Citation Nr: 21067452 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-27 501 DATE: November 4, 2021 ORDER Service connection for anemia is denied. A disability rating in excess of 10 percent for a left leg scar is denied. REMANDED Entitlement to service connection for a cardiac condition is remanded. Entitlement to service connection for asthma is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for gout, to include as due to a cardiac disability, is remanded. Entitlement to service connection for residuals of gastric bypass surgery is remanded. Entitlement to a disability rating in excess of 40 percent for reflex sympathetic dystrophy (RSD) is remanded. Entitlement to a disability rating in excess of 10 percent for right knee chondromalacia is remanded. Entitlement to a disability rating in excess of 10 percent prior to November 2, 2012, in excess of 30 percent from January 1, 2014, and in excess of 60 percent from March 1, 2017, is remanded. FINDINGS OF FACT 1. The Veteran's diagnosed anemia is not shown to be causally or etiologically related to his military service. 2. The Veteran's service-connected left leg scar is manifested by a single painful scar. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for anemia have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for a disability rating in excess of 10 percent for a left leg scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.118, Diagnostic Codes 7800 to 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1971 to January 1973. The Veteran and his wife testified before the undersigned at a videoconference hearing held in December 2019. A transcript of that hearing has been associated with the record. These matters were previously before the Board in February 2020, at which time they were remanded for further development. Service connection anemia Service connection may be granted for a disability resulting from a 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 that 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). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran asserts, without specific detail, that his anemia is due to his military service, thus warranting service connection. In July 2021, in response to the Board's February 2020 remand, he underwent a VA examination. At that time, a diagnosis of anemia was confirmed. On the question of nexus, the examiner concluded it was less likely than not that the Veteran's anemia was due to his military service. She explained that the Veteran developed anemia due to acute kidney injury and chronic kidney disease. The examiner specifically noted a June 2020 treatment record which explained that the Veteran's anemia was due to his chronic kidney disease. The Board notes that the Veteran's kidney conditions are not service connected. The Board affords great probative weight to the July 2021 opinion, as the examiner clearly considered all of the pertinent evidence of record, to include the Veteran's relevant medical history and his contentions, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two when she concluded that the Veteran's anemia developed due to chronic kidney disease, not service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Notably, there is no medical opinion to the contrary. To the extent that the Veteran himself asserts that his anemia is the result of his military service, the Board does not question the Veteran's sincerity in his belief that there is a correlation. While he is certainly competent to provide information regarding symptoms and a medical history, there is no indication that he possesses the requisite medical training or expertise necessary to render him competent to offer evidence on matters such as a medical diagnosis or causation. See Layno v. Brown, 6 Vet. App. 465 (1994); see Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). As such, the Board accords his statements regarding the nature and etiology of his anemia no probative weight. Even if the Veteran was competent to provide an etiological opinion, which laypersons are able to do in some instances, the Board finds that the reasoned conclusion of the July 2021 examiner is more probative than the Veteran's assertions. The medical professional has the training, experience, and expertise that the Veteran is not shown to have. As such, his opinion is outweighed by the opinions provided by the examiner. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's service connection claim for anemia. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. The claim is denied. Increased disability rating left leg scar Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran's symptoms to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by assessing the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the ratings schedule. Individual disabilities are assigned separate Diagnostic Codes, and ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2. If there is a question as to which evaluation should be applied to the veteran's disability, 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. The primary focus in a claim for increased rating is the present level of disability. Although the overall history of the veteran's disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities due to scars are rated under Diagnostic Codes 7800 through 7805. 38 C.F.R. § 4.118. The Veteran's left knee scar is currently evaluated as 10 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 7804 for unstable or painful scars. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. Diagnostic Code 7804, however, was not changed by the August 13, 2018, amendments. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrants a 10 percent rating. Three or four scars that are unstable or painful warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. In June 2016, the Veteran underwent a VA examination. At that time, the surgical scar of the left knee was evaluated. A left knee scar, the residual of a total knee replacement surgery, was present and painful. It was tender to light touch and worse discomfort found with pressure. The scar was found to be unstable, with frequent loss of covering of skin over the scar. Measurements showed the scar was 74 square centimeters in size, at a length of 37 centimeters. The examiner found that the Veteran was unable to flex his knee due to the scar, but that the scar did not interfere with his ability to work. At the December 2019 hearing before the Board, the Veteran testified without further detail that his knee scar was disfigured, swollen, painful, and was limiting. In March 2021, in response to the Board's February 2020 remand, the Veteran was afforded a VA scars examination. That examination confirmed that the Veteran's left knee scar was painful and numb. There was no instability found. The scar measured 55 centimeters in length, without underlying tissue damage. The examiner described the scar as having thickened and stiff skin. Based on the evidence of record, the Board must find that the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent under Diagnostic Code 7804 because the Veteran's scar is not manifested by three or four scars that are unstable or painful. The Board has also considered the other diagnostic codes pertaining to scars. The Veteran's left knee scar, however, is not of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage. Although it is superficial and not associated with underlying soft tissue damage, it does not cover an area or areas of 144 square inches or greater. Therefore, Diagnostic Codes 7800 through 7802, both prior to and from August 13, 2018, do not apply. Furthermore, the evidence of record shows there are no other disabling effects not considered in a rating provided under Diagnostic Codes 7800 through 7804 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805. The Veteran does not contend otherwise. In reaching this conclusion, the Board recognizes the Veteran's sincerely held belief that his scar is more severe than as reflected by the currently assigned rating, and notes he is competent to describe his symptoms and their effects on his daily life and occupation. See Layno, supra. However, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert, supra. The Board finds the medical evidence in which professionals with medical expertise examined the Veteran, completed necessary testing, acknowledged his reported symptoms, and described the manifestations of his disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of such condition. The Board has also considered whether additional staged ratings under Hart, supra, are appropriate for the Veteran's service-connected scar; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, in connection with the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). As in all of its decisions, the Board has considered the benefit of the doubt doctrine in this case. However, the preponderance of the evidence is against the Veteran's claim for an increased rating and the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert, supra. The claim is denied. REASONS FOR REMAND Entitlement to service connection for a cardiac condition Entitlement to service connection for asthma Entitlement to service connection for OSA Entitlement to service connection for gout Entitlement to service connection for residuals of gastric bypass While the Board sincerely regrets further delay in this matter, it finds that additional development is required before the Veteran's multiple, remaining claims may be adjudicated on their merits. The Veteran underwent examinations for each of these conditions in March 2017. At that time, the examiner concluded in each case that based on her review of the evidence, it was less likely than not that any of the claimed conditions were due to service. As rationale, she asserted (and repeated verbatim in each case) that it could not be determined that the Veteran incurred any of the conditions while in, or within one year of his separation from, the Army. A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. See Stefl, supra. Here, the repeated medical opinions offered by the March 2017 examiner are conclusory and lack any explanation to support their respective conclusions. Thus, the Board must find that new examinations are necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). Additionally, the Board notes that the Veteran testified in December 2019 that he believed he developed asthma as a result of his exposure to some sort of gas while in boot camp. This theory has not yet been addressed by a medical professional. Finally, the Board notes that in a March 2017 examination report, it was determined that the Veteran developed ankle gout due to his cardiac condition. As service connection is not in effect for a cardiac condition, such a finding is premature but noted. Increased disability rating RSD The Veteran's service-connected RSD has been rated throughout the appeal period under Diagnostic Code 8520, which rates impairment of the sciatic nerve. In March 2021, the Veteran underwent a VA examination in relation to his RSD, at which time the examiner found severe incomplete paralysis of the femoral nerve. Importantly, the Board notes that there is no other mention or evaluation of the femoral nerve in any of