Citation Nr: 21073537 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 18-31 833 DATE: December 9, 2021 ORDER Entitlement to service connection for a left ear scar is granted. Entitlement to service connection for a stomach condition (claimed as gastroenteritis) is denied. REMANDED Entitlement to service connection for a right knee scar is remanded. Entitlement to a rating in excess of 10 percent for a lumbar strain, claimed as back condition, with invertebral disc syndrome (IVDS), is remanded. Entitlement to a rating in excess of 10 percent for pseudofolliculitis barbae is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's left ear scar is causally related to removal of a left earlobe cyst during military service. 2. The evidence does not show that a current stomach condition is etiologically related to military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left ear scar have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a stomach condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from September 1965 to June 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Legal Criteria Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for left ear scar The record shows that the Veteran has a scar on his left anterior ear measuring 1.5 centimeters (cm) in length by 0.2 cm in width. He had surgery to remove a cyst on his left ear during military service in February 1981. The question for the Board is whether there is a nexus between the current scar and military service. In this case, the Board finds that the Veteran's lay reports of a left ear scar lasting since the surgery during military service are sufficient to establish a nexus under an equipoise standard. The ability to see a scar and report its continued existence since military service does not require complex medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The record does not show information that undermines the Veteran's credibility on this issue or otherwise suggests a different cause of the left ear scar. Accordingly, with resolution of reasonable doubt in the Veteran's favor, the Board finds that service connection may be granted for the left ear scar. See 38 U.S.C. § 5107(b). 2. Entitlement to service connection for a stomach condition Service treatment records reflect that the Veteran was treated for episodes of acute gastroenteritis during military service, including in December 1976. The questions for the Board are (1) whether there is a current chronic stomach disability and (2) whether there is a nexus between a current chronic stomach disability and the episodes of gastroenteritis reported during military service. The Veteran underwent a VA examination in April 2014. The examiner did not diagnose a chronic stomach condition. He documented the Veteran's subjective reports of abdominal pain but noted that the Veteran was not on any medications for a stomach condition. After reviewing the claims file, the examiner found that it is less likely than not that a stomach condition was incurred in or caused by military service. He explained that viral infections of the gastrointestinal tract are self-limiting, and there is no evidence of a chronic or recurrent stomach condition related to service. He concluded that it is less likely than not that the stomach condition in service has any residuals or progression. The Board has reviewed the remainder of the Veteran's VA and private medical records. Such records do not show evidence of a nexus between the acute episodes of gastroenteritis during military service and a current stomach condition to the extent that service connection is appropriate. 38 C.F.R. § 3.303. After reviewing the record, the Board finds that the evidence does not support a nexus between the Veteran's episodes of acute gastroenteritis during military service and a current chronic stomach disorder. The April 2014 VA examiner opined that it is less likely than not that any stomach condition is related to service. He reviewed the claims file and rendered a persuasive rationale consistent with his expertise. His findings are entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran's lay statements were considered. Nevertheless, the ability to opine as to an etiological nexus between episodes of acute gastroenteritis during military service and current abdominal pain requires specialized medical knowledge of the digestive system and human anatomy that is beyond the capacity of a lay person. In sum, as the element of a nexus has not been met, the claim of service connection for a stomach condition must be denied. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits...."). REASONS FOR REMAND 3. Entitlement to service connection for a right knee scar The above claim must be remanded for an adequate medical opinion. 38 U.S.C. § 5103A(d). The April 2014 VA examiner found that the Veteran has a 3 cm scar, described as "barely visible," located on the inferior right knee region. Service connection is established for a right knee strain; however, service treatment records do not show a scar accompanying any right knee injury. The Veteran described having a motor vehicle accident during military service in 1967, but the Board does not see evidence of a motor vehicle accident in the medical records. Rather, the Veteran sought treatment and was service-connected for a right knee strain with no obvious traumatic injury. Moreover, when asked to provide a medical opinion, the VA examiner stated that "there are 400 pages of medical records, please pull and sort pertinent records or assign medical review to another provider." Given the conflicting evidence and insufficient medical opinion, the Board is left in doubt as to the nature and etiology of the Veteran's scar of the right knee. The matter must be remanded for an adequate VA examination and medical opinion. The Board notes that the Veteran submitted correspondence describing the severity of his right knee symptoms, which suggests that he may desire a higher evaluation for his right knee strain. See VA Form 21-4138, June 2018. Nevertheless, the Board emphasizes that the only issue for appellate consideration relating to the right knee is service connection for a right knee scar, which is separate and distinct from the rating for his right knee strain. 