Citation Nr: 21013032
Decision Date: 03/08/21	Archive Date: 03/08/21

DOCKET NO. 19-27 516
DATE: March 8, 2021

ORDER

Entitlement to service connection for bilateral hearing loss is denied. 

Entitlement to service connection for tinnitus is granted.

Entitlement to service connection for gynecomastia is granted.  

Entitlement to service connection for hypercholesterolemia is denied. 

Entitlement to service connection for hemorrhoids is granted. 

Entitlement to service connection for right ankle disability is denied. 

Entitlement to service connection for nerve sheath tumor of the left leg is denied.

Entitlement to service connection for hypertension is denied.  

Entitlement to an effective date earlier than October 5, 2017 for service connection for painful surgical scar on the right breast is denied. 

Entitlement to an effective date earlier than October 5, 2017 for service connection for linear surgical scar on the right breast is denied. 

Entitlement to an effective date earlier than November 17, 2016 for service connection for irritable bowel syndrome (IBS), Gastroesophageal Reflux Disease (GERD), and antrum gastritis (hereafter “GI disabilities”) is denied.

Entitlement to an effective date earlier than November 17, 2016 for service connection for left wrist fracture is denied. 

An effective date of September 29, 2016 for service connection for left wrist nerve paralysis/nerve damage is granted.

Entitlement to an initial rating higher than 10 percent for painful surgical scar on the right breast is denied. 

Entitlement to an initial compensable rating for linear surgical scar on the right breast is denied. 

Entitlement to an initial rating higher than 10 percent for left wrist fracture is denied. 

For the appeal period prior to August 9, 2019, entitlement to an initial rating higher than 60 percent for left wrist nerve paralysis/nerve damage is denied. 

An initial rating of 60 percent for GI disabilities, including IBS, GERD, and antrum gastritis, is granted for the entire appeal period. [The applicable diagnostic code has been changed to 7346.]

Entitlement to a compensable evaluation for status post right hand boxer fracture is denied. 

For the appeal period prior to November 6, 2017, an initial rating of 60 percent for herpes is granted.  

Entitlement to service connection for compressed ulnar nerve of the left elbow is dismissed.

REMANDED

Entitlement to service connection for head injury is remanded.

Entitlement to service connection for respiratory condition, to include allergic rhinitis is remanded.

Entitlement to service connection for sleep apnea, to include as secondary to a respiratory condition and/or GI disabilities, is remanded. 

Entitlement to service connection for right shoulder disability is remanded. 

Entitlement to service connection for left shoulder disability is remanded. 

Entitlement to service connection for scar tissue on the left rotator cuff, to include as secondary to left shoulder disability is remanded. 

Entitlement to service connection for migraine is remanded.

Entitlement to service connection for carpal tunnel syndrome of the left upper extremity is remanded. 

Entitlement to service connection for carpal tunnel syndrome of the right upper extremity is remanded. 

Entitlement to service connection for right eye disability, to include conjunctivitis with marginal corneal ulcer, eye cyst or benign growth, vision, and hemorrhage, is remanded.  

Entitlement to service connection for skin condition, to include cyst and/or neoplasm, is remanded. 

Entitlement to an initial compensable rating for scar on the left wrist is remanded.

For the appeal period after August 9, 2019, entitlement to an initial rating higher than 60 percent for left wrist nerve paralysis/nerve damage is remanded. 

Entitlement to an effective date earlier than August 13, 2018 for service connection for left wrist scar is remanded. 

Entitlement to an effective date earlier than November 27, 2016 for service connection for herpes is remanded. 

Entitlement to service connection for scars to the head, face, or neck as secondary to migraine is remanded. 

Entitlement to service connection for scars of the extremities and trunk is remanded.  

