Citation Nr: 21009590 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 13-34 125A DATE: February 22, 2021 ORDER Entitlement to an initial evaluation for a back disability in excess of 10 percent disabling is denied. Entitlement to an initial evaluation in excess of 30 percent under Diagnostic Code 7806 for multiple lipomas on the chest and abdomen disabling is denied. Entitlement to an initial 10 percent evaluation under Diagnostic Code 7802 for all scars due to multiple lipomas, effective April 28, 2009, is granted. Entitlement to service connection for a cardiac disability is denied. FINDINGS OF FACT 1. During the period on appeal, the Veteran’s back disability was not manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 2. During the period on appeal, the Veteran’s multiple lipomas on the chest and abdomen was not manifested by characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. 3. Resolving reasonable doubt in the Veteran’s favor, during the period on appeal, the Veteran’s scars due to his multiple lipomas were not of the head, face, or neck; were not associated with underlying soft tissue damage; and had a cumulative area of 144 square inches (929 sq. cm.) or greater. 4. The evidence of record does not establish a causal relationship between an in-service event and the Veteran’s cardiac disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial evaluation for a back disability in excess of 10 percent disabling have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5237. 2. The criteria for entitlement to an initial evaluation for multiple lipomas on the chest and abdomen in excess of 30 percent disabling have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Codes 7820-7806. 3. The criteria for entitlement to an initial 10 percent evaluation for all scars due to multiple lipomas have been met effective April 28, 2009. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7802. 4. The criteria for entitlement to service connection for a cardiac disability have not been met. 38 U.S.C. § 1110, 1154, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2005 to April 2009. This appeal comes to the Board of Veterans’ Appeals (Board) from a rating decision dated May 2010 issued by a Department of Veterans Affairs (VA) Regional Office. In its decision, the RO granted service connection for (1) multiple lipomas on chest and abdomen with an evaluation of 30 percent effective April 28, 2009 and (2) chronic, persistent low back strain with an evaluation of 10 percent disabling effective April 28, 2009. The RO also denied service connection for chest pain. The Veteran timely appealed these issues. A Board video hearing was held in September 2018. The hearing transcript has been associated with the Veteran’s file. The judge who held the hearing has retired and in November 2020 the Veteran was notified and given an opportunity to request another Board hearing. As the Veteran did not respond, the Board will proceed to adjudicate the appeal. The Veteran’s appeal has previously been before the Board. In June 2019, the Board remanded the Veteran’s claims for back and cardiac disabilities and multiple lipomas on the chest and abdomen to the Agency of Original Jurisdiction for additional development. The issues have been returned to the Board for adjudication. Increased Ratings A disability rating is determined by applying VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 1. Entitlement to an initial evaluation for a back disability in excess of 10 percent disabling The Veteran contends that the currently assigned 10 percent rating does not adequately reflect the severity of his thoracolumbar spine disability. The period on appeal begins on April 28, 2009, the effective date assigned for the Veteran’s award of service connection for his back disability. In a lay statement dated November 2010, the Veteran wrote, “I have constant pain in the back, sometimes with sharp pain.” At the September 2018 hearing, the Veteran reported that his pain is the same every day and that he took medication for it. He noted that his doctors tell him that is all they can do for his back pain. The RO evaluated the Veteran’s thoracolumbar spine disability pursuant to Diagnostic Code 5237 (lumbosacral or cervical strain), which is rated pursuant to the general rating formula. 38 C.F.R. § 4.71a, Diagnostic Code 5237. Pursuant to the general rating formula, a 10 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, Diagnostic Code 5237. A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. These ratings apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the Veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran’s back disability. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he is less able to bend, turn, or twist would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine not greater than 120 degrees. Additionally, the Veteran did not have muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. On VA examination in November 2009, the Veteran reported that he had low back pain almost constantly. He noted he could sit only with his right side slightly up off the chair seat, and if he sat squarely on the chair, his low back pain would become worse promptly. He noted some weakness in the sense that he had a very hard time if he bent forward to pick something off the floor to return to the vertical posture. He had, however, essentially no stiffness in that area except that perhaps in the morning he would have some difficulty until he was able to stretch out. There was some noted instability in the sense that if he bore weight on his right lower extremity, the pain in that area would lead to his right hip at least partially collapsing if he did not find a wall, the edge of furniture or a crutch to support him. He reported that he could only stand upright for about 10 minutes and then with his left leg taking