Citation Nr: 21004898 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-22 615 DATE: January 28, 2021 ORDER Entitlement to service connection for a back disorder, to include as due to a service-connected disorder is denied. Entitlement to a compensable rating for a left leg burn scar is denied. FINDINGS OF FACT 1. A back disorder was not manifest in service, it is not otherwise attributable to active service, nor was it caused by or permanently made worse by a service-connected disorder. Arthritis was not shown until many years after service separation. 2. The Veteran has one scar on his left leg from residuals of an in-service burn that measured during the course of this appeal, at most, a length of 5 cm and a width of 5 cm. He is separately compensated for a tender left leg scar, rated 10 percent disabling. CONCLUSIONS OF LAW 1. A back disorder was not incurred in or aggravated by service, nor was it caused or aggravated by a service-connected disorder. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for a compensable rating for a left leg burn scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.118, Diagnostic Code (DC) 7802. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1976 to March 1979. A Board of Veterans’ Appeals (Board) hearing was held in July 2019 via videoconference before the undersigned. A transcript of this hearing is contained within the claims file. The Board reopened the back claim and remanded both claims in October 2019 for further evidentiary development. The case has returned to the Board for appellate review. The Board notes that a November 2020 contract VA examination was conducted for the Veteran’s back claim after the appeal was certified to the Board in October 2020 and was not accompanied by a waiver of Agency of Original Jurisdiction (AOJ) consideration. However, the November 2020 examination report is cumulative of prior medical evidence and does not contain pertinent information regarding the etiology of the Veteran’s back disorder beyond that previously considered in the September 2020 supplemental statement of the case (SSOC). Accordingly, remand is not warranted in this case and appellate consideration may proceed. 38 C.F.R. §§ 19.37, 20.1304; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). 1. Entitlement to service connection for a back disorder, to include as due to a service-connected disorder Generally, service connection may be granted for a disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). 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). Service connection for a disability requires evidence of: (1) The existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also be established on a secondary basis for disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); Allen v. Brown, 8 Vet. App. 374 (1995). To prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran is seeking entitlement to service connection for a back disorder, to include as due to a service-connected disorder. Specifically, the Veteran contends that his service-connected bilateral knee disorders aggravated his back disorder. See July 2019 Hearing Transcript. The Veteran asserts that his altered gait because of his knees caused back pain. Regarding the existence of a current back disorder, the Veteran has been diagnosed with spinal fusion and degenerative arthritis of the spine, as confirmed by the September 2020 VA examiner. Thus, there is evidence of a current back disorder. Service connection has been established for the Veteran’s bilateral knee disorders. Thus, there is evidence of service-connected disorders. The remaining question is whether there is a medical nexus between the Veteran’s current back disorder and his military service or his service-connected knee disorders. The Veteran’s service treatment records (STRs) are silent as to complaints or treatment for a back disorder. Specifically, the March 1976 enlistment examination and December 1978 separation examination both contain an indication of a normal spine during the clinical evaluations. The Veteran’s post-service medical treatment records are silent as to complaints, treatment, or diagnoses pertaining to a back disorder until a January 2000 diagnosis of lower back pain with evidence of disc disease. At the November 2007 VA examination for the Veteran’s knees, the Veteran reported a history of a lumbar laminectomy in 1991 followed by a lumbar spinal fusion which were related to work-site injuries. The Board notes that the November 2007 examination was for the Veteran’s knees and not his back, so the Board did not rely on this examination when making this present decision, but this examination provides the Board with a general notion of the Veteran’s back disorder as he reported it in relation to his knees throughout the course of this appeal. The June 2015 VA examiner reviewed the Veteran’s VA and private treatment records and confirmed the Veteran’s back diagnoses as intervertebral disc syndrome, spinal fusion, and degenerative arthritis of the spine. The examiner opined that the Veteran’s back disorder is less likely than not proximately due to or the result of the Veteran’s service-connected disorders. The examiner further provided that the Veteran’s back disorder is not the result of the Veteran’s military service but the result of driving trucks and lifting heavy weight post-service. The examiner provided the rationale that the documentation of the Veteran’s back shows that his back disorder is related to working in his post-service job for years, including driving trucks and lifting heavy bags and boxes. The examiner indicated that the Veteran’s knee disorders made it difficult for the Veteran to recover from his second back surgery, but also indicated that the back disorders existed prior to the