FINDINGS OF FACTS

1.  The Veteran does not have a current bilateral hearing loss for VA purposes.  

2. Tinnitus had its onset in service and symptoms have been continuous to the present.

3. The Veteran’s gynecomastia has its onset in service. 

4. Hypercholesterolemia is a laboratory finding and not a disability for which VA disability benefits may be awarded.  

5. The Veteran’s hemorrhoid disability had its onset in active service. 

6. The Veteran does not have a current right ankle disability. 

7. The Veteran does not have a current disability of nerve sheath tumor of the leg. 

8. The Veteran does not have a current disability of hypertension.  

9. The Veteran did not file a service connection claim for scars on the right breast earlier than October 5, 2017. 

10. The Veteran did not file a service connection claim for GI disabilities earlier than November 17, 2016. 

11. The Veteran did not file a service connection claim for left wrist fracture prior to November 17, 2016.

12. The Veteran filed a service connection claim for ulnar nerve damage on September 29, 2016. This claim was intended to include left ulnar nerve compression and left wrist nerve paralysis/nerve damage.

13. The Veteran has one linear, painful scar on the right breast with an area of less than 144 square inches. It is not unstable or associated with underlying soft tissue damage. Competent evidence shows no other disabling effects.

14. The Veteran is currently receiving the maximum schedular rating for limitation of motion of the left wrist absent ankylosis.

15. For the appeal period prior to August 9, 2019, the Veteran’s left wrist nerve paralysis/nerve damage is not manifested by complete paralysis of all radicular groups.

16. The Veteran’s GI disabilities are manifested by pain, vomiting and melena with moderate anemia. 

17. The Veteran is currently receiving the maximum schedular rating for limitation of motion of the ring or little finger. The evidence does not show ring or little finger ankylosis, amputation, or the functional equivalent thereof during the appeal period.

18. Resolving reasonable doubt in the Veteran’s favor, his herpes required near-constant use of systemic therapy prior to November 6, 2017.

19. Service connection for compressed ulnar nerve, left elbow was implicitly granted in the May 2018 grant of service connection for left wrist nerve paralysis/nerve damage. As the benefit sought has been granted in full, there remain no allegations of errors of fact or law for appellate consideration.

CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral hearing loss are not met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 

2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

3. The criteria for service connection for gynecomastia are met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. The criteria for service connection for hypercholesterolemia are not met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

5. The criteria for service connection for hemorrhoids are met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

6. The criteria for service connection for right ankle disability are not met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

7. The criteria for service connection for nerve sheath tumor of the left leg are not met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

8. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303.

9. The criteria for entitlement to an effective date prior to October 5, 2017, for the grant of service connection for painful surgical scar on the right breast have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

10. The criteria for entitlement to an effective date prior to October 5, 2017, for the grant of service connection for linear surgical scar on the right breast have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

11. The criteria for entitlement to an  effective date prior to November 17, 2016, for the grant of service connection for GI disabilities have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

12. The criteria for entitlement to an effective date prior to November 17, 2016, for the grant of service connection for left wrist fracture have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

13. The criteria for an effective date of September 29, 2016 for the grant of service connection for left wrist nerve paralysis/nerve damage are met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

14. The criteria for a disability rating in excess of 10 percent for painful scar on the right breast have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7804.

15. The criteria for a compensable disability rating for linear scar on the right breast have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7805.

16. The criteria for an initial rating greater than 10 percent for left wrist fracture are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5215. 

17. For the appeal period prior to August 9, 2019, the criteria for an initial rating greater than 60 percent for left wrist nerve paralysis/nerve damage are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 8513. 

18. The criteria for an initial 60 percent disability for GI disabilities, including IBS, GERD, and antrum gastritis, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, DC 7319, 7399-7346.

19. The criteria for a compensable rating for status post right hand boxer fracture are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5299-5230.

20. The criteria for an initial rating of 60 percent for herpes have been met prior to November 6, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7815.

21. The criteria for dismissal of the issue of entitlement to service connection for compressed ulnar nerve of the left elbow are met. 38 U.S.C. § 7105.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from April 1997 to August 2005, and from March 2008 to June 2008. He also has service in the Reserves. 