all of the weight thereafter. He similarly reported that even with the crutch or crutches he could only walk about 10 minutes. His gait was noted as very right antalgic without a crutch. With a crutch in his left hand, he retained some degree of right antalgic, but it was greatly decreased compared to independent motion. Forward flexion was to 70 degrees. With regards to the Veteran’s gait, the examiner noted, “It should be noted that so long as he has right foot pain and walks with a right antalgic gait he will have low back pain on that same side.” A June 2010 medical treatment record noted that the Veteran had pain in his lower back, right hip, and left knee. The physician wrote that his gait was abnormal because he favored his right foot because of pain. The Veteran denied having back pain during an August 2010 visit. A July 2011 treatment record documented severe back pain. It noted that mild back pain began three days prior. His back mobility was limited by the pain and his pain was rated as eight out of 10. He had full range of motion in his back. X-rays performed in July 2011 of the back were normal but did not suggest the presence of muscle spasm consistent with the Veteran’s back pain. Mild back spasm was noted. A November 2011 treatment record noted that the Veteran’s back pain was mild and he used medication as needed to treat the pain. It also noted that the Veteran had a history of back pain, left of midline, mid back with muscle spasm. A September 2014 medical treatment note documented full range of motion in the Veteran’s back. In medical treatment records ranging from October 2014 to December 2015, the Veteran denied back pain or numbness/tingling. A June 2018 treatment record noted that the Veteran had had lower back pain for four days. He stated he was very stiff when he got up and had difficulty getting from a sitting to standing position. He also found it difficult to ambulate without limping. He took medication for spasms of low back pain with radiculopathy. In its June 2019 decision, the Board remanded the Veteran’s back disability claim for a new VA examination that was compliant with Correia and Sharp. On VA examination in January 2020, the Veteran reported that he experienced pain, stiffness, and decreased range of motion. He reported flare-ups of the back described as experiencing more pain with use. Functional loss or functional impairment of the back was described as being less able to bend, turn, or twist. Range of motion was forward flexion to 90 degrees; extension to 30 degrees; left and right lateral flexions to 30 degrees; and left and right lateral rotations to 30 degrees. The decrease in range of motion was due to pain. Pain significantly limited functional ability with repeated use over a period of time and with flare-ups. The examiner was unable to describe in terms of range of motion explaining that there was no further range of motion loss anticipated during these scenarios, only increased symptoms and thus no range of motion estimate was warranted. There was no evidence of muscle spasm or guarding severe enough to result in an abnormal gait, or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. The Veteran did not have Intervertebral Disc Syndrome (IVDS). He occasionally used a brace and cane for stabilization and gait safety. The examiner noted the nature and severity of all manifestations of the Veteran’s low back disability included persistent strain and pain and a lesser ability to tolerate weight bearing activities such as standing, walking, running, climbing, kneeling, squatting, or rising. In the October 2020 appellate brief, the Veteran’s representative argued that the January 2020 examination for the low back did not provide functional loss assessments in terms of range of motion and did not appear to assess all the available evidence to do so in accordance with Correia and Sharp. The Board, however, finds that this contention is incorrect. During his January 2020 VA examination, the examiner recorded that there was objective evidence of pain when the back was used in non-weight bearing under the Correia criteria section of the examination. It was noted that passive range of motion was the same as active range of motion. When asked to specify the plane(s) of range of motion involved if objective evidence of pain was present on passive range of motion, the examiner marked that it was the same as active range of motion. Therefore, the Board finds that the January 2020 VA examination complied with the requirements articulated in Correia. With regards to compliance with Sharp, the January 2020 VA examiner noted that pain significantly limited functional ability with repeated use over a period of time. The examiner found that there was no further range of motion loss anticipated during these scenarios; therefore, there was no additional loss to describe in terms of range of motion. Therefore, the Board finds that the January 2020 VA examination complied with the requirements articulated in Sharp. Thus, while the Board acknowledges the contentions in the appellate brief regarding compliance with Correia and Sharp in the January 2020 VA examination, the Board finds that the examiner fulfilled the requirements of both of these cases as discussed above. The VA examiner properly and adequately filled out the Correia section provided in the VA examination. She also wrote information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veteran as a flare-up was not observable at the time of examination, thereby fulfilling the requirements articulated in Sharp. The Board finds that a rating greater than 10 percent is not warranted. The Veteran’s complaints of pain are acknowledged. The record, however, does not contain findings or other adequate pathology sufficient to support a higher rating based on functional impairment due to pain on motion or other factors. The