surgery. The Veteran’s private physician submitted a December 2018 letter stating that the Veteran injured both knees during his military service, the pain has persisted until now, and it is more likely than not that his knee pain and altered gait mainly caused his back pain and contributed to his lumbar disc disease. The Board does not afford the private physician’s statement much probative weight as to the issue of medical nexus between the Veteran’s back and knees as there is no indication that the physician reviewed the Veteran’s claims file and the physician did not provide a rationale to support this opinion. As previously mentioned, the Board remanded this claim in October 2019 for readjudication as new evidence was associated with the claims file and the AOJ had not issued a statement of the case (SOC) since May 2016. The Board’s remand directives instructed the AOJ to schedule additional examinations if the review revealed information requiring such. Pursuant to the Board remand, the AOJ reviewed the additional evidence and afforded the Veteran a VA examination in September 2020. The September 2020 examiner reviewed the Veteran’s claims file and opined that the Veteran’s back disorder is less likely than not proximately due to or the result of the Veteran’s service-connected knee disorders. The examiner provided the rationale that the Veteran’s back pain started back in the late 1980s/early 1990s and the examiner was unable to see any documentations showing worsening knee pain or symptoms which could have affected his gait or back issues. The examiner further provided that while the back and knees share an indirect functional capacity with standing/gait, they do not share a direct functional relationship. The Board finds this opinion well-reasoned and thoroughly considered the Veteran’s complete medical history and is accordingly afforded high probative value. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). The Board acknowledges the Veteran’s lay statements that he believes his back disorder is related to his knees. While the Veteran is competent to address his symptomology, he is not competent to provide a medical nexus opinion regarding this issue. The Veteran is a lay person, so his contentions and opinions are of less probative weight and persuasive value than the unfavorable medical evidence and September 2020 opinion. Additionally, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). In light of the above, the Board determines that a preponderance of the evidence shows the Veteran’s back disorder was not incurred in or aggravated by service nor was it caused or aggravated by a service-connected disorder. The September 2020 examiner provided a comprehensive opinion after review of all the pertinent evidence. Reference was made to pertinent studies, statements, and clinical history. This is, in the Board’s view, persuasive, especially with consideration given to the entire record. For the above reasons, the Veteran’s claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C.A. § 5107. 2. Entitlement to a compensable rating for a left leg burn scar Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Additionally, it is possible for a veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating 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. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the relevant overall temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as "pyramiding," must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14. Where there is a question as to which of two ratings 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran is seeking entitlement to higher disability ratings for his left leg scar. As an initial matter, the Board notes that the Veteran has one scar on his left leg, presently measuring approximately at a length of 1 cm and a width of 3.5 cm. During the course of this appeal, the measurements of the scar were, at most, a length of 5 cm and a width of 5 cm. See Private Disability Benefits Questionnaire (DBQ) dated August 2013 and received by the VA in November 2013. The Veteran’s left leg burn scar is rated noncompensable under DC 7802 from June 17, 2014. The Veteran is in receipt of a separate 10 percent rating under DC 7804 for a left leg painful scar from May 14, 2015. That rating is not currently at issue. The Board notes that during the pendency of this appeal, the applicable rating criteria for scars were amended, effective August 13, 2018. See 83 Fed. Reg. 32,592 (July 13, 2018), revised, 83 Fed. Reg. 38,663 (Aug. 7, 2018). A review of the August 13, 2018 amendments shows that only Codes 7801 and 7802 were revised. The August 2018 amendments apply to claims that were pending on August 13, 2018 (such as here), if the new regulations are more favorable to the Veteran's claim. Therefore, the Board will consider the Veteran's claim under both the old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. Under the scar regulations in effect prior to and since August 13, 2018, DC 7800 provides ratings for scars of the head, face, and neck. The Veteran's scars are related to his left leg, and do not involve the head, face, and neck; thus, further discussion of DC 7800 is not necessary. 