The claims regarding hypercholesterolemia, hemorrhoids, right ankle disability, nerve sheath tumor on left leg, hypertension, right hand boxer fracture, herpes, carpal tunnel syndrome, left shoulder disability, respiratory condition to include allergic rhinitis, scar tissue left rotator cuff, and sleep apnea come to the Board of Veterans’ Appeals (Board) from a May 2017 rating decision. The Veteran filed Notices of Disagreement (NODs) regarding these issues in July 2017 and May 2018, which resulted in an April 2020 Statement of the Case (SOC). The Veteran filed a substantive appeal in June 2020. In his substantive appeal, the Veteran indicated that he wishes to appeal all the claims addressed in the April 2020 SOC. 

The claims regarding bilateral hearing loss; tinnitus; gynecomastia; head injury; surgical scars on the right breast; left wrist fracture; migraine; right shoulder disability; right eye disability; and scars to the head, face, or neck as secondary to migraine were appealed to the Board from a December 2017 rating decision.

The claims for increased initial rating and earlier effective date for left wrist nerve paralysis/nerve damage and service connection for scars on the extremity and trunk come from a March 2018 rating decision. The Veteran filed an NOD regarding these claims in November 2018, which resulted in an August 2019 SOC. In September 2019, the Veteran filed a substantive appeal.  

The claims for initial compensable rating and earlier effective date for left wrist scar were appealed from the December 2018 rating decision that granted entitlement to service connection. The Veteran filed NOD in December 2019. The SOC was issued in February 2020 and the substantive appeal was filed in March 2020. 

The claim for increased rating for GI disabilities stems from multiple claims. Service connection was initially granted for GERD in a May 2017 rating decision. That rating decision also denied service connection for IBS. In a December 2017 rating decision, the agency of original jurisdiction (AOJ) granted service connection for antrum gastritis (claimed as gastritis, gastroenteritis, and esophageal condition to include rectal bleeding) assigning a noncompensable rating and proposed reduction of the 30 percent rating assigned to GERD. In January 2018, the Veteran filed an NOD with the noncompensable rating assigned for antrum gastritis. The AOJ ultimately did not reduce the rating, and in an April 2018 rating decision, continued a 30 percent rating as encompassing all GI disabilities: GERD, antrum gastritis, and now including the previously nonservice-connected IBS. The Veteran filed an NOD in May 2018 disagreeing with the May 2017 rating decision’s assigned initial rating and effective date for GERD, and denial of service connection for IBS. However, the April 2018 rating decision implicitly granted service connection for IBS by including it in the GI disabilities encompassed by the 30 percent rating. Interpreting this in the light most favorable to the Veteran, the Board characterizes the appeals as entitlement to an initial rating in excess of 30 percent for the GI disabilities, and entitlement to an effective date earlier than November 17, 2016 for service connection of the GI disabilities. The AOJ issued a SOC in August 2019, and the Veteran filed a substantive appeal in September 2019. 

The claim for a skin condition also stems from multiple claims. The AOJ adjudicated the claim for service connection for cyst or benign growth and skin condition by way of a May 2017 rating decision. The claim for service connection for benign neoplasm secondary to scars on the extremities and trunk was appealed from a March 2018 rating decision. However, the Board has taken an expansive view of the Veteran’s claims and recharacterized the issue as shown above to make clear the benefit sought is entitlement to service connection for skin disability regardless of the diagnosis. See Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009); see also Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007).  

Similarly, the service connection claims for respiratory condition and allergic rhinitis were adjudicated as separate claims in the May 2017 rating decision. However, the Board has combined these claims as allergic rhinitis is a type of respiratory condition.

As explained in detail below, the Board has denied the claims for service connection for nerve sheath tumor on left leg and hypertension because the evidence weighs against finding of current disabilities. The Board acknowledges that VA examination was not provided to address these claims. VA’s duty to provide examination is not limitless and is only triggered when there is competent evidence of a current disability or persistent or recurrent symptoms of a disability, evidence of an in-service injury or disease, and some indication of a link between a veteran’s claimed disability and military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, as explained in detail below, after sympathetic review of the record, the Board finds that there is not competent evidence of a current nerve sheath tumor on left leg or hypertension. Under such circumstances, the low threshold set forth in McLendon is not satisfied and VA is not required to provide an exam or obtain a nexus opinion for these claimed disabilities. Id. 

