the finding of a normal diagnosis for the right ankle. However, the same examination report notes that ankle instability or dislocation is suspected. Furthermore, the examination report also notes the Veteran reporting functional loss in that he is unable to squat down on his ankles with pressure and experiences decreased movement and stiffness. The U.S. Court of Appeals for the Federal Circuit recently found the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” Saunders, supra. The Board finds that, considering Saunders, the lack of documentation of continuity of symptomatology or whether the Veteran experiences any right ankle or right foot pain, a remand is warranted for a new VA examination and opinion. The matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any relevant VA or private treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38C.F.R. §3.159. The evidence obtained, if any, should be associated with the record. 2. Schedule the Veteran for an appropriate VA examination to assess the nature and current level of severity of his service-connected disabilities of left lateral epicondylitis, status post-laceration to the flexor pollicis longus muscle and radial nerve, and left ankle osteoarthritis with a chronic lateral collateral ligament sprain. The Veteran’s claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The appropriate Disability Benefits Questionnaires should be filled out. For each examination report, the examiner must include all the following: (a.) Active range of motion testing results. (b.) Passive range of motion testing results. (c.) Weightbearing range of motion testing results. (d.) Nonweightbearing range of motion testing results. If the examiner is unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner must provide an explanation. In any event, the type of test performed (i.e. active or passive, weightbearing or nonweightbearing), must be specified. The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran’s own statements, is insufficient to make such an estimate. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 3. Obtain an examination and opinion for the Veteran’s claimed right ankle or right foot condition. The claim file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination and opinion. After conducting any appropriate diagnostic testing, including x-rays, the examiner should identify all current right ankle or right foot disorders found to be present. The examiner is requested to opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) any current right ankle or right foot condition had its clinical onset during active service or is related to any incident of service, to include the Veteran’s report on his June 1989 retirement examination that his ankles hurt sometimes. The Board acknowledges the January 2020 finding of a normal diagnosis for the Veteran’s right ankle, but that same examination report also notes right ankle instability or dislocation was suspected and the Veteran reporting functional loss of the ankles. Therefore, in light of Saunders, the examiner should acknowledge pain alone can serve as a functional impairment and therefore qualify as a disability, and as a result, the examiner should comment whether: (b.) It at least as likely as not (i.e., a 50 percent or greater probability) any reported right ankle or right foot pain results in a functional impairment of earning capacity, i.e., a disability for VA purposes? (c.) If so, is it at least as likely as not (i.e., a 50 percent or greater probability) any disability is related to the Veteran’s military service? In developing these opinions, the examiner should consider the Veteran’s statements with regard to onset and continuity of symptomatology of his claimed disabilities. The examiner must also elicit and document a complete history of the Veteran’s subjective symptoms within the examination reports. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Buck Denton 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.