38 C.F.R. § 4.118. Pre-August 13, 2018, DC 7801 provides that scars of other than the head, face or neck that are deep and nonlinear are assigned ratings based on the area or areas of the scar(s). Effective August 13, 2018, DC 7801 was amended to remove characterization as "deep and nonlinear scars" which was replaced with characterization of scars with "underlying soft tissue damage." Pre-August 13, 2018, DC 7802 provides a 10 percent rating for scars of other than the head, face or neck that are superficial and nonlinear if the area or areas of the scars is 144 sq. in. (929 sq. cm.) or greater. Id. DC 7802 was amended to remove "superficial and nonlinear" and was replaced with "not associated with underlying soft tissue damage. DC 7804 was unaffected by the revision of the rating criteria effective August 13, 2018. Based on either the pre-August 13, 2018 or the new rating criteria, under DC 7804, one or two scars that are unstable or painful warrant a 10 percent rating. A 20 percent rating requires three or four scars that are unstable or painful. A 30 percent rating requires five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. The Board is cognizant of the potential for pyramiding with respect to the assignment of separate disability ratings under DCs 7802 and 7804. In this regard, evaluation of the same disability or the same manifestations of disability under multiple diagnoses (i.e., pyramiding) is to be avoided. 38 C.F.R. § 4.14. However, DC 7804, Note (3) provides that scars can receive a separate evaluation under DC 7802, despite also being rated under DC 7804. See 38 C.F.R. § 4.118. Therefore, ratings for the Veteran's scars under these DCs are permissible. Under DC 7805, disabling effects of scars not considered in a rating under DCs 7800 to 7804 are evaluated under other appropriate DCs. 38 C.F.R. § 4.118, DC 7805. The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Board emphasizes that the cited amendments do not contain any substantive changes in the regulations that impact the Veteran's service-connected scar. As such, the Board finds there is no prejudice to the Veteran in the Board's consideration of the amended regulations in this appeal. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993); 38 C.F.R. § 20.904. In November 2013, the VA received a private scar DBQ that stated the Veteran has one painful scar that was not unstable. The private physician listed the scar as superficial non-linear measuring at 5 cm x 5 cm with dysesthesia over the scar. The physician also submitted a letter dated February 2014 stating that the Veteran cannot wear long socks because it irritates the site of the burn and instead, he wears short socks. An April 2014 rating decision denied service connection for a left ankle disorder to include scars. The August 2014 VA examiner marked that the Veteran’s scars were neither painful nor unstable with frequent loss of covering of skin over the scar. The examiner described the scar as superficial non-linear measuring at 1.0 x 3.5 cm, approximate total area 3.5 cm2, no deep non-linear scars were noted. A September 2014 rating decision granted service connection for a left leg burn scar and assigned a noncompensable rating from June 17, 2014. An April 2015 VA medical treatment note shows evidence of a painful left leg scar that prevents the Veteran from wearing socks, and even minimal contact with the burn site can cause significant discomfort. A July 2015 rating decision granted service connection for a left leg painful scar and assigned an evaluation of 10 percent under DC 7804, effective May 14, 2015. The 10 percent rating was provided for one scar that is unstable or painful. The rating decision also continued the noncompensable rating for the evaluation of left leg burn scar under DC 7802. The Veteran’s VA physician submitted a letter dated February 2016 documenting the pain and medical condition of the Veteran’s left leg scar. The physician documented dysesthesias, constant burning, numbness, tingling, pins and needles; the scar is painful and unstable. As previously mentioned, the Board remanded this claim in October 2019 for readjudication as new evidence was associated with the claims file and the AOJ had not issued a SOC since May 2016. The Board’s remand directives instructed the AOJ to schedule additional examinations if the review revealed information requiring such. Pursuant to the Board remand, the AOJ reviewed the additional medical evidence and afforded the Veteran a VA examination in September 2020. The September 2020 VA examiner noted one painful but stable scar, Veteran reported pain to palpation of scar, and the scar measured at 1 cm x 3 cm. Based on the foregoing, the Veteran is not entitled to a compensable disability rating under DCs 7801 or 7802. Additionally, the Veteran is already in receipt of a separate 10 percent disability rating under DC 7804. The Veteran is not entitled to a compensable disability rating under DCs 7801 or 7802, because at worst, the Veteran's left leg scar measured to 25 square centimeters from the November 2013 Private DBQ. As discussed above, during the August 2014 and September 2020 VA Scar Examinations, the Veteran's scar was approximately 3.5 square centimeters total and were superficial and nonlinear. The Veteran is not entitled to a compensable rating under DC 7801, because at no time has the Veteran's left leg scar been described as deep and nonlinear. Furthermore, it does not meet the minimum area criteria of at least 39 square centimeters as required under DC 7801. Although the Veteran's scar has been described as superficial and nonlinear, at worst it has measured 25 square centimeters in November 2013. Therefore, it does not meet the minimum criteria for a compensable rating under DC 7802 of 929 square centimeters. Additionally, the Veteran is already in receipt of a 10 percent rating under DC 7804. A higher rating is not warranted as the Veteran only has one scar of the left lower leg that is painful and unstable. The Veteran does not have multiple scars. As such a separate compensable rating is not warranted for this scar.   The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claims, the doctrine is not applicable, and the claims must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Frazier, Associate Attorney 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.