rating criteria apply with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71A, General Rating Formula for Diseases and Injuries of the Spine. During the period on appeal, the Veteran’s forward flexion was not greater than 30 degrees but not greater than 60 degrees. Rather, forward flexion was consistently shown to be greater than 60 degrees. Additionally, the combined range of motion of the thoracolumbar spine was consistently greater than 120 degrees. Furthermore, during the period on appeal, the Veteran did not experience muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Board acknowledges that the evidence of record shows that the Veteran has muscle spasms in his back as noted above. However, these muscle spasms are not severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. While the Veteran does have an abnormal gait, this is due to pain that he experiences in other extremities. The November 2009 VA examiner explained the cause of the Veteran’s altered gait when he wrote, “It should be noted that so long as he has right foot pain and walks with a right antalgic gait he will have low back pain on that same side.” A June 2010 medical treatment record similarly noted that the Veteran’s gait was abnormal because he favored his right foot due to the pain. Therefore, while the Veteran experiences muscle spasms in his back and has an abnormal gait, these two symptoms are separate from one another as the muscle spasms are not causing the abnormal gait. Additionally, the Veteran did not experience guarding as evidenced by the record. He also did not have an abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Therefore, the Board finds that during the period on appeal, the Veteran did not experience muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis as articulated by a higher 20 percent disability rating. Thus, the Veteran is not entitled to a higher rating as he did not experience any of the symptoms articulated by the 20 percent disabling rating criteria. Finally, consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. The Veteran, however, does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. In his January 2020 VA examination, the examiner noted that the Veteran did not have IVDS. Therefore, as the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating, the Board finds that a separate rating for IVDS is not warranted. 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. Thus, an initial evaluation in excess of 10 percent for the Veteran’s service-connected chronic, persistent low back strain is denied. 2. Entitlement to an initial evaluation for multiple lipomas on the chest and abdomen in excess of 30 percent disabling The Veteran contends that the currently assigned 30 percent rating does not adequately reflect the severity of his multiple lipomas on the chest and abdomen. The period on appeal begins on April 28, 2009, the effective date assigned for the Veteran’s award of service connection for multiple lipomas on the chest and abdomen. The Veteran’s multiple lipomas on the chest and abdomen are rated under Diagnostic Codes 7820-7806, for dermatitis or eczema, which is rated pursuant to the general rating formula for skin. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, under Diagnostic Code 7806, a 30 percent rating is assigned for 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly during the past 12-month period. A 60 percent rating is assigned for more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near- constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a Veteran’s skin condition; and (2) whether the given treatment is “like” a corticosteroid or other immunosuppressive drug.” Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. Effective August 13, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a). Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a 30 percent rating is assigned for at least one of the following: characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is assigned for at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period. Regarding the meaning of “systemic therapy” prior to the new definition of the term in the revised criteria, the Court in Johnson v. McDonald, 27 Vet. App. 497, 505 (2016) held that use of a topical steroid constituted “systemic therapy” within the meaning of Diagnostic Code 7806. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the United States Court of Appeals for the Federal Circuit (Federal Circuit) reversed this decision and determined that “constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs” under Diagnostic Code 7806 is generally not inclusive of topical corticosteroids. The Federal Circuit found that “systemic therapy means ‘treatment pertaining to or affecting the body as a whole,’ whereas topical therapy means ‘treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied.’” Thus, according to the Federal Circuit, all applications of topical corticosteroids do not constitute systemic therapy. The Federal Circuit also held that a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. Regarding the effective date of the new criteria, VA indicated in the Supplementary Information to the Final Rule that its “intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied.” The Veteran’s claim in this case was pending prior to the August 13, 2018 effective date of the new criteria. Here, the evidence of record demonstrates that the predominant disability is multiple lipomas on the chest and abdomen. In a November 2010 lay statement the Veteran wrote, “I am still having ongoing problems with the lipomas. More surgery is scheduled for June 8, 2010. After the rating was scheduled, I had another surgery…on the same issue.” In his September 2018 hearing, the Veteran stated that he had many scars on his body because of his lipoma surgeries. The Veteran underwent a VA examination in November 