Finally, an April 2020 rating decision found clear and unmistakable error in the initial noncompensable evaluation assigned for the Veteran’s service-connected herpes and changed the initial rating assigned to 30 percent from November 27, 2016 to November 6, 2017, and 60 percent thereafter. Because 60 percent is the maximum rating possible under DC 7815, the full benefit sought in the initial rating for herpes appeal has been granted effective November 6, 2017, and that stage is not before the Board. However, the period prior to November 6, 2017 remains on appeal as the maximum possible rating was not assigned. AB v. Brown, 6 Vet. App. 35 (1993).

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

In the alternative, service connection may be established on a secondary basis. Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

The presence of a current disability is the cornerstone of any service connection claim. Service connection is not warranted when there is no current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Current means near the time a claim is filed or at any time during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013); McClain v. Nicholson, 21 Vet. App. 319 (2007). Disability “refers to the functional impairment of earning capacity.” See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that pain can constitute a current disability, even without an underlying diagnosis, if it causes sufficient functional impairment). 

1. Entitlement to service connection for bilateral hearing loss is denied. 

The Veteran contends that service connection for bilateral hearing loss is warranted. 

For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 

In this case, the competent evidence of record does not demonstrate a current diagnosis of bilateral hearing loss for VA purposes. The October 2017 VA examination does not reflect auditory threshold of 40 decibels or greater in one frequency; or 26 decibels or greater in at least three frequencies in both ears. Furthermore, the Veteran had word recognition score of 100 in both ears. These findings are not consistent with hearing loss for VA purposes.

The record has private treatment records from July 2010, February 2012, and April 2013 that reflect that the Veteran complained of hearing loss and he had medical history of conductive hearing loss. However, these records do not reflect that the Veteran had hearing loss during the appeal period as they pre-date the October 2017 claim by many years. Romanowsky, 26 Vet. App. 289.

During the October 2017 VA examination, the Veteran reported difficulty hearing, where there is background noise. He maintains that his hearing loss is related to his exposure to noise while working on the flight line.   

The Board has considered the Veteran’s lay statement that he has hearing loss. However, the issue of whether there is hearing loss for VA purpose is medically complex and requires specialized knowledge and experience, as well as specialized testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). There is no indication that the Veteran has the medical training to self-test his hearing for puretone thresholds or provide Maryland CNC speech recognition results that would reveal hearing loss for VA purposes under 38 C.F.R. § 3.385. Thus, the Veteran’s lay evidence is not competent evidence of a current disability, no matter how sincere.

Absent evidence showing a current hearing loss for VA purposes, service connection for bilateral hearing loss is not warranted and the Board need not discuss the other two elements of a service connection claim. Brammer, 3 Vet. App. at 225. The evidence weighs against a finding of a hearing loss disability as defined by 38 C.F.R. § 3.385 at any time in the appellate period. In making this determination, the Board has considered the provisions of 38 U.S.C. § 5107 (b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran’s claim. The claim is denied.

2. Entitlement to service connection for tinnitus is granted.

The Veteran contends that service connection for tinnitus is warranted. The Board acknowledges that in a July 2020 submission, the Veteran asked that this issue be returned to the AOJ for consideration of evidence submitted after the SOC. However, as this is a full grant of the benefit sought, the Board finds there is no prejudice in adjudicating the issue.

Tinnitus is an organic disease of the nervous system and therefore a chronic disease. Fountain v. McDonald, 27 Vet. App. 258, 272 (2015).

