Citation Nr: 21001635 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 17-17 498 DATE: January 11, 2021 ORDER Entitlement to an initial compensable rating for a scar of the head is denied. Entitlement to service connection of residuals of a traumatic brain injury (TBI), claimed as residuals of a head injury, is denied. Entitlement to service connection of a right knee condition is denied. Entitlement to service connection of a left knee condition is denied. REMANDED Entitlement to service connection of migraine headaches is remanded. Entitlement to service connection of a pulmonary condition is remanded. FINDINGS OF FACT 1. The Veteran has a single scar located on his head, measuring 2.5 cm in length, and 0.3 cm wide (0.1 sq. inches or 0.8 sq. cm in total area); the scar is neither hyperpigmented nor hypopigmented; it is smooth on palpation; it is not painful, is stable and the underlying soft tissue is intact; the skin is soft and flexible; the texture of the scar is normal and it is not adherent to any underlying tissue. 2. The Veteran did not sustain a TBI in service. 3. The Veteran did not sustain an in-service incident, illness or injury to his right knee; his right knee condition has not been medically attributed to arthritis, and did not manifest to a compensable degree within one year of separation from active service. 4. The Veteran did not sustain an in-service incident, illness or injury to his left knee; his left knee condition has not been medically attributed to arthritis, and did not manifest to a compensable degree within one year of separation from active service. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for a scar of the head have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code (DC) 7800. 2. The criteria for service connection for residuals of a TBI are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a right knee condition are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for a left knee condition are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1962 to May 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Board received a written request to withdraw the Veteran’s scheduled hearing before a Veterans Law Judge. As such, the Veteran’s hearing request is considered withdrawn and the Board will adjudicate the claims at this time. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the Veteran’s scar of the head, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, “[w]here 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 required for that rating. Otherwise, the lower rating will be assigned.” 38 C.F.R. § 4.7. 1. Entitlement to an initial compensable rating for a scar of the head The Veteran has been granted service connection of a scar of the head with a noncompensable rating. He seeks a compensable rating from the date of service connection. The Board finds that the claim should be denied. The Veteran’s scar of the head is rated under Diagnostic Code (DC) 7800, which compensates for burn scars of the head, face, or neck; scars of the head, face, or neck due to other causes; or disfigurements of the head, face, or neck. Under the applicable rating criteria, for a minimum 10 percent rating to be granted for a scar of the head, a minimum of one characteristic of disfigurement must be shown. 38 C.F.R. § 4.118, DC 7800. For ratings in excess of 10 percent for a scar of the head, multiple characteristics of disfigurement must be shown; or there must be evidence of visible or palpable tissue loss and either gross distortion or asymmetry of facial features. Id. The 8 characteristics of disfigurement, for purposes of evaluating scars of the head, face, or neck, are: (1) scar 5 or more inches (13 or more cm.) in length; (2) scar of at least one-quarter inch (0.6 cm) wide at the widest part; (3) contour of the scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) scar hypo- or hyper-pigmented in an area exceeding six square includes 939 sq. cm); (6) skin texture abnormal in an area exceeding six square inches (39 sq. cm); (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm); or (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm). 38 C.F.R. § 4.118, DC 7800, Note (1). The Board notes that DC 7804, which compensates for scars which are unstable or painful, may also apply to scars of the head, face, or neck. However, such pathology is not shown in this matter, and it is not for consideration at this time. 38 C.F.R. § 4.118, DC 7804. The Veteran was afforded a VA examination in connection with his initial claim of service connection. At that time, a single scar was located on his head, measuring 2.5 cm in length, and 0.3 cm wide (0.1 sq. inches or 0.8 sq. cm in total area). The scar was neither hyperpigmented nor hypopigmented. It was smooth on palpation. It was not painful. The scar was stable and the underlying soft tissue was intact. The skin was soft and flexible. The texture of the scar was normal and it was not adherent to any underlying tissue. The Board has reviewed the remainder of the medical evidence of record and finds nothing to suggest that the Veteran’s scar meets any of the 8 characteristics of disfigurement. In light of the above, because there is no evidence that the Veteran’s single scar of the head meets any of the 8 characteristics of disfigurement, and because there is no evidence of visible or palpable tissue loss and either gross distortion or asymmetry of facial features, the Board concludes that the Veteran has not met the criteria for an initial compensable rating for his scar. As such, the claim for an increased rating is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including arthritis and bronchiectasis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Regardless of whether or not the condition is listed as “chronic,” continuity of symptomatology is a factor to be weighed when considering service connection. A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. 2. Entitlement to service connection of residuals of a traumatic brain injury (TBI), claimed as residuals of a head injury The Veteran seeks service connection of residuals of an in-service TBI. The Board finds that the claim should be denied. The Board has carefully reviewed the Veteran’s service treatment records, but finds that there is no evidence that he sustained a TBI while in service. The Veteran’s entrance examination in 1962 recorded a skull fracture in 1948, and a concussion in 1954, both prior to entering service, and both asymptomatic and without residuals. The record further reflects that on July 24, 1962, several months after he entered service, he sustained a small laceration to his head, reportedly after he slipped on a wet deck in the drying room. He was treated with four sutures and a dry dressing and immediately released back to active duty. There was no evidence of complications and no further follow up. Beyond the laceration itself, which has already resulted in a service-connected scar, he did not report any further symptoms or issues following that incident. There are no further documentations of any TBI-related or TBI-like symptoms or issues in his service treatment records and he denied any such issues or symptoms upon separation in 1966. In light of this, the Board finds that the evidence does not support a finding that the Veteran suffered a TBI in service. A TBI is defined by the Center of Disease Control