the Veteran's records, and this appears to be the first finding related to such impairment. The lower extremities include five nerve branches, and separate ratings may be assigned for symptoms that are separate and distinct, which do not overlap, and which are attributed to different lower extremity nerves, such as the sciatic and femoral. Based on the report of the March 2021 examination, the record contains inconsistent information as to what nerve branches are involved in the Veteran's RSD. Thus, the Board finds that an opinion is needed to determine whether any nerve branches other than the sciatic nerve are involved and, if so, to what degree. In addition, the March 2021 examination report contained no information regarding any sciatic nerve impairment at that time. Evaluation of the Veteran's sciatic nerve is necessary in order to properly decide his claim for an increased disability rating. Barr, supra. For these reasons, the Board finds that a new examination is warranted. Increased disability rating - knees The Veteran underwent a VA knee and lower leg examination in March 2021. Upon review, the Board must find that it is incomplete, contradictory, and inadequate for purposes of rating the Veteran's service-connected knees. Importantly, the examiner failed to estimate the Veteran's range of motion during flare-ups. Despite attempts by the agency of original jurisdiction to remedy this omission, an August 2021 addendum opinion by the examiner failed to provide not only left knee estimations, but also answers to other questions required by the examination. In addition, the Board questions the thoroughness of the March 2021 examination report. The examiner indicated therein that there had been no knee surgeries performed, despite the fact that the Veteran clearly has had left knee total joint replacement on multiple occasions, and the examiner determined that the Veteran did not experience any instability of the knees despite the fact that both the Veteran and his wife testified at the December 2019 hearing that the Veteran experienced instability to the point of falling, on multiple occasions. For all of these reasons, the Board finds that a new examination of the Veteran's knees is necessary. Barr, supra. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of any cardiac condition. The claims file should be provided to the clinician for review. Based on a review of the claims file and the Veteran's physical examination, the clinician is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any diagnosed cardiac disability is due to the Veteran's active service or any incident of service. A detailed and fully-supported rationale must be provided for any opinion(s) expressed. 2. Schedule the Veteran for an examination to determine the nature and etiology of his asthma. The claims file should be provided to the clinician for review. Based on a review of the claims file and the Veteran's physical examination, the clinician is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that asthma is due to the Veteran's active service or any incident of service, to include his reported exposure to gasses while in training. A detailed and fully-supported rationale must be provided for any opinion(s) expressed. 3. Schedule the Veteran for an examination to determine the nature and etiology of any obstructive sleep apnea (OSA). The claims file should be provided to the clinician for review. Based on a review of the claims file and the Veteran's physical examination, the clinician is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that OSA is due to the Veteran's active service or any incident of service. A rationale must be provided for any opinion(s) expressed. 4. Schedule the Veteran for an examination to determine the nature and etiology of the Veteran's gout. The claims file should be provided to the clinician for review. Based on a review of the claims file and the Veteran's physical examination, the clinician is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that gout is due to the Veteran's active service or any incident of service. A detailed and fully-supported rationale must be provided for any opinion(s) expressed. 5. Schedule the Veteran for an examination to determine the nature and etiology of any residuals of gastric bypass surgery. The claims file should be provided to the clinician for review. Based on a review of the claims file and the Veteran's physical examination, the clinician is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that residuals of gastric bypass surgery are due to the Veteran's active service or any incident of service. A separate opinion and rationale should be provided for each of the residuals of gastric bypass surgery currently experienced by the Veteran, if possible. A detailed and fully-supported rationale must be provided for any opinion(s) expressed. 6. Schedule the Veteran for updated examination to determine the current nature and severity of his service-connected reflex sympathetic dystrophy (RSD). As part of the examination, the examiner is to indicate whether there is objective evidence supporting a finding of service-related involvement of the femoral nerve, as noted in the March 2021 examination report. If so, the examiner is requested to identify those findings and comment on the level of severity since March 2021. The examiner should also indicate if there is any overlap with findings pertaining to the sciatic nerve. 7. Schedule the Veteran for updated examination to determine the current nature and severity of his service-connected right and left knee chondromalacia. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.