Tinnitus is “a noise in the ear, such as ringing, buzzing, roaring, or clicking.” See Dorland’s Illustrated Medical Dictionary 1956 (31st ed. 2007). Because of its inherently subjective nature, a layman such as the Veteran is considered competent to report the observable manifestations of tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002) (holding that tinnitus is subjective and the kind of condition lay testimony is competent to describe). Therefore, the Veteran’s statements are enough to establish that he has a current disability of tinnitus. See e.g. October 2017 VA examination.

The Veteran states that the ringing in his ear started in 2004, while he was in service. See October 2017 VA examination. The Veteran’s statements are probative in establishing that the ringing started in service. Therefore, the second element of a service connection claim is satisfied.

The record contains a negative nexus opinion from the October 2017 VA examiner who opined that the Veteran’s tinnitus was less likely than not related to service. The examiner’s rationale was solely based on the lack of threshold permanent shifts in hearing. The Board does not assign any probative value to this inadequate opinion as it completely discounts the lay evidence of record, i.e., the Veteran’s report of experiencing tinnitus when in service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (finding that examination was inadequate where the examiner did not comment on the appellant’s report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion).

As noted above, because it is a chronic disease, service connection is available for tinnitus based on a continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013); 38 C.F.R. § 3.307, 3.309. During the October 2017 examination, the Veteran reported tinnitus that has been present since service. Reviewing the evidence in light most favorable to the Veteran, his lay statements establish that he experienced chronic symptoms of tinnitus in service and continuous symptoms of tinnitus after service separation; therefore, the criteria for the presumptive provision of 38 C.F.R. § 3.303 (b) have been met. The claim is granted.

3. Entitlement to service connection for gynecomastia is granted.  

The Veteran contends that service connection for gynecomastia is warranted.  

The Board concludes that the Veteran has a current disability that began during active service.  38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

The Veteran underwent VA examination in October 2017, where the examiner noted that the Veteran was diagnosed with gynecomastia in 1997, while he was in service. The Veteran’s condition is currently in watchful status. The examiner’s finding is consistent with the Veteran’s service treatment records (STR) that shows that the Veteran had a mass removed with a diagnosis of gynecomastia in November 1997.  Accordingly, the Board finds that service connection for gynecomastia is warranted.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.

4. Entitlement to service connection for hypercholesterolemia is denied. 

The Veteran maintains that he has had hypercholesterolemia throughout his active service. See July 2017 Correspondence.  

Hypercholesterolemia is defined as “excessive cholesterol in the blood.” Dorland’s Illustrated Medical Dictionary 887 (32nd ed. 2012). VA awards service connection for disabilities. See, e.g., 38 U.S.C. § 1110. Hypercholesterolemia is a laboratory finding and it is not a disability for VA compensation purposes. See 61 Fed. Reg. 20440 (May 7, 1996) (stating, regarding hyperlipidemia, elevated triglycerides, and elevated cholesterol, that such “are actually laboratory test results, and are not, in and of themselves, disabilities”). 

As previously noted, the threshold requirement for entitlement to service connection to be granted is competent evidence of the current existence of the claimed disability. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer, 3 Vet. App. 223. In this case, competent evidence does not identify a disability for VA compensation purposes and without this the claim cannot succeed.

Therefore, the preponderance of the evidence is against entitlement to service connection for hypercholesterolemia; thus, there is no doubt to be resolved. Service connection for hypercholesterolemia is denied.

5. Entitlement to service connection for hemorrhoids is granted. 

The Veteran asserts that service connection for hemorrhoids is warranted. 

The Board concludes that the Veteran has a current disability that began during active service.  38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a).

An April 2017 VA examination show that the Veteran has a current diagnosis of hemorrhoids. Review of the Veteran’s STR shows that the Veteran reported seeing blood in his stool in June and August 2001. The April 2017 VA examiner concluded that the blood in the Veteran’s stool is at least as likely as not caused by hemorrhoids. Therefore, it is at least as likely as not that the Veteran’s hemorrhoid disability had its onset in service.  Service connection for hemorrhoids is granted.