as “a disruption in the normal function of the brain that can be caused by a bump, blow, or jolt to the head, or penetrating head injury.” In short, while all TBIs result from head injuries, not all head injuries result in a TBI. Depending on the severity of the brain injury, a person who has sustained a TBI may be expected to experience a change in consciousness that can range from being dazed and confused to losing consciousness. They may also experience symptoms such as memory loss. Even a mild TBI or concussion would be expected to result in some sort of cognitive symptoms following the initial incident. In the present matter, although the Veteran certainly slipped and cut his head, there is a difference between these injuries and a TBI, as there is no evidence of any cognitive or memory issues. He did not complain of symptoms such as losing consciousness, dizziness, or headaches at the time of the incident. The Board does acknowledge a handwritten note which appears to have been added to the service treatment record after the fact by the Veteran (it is only present on a copy submitted by the Veteran with his VA Form 9) and which indicates he was knocked unconscious and woke up in a puddle of blood. However, looking at the record in its original format, he did not make any such assertions at the time of the incident and the record merely indicates that he reported slipping and cutting his head. He did not report unconsciousness at the time of the incident itself, a severe symptom which would have been expected to be recorded if it did, in fact, occur. The record at the time of the accident merely indicates that he was treated for the laceration and immediately returned to active duty. To the extent that the Veteran now asserts he was knocked unconscious, to the extent that such a severe injury was not reported until the time of this appeal, and is not supported by the contemporary medical record, the Board finds this to be a less than credible assertion. See Caluza v. Brown, 7 Vet. App. 498 (1995). Therefore, while the Veteran certainly fell resulting in a laceration, this is not contested and the residuals of the laceration are already service-connected. However, there is no evidence of record to indicate that the Veteran sustained any type of brain injury, even a mild injury such as a concussion, when he lacerated his head in July 1962. As such, the Board finds that there is no evidence of a TBI in service and the claim of service connection for residuals of a TBI is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The Board notes that this conclusion does not explicitly preclude the Veteran’s claim of service connection of migraine headaches, it merely precludes granting that claim as a residual of TBI. That claim is addressed in more detail in the below remand. 3. Entitlement to service connection of a right knee condition 4. Entitlement to service connection of a left knee condition The Veteran seeks service connection of a bilateral knee condition. The Board finds that the claims should be denied. As an initial matter, the record does not reflect a presently diagnosed condition in either knee. Regardless, the Veteran is competent to report observable symptoms in the knees such as pain. The Board notes that the Veteran has not provided any such narrative or explanation beyond his claim of service connection for a knee condition. A review of the Veteran’s service treatment records has not revealed any complaints of knee issues in service. There are no indications that the Veteran sustained an injury to either knee in service. Upon separation from active service, no issue or injury to either knee was reported or recorded. For his part, the Veteran has not provided any type of narrative or explanation regarding the onset of his knee condition or why he believes it related to active service. Absent evidence of an in-service incident, illness or injury affecting the Veteran’s knees, the Board must deny these claims as failing the second criteria of service connection. To the extent that the Veteran has not been provided an examination in connection with these claims, absent an in-service event or injury, the duty to assist does not require VA an examination be provided. 38 C.F.R. § 3.159(c)(4)(i). The Board notes that there is no evidence attributing the Veteran’s present condition to “arthritis,” nor any evidence that his condition had onset within one year of separation from active service. Therefore, consideration on a presumptive basis is not supported in this matter. In short, the Board finds that the Veteran did not sustain an in-service incident, illness or injury to his knees, and his present condition did not have onset during a presumptive period of service connection. As such, the claims of service connection for right and left knee conditions are denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection of migraine headaches is remanded Although the Board has concluded that the Veteran did not sustain a TBI during active service, the Board finds that the claim of service connection for migraine headaches should be remanded for further development on its own merits. The record reflects at least three complaints of headaches during active service, beginning in August 1962 and continuing periodically throughout service. He was not noted to have a headache disorder at the time of enlistment. Given that there are at least three documented complaints of headache pain in service, and given the Veteran’s assertion that his headaches are related to active service, the Board finds that the low threshold for providing a VA examination has been met, and an examination should be scheduled to fully assess this claim. 2. Entitlement to service connection of a pulmonary condition is remanded The record does not reflect a specific presently diagnosed pulmonary condition. Nonetheless, the Veteran is competent to report present breathing difficulties. The Board further notes that the Veteran has provided specific citations to his service-treatment records documenting consistent complaints of coughing throughout active service. Therefore, to the extent that the Veteran may report present pulmonary symptoms, and has noted a history of pulmonary symptoms in service, the Board finds that the low threshold to provide an examination has been triggered in this matter, and will remand it so that an examination may be scheduled. The matters are REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his claim. 2. Schedule the Veteran for a VA examination for his headache disability The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: does the Veteran has a present headache disorder? If so, is the present headache disorder at least as likely as not related to service, including the in-service complaints of headaches throughout his service treatment records. A rationale should be provided for the opinion given. 3. Schedule the Veteran for a VA examination for his headache disability The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: does the Veteran has a present pulmonary condition or disability? If so, is the present pulmonary disorder at least as likely as not related to service, including the in-service complaints of coughing throughout his service treatment records. A rationale should be provided for the opinion given B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Pryce, Counsel