2009 which showed multiple scars on the abdomen. It was noted that each one was around one and a half inches. There were around seven in number about one and a half inches each spread on the mid-chest and sides of the abdomen bilaterally. There was deep-seated soft tissue swelling on the left breast and left upper arms on both flanks. There was a 10 by 10 centimeter lipomatous fatty deep growth felt on examination. There were also multiple similar swellings felt and growths felt deep-seated under the skin subcutaneously and the abdomen and arms and thighs. There was a 10 by 10 centimeter diffuse lipoma on the right thigh, two on the left arm, and three on the right arm. The assessment provided was multiple lipomatosis. The Veteran had had multiple lipomas excised, around eight. There were multiple scars seen on the abdomen and chest and multiple lipomas felt on the body. These scars constituted the arms, chest, back, and legs, which is around 60 percent of the body surface area, zero percent of the exposed body surface area. The Board acknowledges that at the time of the Veteran’s November 2009 VA examination, the scars on his arms, chest, back, and legs constituted around 60 percent of the body surface area. However, this does not mean that he had characteristic lesions involving more than 40 percent of the entire body at one time. These scars are better considered under the diagnostic codes for scars, addressed in the next section. A July 2010 medical treatment record noted that the Veteran was doing well after a status post excision of a left breast lipoma. He had two small, NT lipomas on the back. It was also noted that his abdomen had multiple lipomas present. He had multiple scars from past lipoma excisions with some keloid formation. He also had one small lipoma noted near the back midline left lateral of the lower T-spine. Medical treatment records document that the Veteran was prescribed several topical creams for treatment purposes. Here, the Board finds that the Veteran’s use of the topical cream is not considered systemic therapy because it was not administered on a large enough scale such that it affected the body as a whole as articulated by Johnson v. McDonald, 27 Vet. App. 497, 505 (2016). An August 2012 medical treatment record noted that the Veteran had three or four small lipomas removed. In November 2012, it was noted that the Veteran had a number of lipomas on his trunk, some that were previously excised, and one under his left breast. The primary care note also recorded that he had prior scars from lipomas. The Veteran underwent excision of bilateral flank lipomas in December 2012 and December 2013. He also had excision of left chest wall lipomas. A June 2014 medical treatment record noted that the Veteran had lipoma and scar excision of the flank and arm. He also had an excision of two right hip/right arm lipomas. Specimen measurements were provided. A July 2014 medical treatment record noted there were no new or changed skin lesions. He had a healing wound on the right abdominal wall after a recent lipoma surgery. In September 2016, the Veteran had a resection of lipomas from both sides of his back. He was treated for six months with medication. In its June 2019 decision, the Board remanded the Veteran’s multiple lipomas claim for a new VA examination to assess the current severity of the condition. The Veteran underwent a VA examination in January 2020 for skin diseases. The VA examiner provided that the Veteran had multiple lipomas on the chest and abdomen with an onset date of 2006. The details provided were insidious onset of lipomas, surgery 2007 for removal. The course of the condition was noted as resolved. The examiner recorded that the Veteran had not been treated with medication in the past 12 months for any skin condition. It was noted that the Veteran had not had any treatments or procedures other than systemic or topical medications in the past 12 months for any skin condition. On physical exam, the lipomas total body area was less than five percent. There was no exposed area. Measurements of the Veteran’s scars from lipoma excisions were provided. The Board acknowledges that the VA examiner stated that the course of the condition was noted as resolved, which may be seen as inconsistent with the fact that lipomas were noted in a medical treatment record in February 2020, following the January 2020 examination. This discrepancy appears to reflect the state of active lipomas on the date of the examination, which had obviously changed by February 2020. The Board does not find this to be a problematic inconsistency, but rather a reflection of the fluctuating nature of the Veteran’s disability. A February 2020 medical treatment record noted lipomas were active to the abdomen. Removal of a lipoma on the back was noted. The Veteran presented with swelling and pain to his left calf which occurred five days status post a resection of lipomas from both sides of his back in February 2020. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 30 percent under the pre-August 13, 2018 regulations because the Veteran’s multiple lipomas on the chest and abdomen do not more nearly approximate more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. The Board also finds that the preponderance of the evidence is against the assignment of a rating in excess of 30 percent under the August 13, 2018 regulations because the Veteran’s multiple lipomas on the chest and abdomen does not more nearly approximate characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs over the past 12-month period. Here, since the Veteran has not been treated with constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs over the past 12-month period, the change in regulation language with regards to systemic therapy does not impact the outcome of the Veteran’s case. Over the past 12-month period, the Veteran has not been treated with constant or near-constant systemic therapy as articulated by both the old language of the diagnostic code and the current language of the diagnostic code. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include that he is still having ongoing problems with the lipomas, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the medical treatment records do not show, that the Veteran’s disability more nearly approximates the criteria in the next higher rating. In this case, the Veteran’s multiple lipomas do not more nearly approximate more than 40 percent of the entire body or more than 40 percent of exposed areas affected. He also did not require constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. The Board has considered whether any other Diagnostic Codes related to disabilities of the skin would provide for a higher disability evaluation. However, the evidence does not reflect that he would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.118. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim of a rating in excess of 30 percent for multiple lipomas on the chest and abdomen. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to an initial evaluation for all scars due to multiple lipomas rated as 10 percent disabling Considering all of the areas scarred from multiple zones of the body and resolving reasonable doubt in the Veteran’s favor, the Board finds that all of the Veteran’s lipoma scars taken together cover a sufficient area to warrant a 10 percent rating under Diagnostic Code 7802 from April 28, 2009. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the Agency of Original Jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma, 341 F.3d 1327. However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, Diagnostic Code 7802, was for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that were superficial and nonlinear. Under these criteria, a scar with an area or areas of 144 square inches (929 sq. cm.) or greater warrants a 10 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7802 instructed that a superficial scar was one not associated with underlying soft tissue damage. Id. Since August 13, 2018, Diagnostic Code 7802 is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Note 2 to Diagnostic Code 7802, in relevant part, instructs, “if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code.” Diagnostic Code 7802 was otherwise unchanged by the August 13, 2018 amendments. As noted above, the Veteran underwent a VA examination in November 2009 which showed multiple scars on the abdomen. It was noted that each one was around one and a half inches. There were around seven in number about one and a half inches each spread on the mid-chest and sides of the abdomen bilaterally. There were multiple scars seen on the abdomen and chest. These scars constituted the arms, chest, back, and legs, which was around 60 percent of the body surface area, zero percent of the exposed body surface area. The Veteran had a VA examination in January 2020 for scars/disfigurement. The examiner provided a diagnosis of arms, chest, and abdomen scars. There were no scars or disfigurement of the head, face or neck. The date of onset of the scars was 2007. The Veteran had surgical scars from lipoma removals. It was noted that no scars of the trunk or extremities were painful. There were no scars of the trunk or extremities that were unstable, with frequent loss of covering of skin over the scar. There were no scars of the trunk or extremities due to burns. The affected area was noted as the right upper extremity. Two scars were noted on the right arm. Both scars were 5 centimeters by .3 centimeters. The anterior trunk was also affected. There were two scars noted. The first was 21 centimeters by half a centimeter. The second was measured as 6.5 centimeters by half a centimeter. The approximate total area of the right upper extremity was three centimeters squared. The approximate total area of the anterior trunk was 13.75 centimeters squared. The Board notes that there is an inconsistency with the January 2020 examiner’s finding that there were no scars on the Veteran’s legs. As discussed above, the Veteran has scars on his legs as noted in the November 2009 VA examination and multiple other medical treatment records cited above. Additionally, as discussed above, if 60 percent of the Veteran’s body was covered in scars as noted in his November 2009 VA examination, this is inconsistent with the 2020 examiner’s finding that approximately 15 square centimeters on the Veteran’s body were covered with scars. It is unclear to the Board how many scars the Veteran has based on this conflicting evidence, however, after resolving reasonable doubt in the Veteran’s favor, based on the number of scars reported and accumulated over this lengthy appeal period, the Board finds that he is entitled to a 10 percent rating under Diagnostic Code 7802 for all scars due to multiple lipomas. As the Veteran is in receipt of the highest schedular rating under Diagnostic Code 7802, there is no basis to award a higher evaluation. The Board has also considered the other Diagnostic Codes pertaining to scars. However, as laid out above, the Veteran’s scars due to his multiple lipomas are not of the head, face, or neck; are not deep and non-linear; are not unstable or painful; and are not associated with underlying soft tissue damage. Therefore, Diagnostic Codes 7800, 7801, and 7804, both prior to and from August 13, 2018, are inapplicable. Finally, the evidence of record shows there are no other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805. In conclusion, after resolving reasonable doubt in the Veteran’s favor, the Board grants a 10 percent rating under Diagnostic Code 7802 from April 28, 2009. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. “Service connection” basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for a cardiac disability The Veteran claims entitlement to service connection for a cardiac disability. Following a thorough review of the Veteran’s medical records, the Board finds that he is not entitled to an award of service connection. As an initial matter, the Board finds that the Veteran has satisfied the first element of service connection, a current disability. A review of the Veteran’s January 2020 VA examination shows the Veteran has valvular disease that was diagnosed in 2020. See VA Examination dated January 2020. Therefore, the Board finds that the Veteran has satisfied the first prong of service connection, the existence of a current disability. The Veteran contends that his cardiac condition began while he was in service in 2005. The Veteran’s service treatment records (STRs) note that he complained of chest pain and squeezing in his chest. His pain was rated as an eight out of 10 that felt better when he applied pressure with his hand to his chest. He had felt like his heart was beating very fast during these episodes that lasted 20 to 30 minutes and resolved and reoccurred. He also felt shortness of breath during these episodes and would sweat all over. See STR dated February 2009. In February 2009, the Veteran had a nonspecific abnormal electrocardiogram (EKG) which was evaluated by cardiology with no further recommendation. His STRs also show a March 2009 stress test that yielded negative results. Therefore, the Board finds that the Veteran has satisfied the second prong of service connection for a cardiac disability: evidence of an in-service disease or injury. The remaining question is whether a causal relationship exists between the Veteran’s current valvular disease and the episodes of chest pain during active duty service. The Veteran was afforded a VA examination in October 2009, in which the examiner noted that the Veteran reported occasional palpitations and lightheadedness. He found the Veteran had a history of chest pain of undetermined etiology. He did not, however, provide an opinion regarding whether the Veteran had a current cardiac disability, or whether this disability was related to his service, to include the chest pain he experienced while in service. A July 2010 medical treatment record noted that the Veteran had no new palpitations since his in-service incident. A September 2010 medical treatment record documents that a routine ECG was found to have non-specific T wave inversions and a tall R wave in V1 concerning for right ventricular hypertrophy. It was noted that the Veteran was asymptomatic without cardiac risk factors. His ECG on September 2010 revealed grossly structural normal heart. In a November 2010 lay statement, the Veteran reported, “I still have occasional heart pain and racing heartbeat.” Medical treatment records ranging from July 2010 to February 2020 show that the Veteran denied chest pain and palpitations and his heart was noted as having regular rate and rhythm. In its June 2019 decision, the Board remanded the Veteran’s cardiac disability claim in order to afford the Veteran the opportunity for a new VA examination that contained a nexus opinion. Thereafter, in a January 2020 VA examination, the examiner concluded that, It is less likely than not that the valvular disease was incurred during his active service or is caused by his active service, to include his in-service reports of chest pain. The valvular disease is so mild it is unlikely to have been present at time of service nor explain the chest pain during service which was attributed to a nonspecific EKG abnormality which had been evaluated by cardiology with no further recommendation. In an October 2020 appellate brief, the Veteran’s representative argued that, “The examination for the chest did not address the notations of a history of chest pain from the November 2009 examination, as mentioned by the Board.” However, the January 2020 VA examiner did address the Veteran’s in-service reports of chest pain. The examiner noted that the pain the Veteran experienced while in service was attributed to a nonspecific EKG abnormality. The 2020 VA examiner’s opinion provided clear conclusions with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the Board finds the opinion of the January 2020 VA examiner is adequate and probative. The Board remand requested only that the examiner address the in-service reports of chest pain. It did not require the examiner to explicitly discuss the November 2009 examination report. As the January 2020 examiner did discuss the in-service reports of chest pain, the examination substantially complies with the Board remand. Moreover, this opinion is consistent with the contemporaneous medical evidence of record. A thorough review of the Veteran’s medical records does not show any treatment for, or diagnosis of, a cardiac disability until many years following the Veteran’s separation from active duty service. The Board finds that the question of whether a nexus exists between the Veteran’s chest pains in service and his current valvular disease is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is a medically complex issue requiring specialized medical education/knowledge. See 38 C.F.R. § 3.159(a)(1) (setting forth 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). Because the Veteran does not have specialized medical training, experience, or knowledge, his opinion, no matter how sincere, is not competent nexus evidence. Therefore, the Board has reviewed all medical and lay evidence, but finds there is no probative evidence of record which establishes a causal relationship between the Veteran’s cardiac disability and an in-service event. 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 for service connection. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bristor 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.