38 U.S.C. § 7105. If the Veteran wishes to file a claim for an increased rating for his right knee strain, he must do so by filing the appropriate form as prescribed by the Secretary. 38 C.F.R. § 3.155. 4. Entitlement to a rating in excess of 10 percent for a lumbar strain, claimed as back condition, with IVDS 5. Entitlement to a rating in excess of 10 percent for pseudofolliculitis barbae The above claims must be remanded for VA examinations documenting the current severity of the disorders. The Veteran's last VA examinations for his lumbar spine and pseudofolliculitis barbae occurred in April 2014, almost eight years ago. The record suggests that his disorders may have worsened since that time. See VA Form 21-4138, June 2018; VA Form 9, June 2018. The Board will order new VA examinations documenting the current severity of the Veteran's disorders before adjudicating these claims on the merits. See 38 C.F.R. § 3.327. The matters are REMANDED for the following actions: 1. Secure for the record copies of complete updated clinical records of all VA and non-VA treatment the Veteran has received for the disorders on appeal. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his right knee scar. The examiner is asked to review the claims file, and to opine on the following: (a) Is it at least as likely as not that any right knee scar had its onset during or is etiologically related to military service? (b) Is it at least as likely as not that any right knee scar is proximately due to or a result of a service-connected disability, to include right knee strain? (c) Is it at least as likely as not that any right knee scar underwent any incremental increase in disability, regardless of its permanence, due to a service-connected disability, to include right knee strain? The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Any "incremental increase in disability" need not be permanent. A complete rationale should be provided for all opinions. The examiner is asked to consider and discuss relevant lay and medical evidence, to specifically include: Service treatment records, including reports of a right knee strain in July 1984 The Veteran's lay contentions that his scar is related to military service or to a service-connected right knee strain Private medical records, including from Dr. R.D. received in 2014 and 2016 The examiner is reminded that the term "at least as likely as not," does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against. 3. Schedule the Veteran for an orthopedic examination with an examiner with appropriate expertise to assess the severity of his lumbar spine disability. The virtual folder should be made available to the examiner for review in conjunction with the examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. The examination of the spine should include range of motion studies. Regarding range of motion testing, the examiner should report the point (in degrees) at which pain is elicited, as well as whether there is any other functional loss due to pain, weakened movement, excess fatigability, incoordination, or flare-ups. These determinations must be expressed in terms of the additional limitation of motion in approximate degrees due to each functional factor that is present. The examiner should report on whether there is functional loss due to limited strength, speed, coordination or endurance. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The examiner should attempt to estimate additional loss of function during such flare-ups and such additional loss should be expressed in degrees of motion. The Court has held that an inability to observe a flare-up is an insufficient basis for not providing an estimate on additional functional limitation. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. The examiner should also describe all neurologic manifestations, to include, but not limited to bowel or bladder impairment. The examiner is to provide a statement concerning how the lumbar spine disability affects functioning and activities, to include in an occupational setting. The examiner is asked to describe the types of limitations the Veteran would likely experience as a result of his lumbar spine disability. The examiner must provide a comprehensive rationale for the opinions. 4. Schedule the Veteran for a VA dermatology examination to ascertain the severity of his service-connected pseudofolliculitis barbae. It is imperative that the virtual folder be made available to and be reviewed by the examiner. The examiner should provide an opinion as to whether the pseudofolliculitis barbae causes ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or is exceptionally repugnant; or whether there is constant exudation or itching, extensive lesions, or marked disfigurement; or whether it is manifested by exfoliation, exudation or itching, if involving an exposed surface or extensive area. The examiner should state the amount of exposed area affected by the disorder; the amount of the entire body affected by the disorder; and any such treatment or therapy required. The examiner is to provide a statement concerning how the pseudofolliculitis barbae affects functioning and activities, to include in an occupational setting. The examiner is asked to describe the types of limitations the Veteran would likely experience as a result of his pseudofolliculitis barbae. The examiner must provide a comprehensive rationale for the opinions. M.W. Kreindler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, Associate 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.