Citation Nr: 21004450 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 13-31 761 DATE: January 27, 2021 ORDER Entitlement to service connection for a skin condition, to include chloracne, as due to herbicide exposure, is denied. Entitlement to a 10 percent rating, but no higher, for the entire appeal period for scar near left orbit (“left eye scar”) is granted, subject to the laws that govern the payment of monetary benefits. FINDINGS OF FACT 1. The probative medical evidence of record has not shown that the Veteran suffers from a currently diagnosed skin disability that is the result of military service. 2. Throughout the period of appeal, it may reasonably be concluded the Veteran’s single left eye scar has been manifested by pain; there have been no showings of any of the 8 characteristics of disfigurement. CONCLUSIONS OF LAW 1. A skin disability was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2019). 2. The criteria for an evaluation of 10 percent throughout the appeal period for a left eye scar are met. 38 U.S.C. § § 1155 (2012); 38 C.F.R. § § 4.118, Diagnostic Code (DC) 7804 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to March 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran appeared and testified at a video conference hearing before the undersigned Veterans Law Judge. These claims were previously before the Board in January 2018 and December 2019, but remanded for additional development. That development having been completed; these claims are once again before the Board. While on remand, the Board notes that the RO granted the Veteran an increased evaluation of 10 percent, effective January 14, 2020, for his left eye scar. It is noted that applicable law mandates that when an appellant seeks an increased rating, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See A.B. v. Brown, 6 Vet. App. 35 (1993). As there are higher evaluations available for the service-connected left eye scar and the increased evaluation does not cover the entire period of appeal, the Veteran's claim is still in controversy and shall continue to be adjudicated by the Board. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303 (a). Service connection may also be warranted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such service as shown by the service record, the official history of each organization in which the Veteran served, his or her treatment records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154 (a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107 (a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he currently suffers from a skin disability. In this regard, the Veteran has attributed such condition to his service in the Republic of Vietnam and exposure to agent orange. A review of the Veteran's service treatment records is negative for any showing of complaints, treatment, or diagnoses of any skin disabilities, other than scars from shrapnel wounds for which he is already service-connected. A review of the Veteran's post-service outpatient treatment records does not reveal any complaints, treatment or diagnoses of any skin disabilities, other than his service-connected scars, since leaving military service. The Veteran was provided with a VA examination in January 2020. At the examination, the examiner determined that, despite the Veteran’s subjective complaints of a history of intermittent rashes since leaving military service, there was no objective medical evidence to support a diagnosis of any current skin disability. The threshold requirement for the granting of service connection is evidence of a current disability. In the absence of evidence of a current disability, in this matter a diagnosis of a skin disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement in a claim of service connection of current disability "is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim." See McClain v. Nicholson, 21 Vet. App. 319 (2007). Here, the totality of the competent evidence does not reflect that the Veteran has or has had a diagnosis of a skin disability during the relevant period on appeal. Rather, the Veteran has shown normal skin findings, with the exception of his scars for which he is already service-connected, throughout the period of appeals. A review of current medical evidence since the filing of the Veteran's claims does not show any relevant current diagnosis for any of the aforementioned claimed disability. Last, the Board notes that the Veteran is competent to testify as to a condition within his knowledge and personal observation. Barr v. Nicholson, 21 Vet. App. 303, 308-310 (2007). However, it is clear, based on a detailed review of the statements overall, that the Veteran has no actual specialized knowledge of medicine in general and that he is merely speculating as to whether he has a current diagnosis of a skin disability. In this regard, he is not competent to diagnose such disability, as it requires specialized medical knowledge and specific testing. See 38 C.F.R. § 3.159 (stating that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). As such, the Veteran's statements to the effect that he has a current diagnosis of a skin disability are lacking in probative value. Therefore, the most probative evidence of record reflects that the Veteran lacks a diagnosis of a disability manifested by a skin disorder during the appeals period. Absent the required diagnosis of the claimed disability at any time during the appeals period, there is no current disability to attribute to the Veteran's military service. Brammer, 3 Vet. App. at 223. For the reasons provided above, the preponderance of evidence is against the Veteran's claim. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulation. Gilbert, 1 Vet. App. at 49; 38 C.F.R. § 3.102. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. § Part 4 (2019). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § § 1155; 38 C.F.R. § § 4.1 (2019). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). A veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. The Veteran has a scar near the left eye orbit. He appeals the non-compensable rating prior to January 14, 2020 and 10 percent thereafter assigned for his scar. Scars are evaluated pursuant to DCs 7800, 7801, 7802, 7804, and 7805. 38 C.F.R. § 4.118 (2019). However, only DCs 7800, 7804, and 7805 are applicable to scars of the head, face, or neck, as in the present case. Disfigurement of the head, face, or neck is rated pursuant to DC 7800. Under DC 7800, a 10 percent rating is warranted for one characteristic of disfigurement. A 30 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A 50 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. An 80 percent rating, the highest rating available under DC 7800, is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. Note (1) following DC 7800 identifies 8 characteristics of disfigurement, for the purposes of evaluation under § 4.118: (1) scar 5 or more inches (13 or more cm.) in length; (2) scar at least one-quarter inch (0.6 cm.) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) 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.); and (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Scars that are unstable or painful are rated pursuant to DC 7804. A 10 percent rating is warranted for one or two scars that are unstable or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful. A 30 percent rating is warranted for five or more scars that are unstable or painful. Note (1) defines an unstable scar as one where there is frequent loss of covering of skin over the scar. Note (2) states that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) states that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under this DC when applicable. DC 7805 instructs to evaluate any disabling effect(s) not considered in a rating provided under DCs 7800-04 under an appropriate DC. The Veteran claims that his left eye scar is worse than reflected by his current noncompensable and 10 percent evaluation. In this regard, he first indicated that his scar had been bothering him with symptoms of pain in his June 2012 claim. Additionally, During the April 2017 hearing the Veteran testified that the scar throbs and is painful. He testified that he had been to the emergency room two or three times about eight months prior because of the pain in his eye. He stated that every once in a while, he experiences blurred vision in his left eye. He described an involuntary twitching of his eye, stating that it is always present. During the Board hearing, it was noted that the eye twitch was visible. A review of the Veteran's outpatient treatment records shows that he has been variously treated for complaints of left eye pain and involuntary twitching associated with the left orbital scar. There have been no showings of any of the 8 characteristics of disfigurement. Particularly, in records from 2013, the Veteran was shown to have developed slowing of the optical nerve of the left eye due to damage resulting in blurred vision. Further, records from 2014 to 2015 show that the Veteran complained of pain and twitching in the left eye on several doctors’ visits. The Veteran was provided with a VA scars examination in November 2012. At the examination, the Veteran was diagnosed with a scar on the left eye orbit measuring 1.5 centimeters long by .2 centimeters wide. It was noted that the Veteran’s scar was healed and not painful. No other symptoms were noted. The examiner found that the Veteran's disability had no effect on his employment. The Veteran was provided with an additional VA scars examination in January 2020. At the examination, the Veteran was diagnosed with a scar on the left eye orbit measuring 2 centimeters long by .1 centimeters wide. It was noted that the Veteran complained of and had been treated for pain and twitching associated with this scar. No other symptoms were noted. The examiner found that the Veteran’s disability had no effect on his employment. Following this examination, the RO granted a 10 percent disability rating, effective from the date of this examination. The evidence of record shows that the Veteran has at least one scar of the left eye orbital that may be reasonably characterized as productive of pain throughout the entire appeal period. He has provided competent and credible lay testimony of his experience of pain, twitching, and blurred vision, throughout the appeal period to include with his initial June 2012 filing. The Veteran has remained consistent in his statements to both the Board and to medical providers for the purpose of treatment as seen above. Additionally, the findings in the medical evidence of record, to include the January 2020 VA examination, have all corroborated the Veteran’s statements regarding symptoms. Thus, in accordance with the Rating Schedule, the Veteran's scar would warrant a 10 percent evaluation, as a painful scar throughout the appeal period. In order to warrant higher evaluations, the Veteran's scar must show evidence of the criteria set out previously above. As the medical evidence of record has not shown these manifestations during the appeal period, higher evaluations are not warranted. M. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dodd, Ryan 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.