6. Entitlement to service connection for right ankle disability is denied. 

7. Entitlement to service connection for nerve sheath tumor of the left leg is denied. 

The Veteran contends that he has right ankle disability that is related to a sprain he sustained during physical training in June 2015.  The Veteran also contends that he has nerve sheath tumor of the left leg that is related “to exposure to the EF111 radar jamming airplane at Cannon AFB, NM” or Ciproxin use in service. See October 2016 correspondence; see also July 2017 correspondence. 

The presence of a current disability is the cornerstone of any service connection claim. Service connection is not warranted when there is no current disability. Brammer, 3 Vet. App. 223. Current means near the time a claim is filed or at any time during its pendency. Romanowsky, 26 Vet. App. 289; McClain, 21 Vet. App. 319. Disability “refers to the functional impairment of earning capacity.” Saunders, 886 F.3d 1356. 

The Veteran’s STR reflect that he sought treatment for right ankle injury in June 2015, while he was on active duty for training (ACDUTRA). The Veteran filed a claim for disability on November 17, 2016, more than one year after his ankle injury. There is no competent evidence that shows that he has had recurrent symptoms related to right ankle injury since then. In an April 2020 Disability Benefits Questionnaire (DBQ), a VA examiner concluded that the Veteran’s June 2015 injury resulted in mild right ankle sprain that resolved and there was no medical evidence that reflects that his symptoms continued. The medical evidence of record does not reflect continued treatment or report of right ankle disability. Although the Veteran reports right ankle pain, he has not asserted functional loss that causes impairment of earning capacity. Nor is there other evidence that reflects that his right ankle pain is of such severity to cause functional impairment of earning capacity. As such, the Board finds that the Veteran does not meet the first prong for a service connection claim. A right ankle disability is not established.

Similarly, the medical evidence of record does not show diagnosis or treatment for nerve sheath tumor of the left leg either after or close to the time he filed the claim in October 2016. Review of the medical records show that the Veteran was diagnosed with right sciatic nerve sheath tumor in October 2012 and he went through complete resection in February 2013. The Veteran’s treatment records, however, do not reflect that he ever had nerve sheath tumor in the left leg. The Board recognizes that the Veteran’s representative has filed statement that the Veteran may have been referring to his right leg when he initially filed the claim. However, the Veteran has continued to assert that he has nerve sheath tumor in the left leg throughout the appeal period. To interpret the claim in the light most favorable to the Veteran, the Board has also considered whether there is a current disability of nerve sheath tumor in the right leg. However, the evidence does not indicate any symptoms or diagnosis during or close to the appeal period. The tumor appears to have resolved after the 2013 resection. Thus, the competent evidence of record does not establish a current disability of nerve sheath tumor in the right or left leg.

The Veteran believes he has current disabilities of the right ankle and nerve sheath tumor of the left leg that warrant service connection. Diagnosis of the claimed disabilities is medically complex, and it requires specialized medical education, experience, or training.  Jandreau, 492 F.3d at 1377 n.4. The Veteran has not demonstrated that he has any medical training to offer a competent opinion as to whether he has these conditions.

In contrast, the VA examiner who conducted the April 2020 DBQ has the medical expertise to make competent diagnoses and found that there is no current disability of the right ankle. The Board finds that the examiner’s opinion is probative evidence.

Therefore, absent evidence showing a current disability of, or a functional impairment of earning capacity caused by, right ankle or nerve sheath tumor of the left leg, service connection cannot be established, and the Board need not consider the in-service incident or nexus elements of service connection. 

For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claims. Accordingly, the benefit-of-the-doubt doctrine is not for application, and the claims for service connection for right ankle disability and nerve sheath tumor of the left leg must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.

8. Entitlement to service connection for hypertension is denied. 

The Veteran contends service connection for hypertension is warranted. The Veteran asserts that he had had hypertension during active service, and he was not evaluated to put it under control. See July 2017 Statement. 

Hypertension refers to persistently high arterial blood pressure. For VA purposes, the term hypertension means that the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm, or greater with a diastolic blood pressure of less than 90mm.38C.F.R. §4.104, DC 7101, Note (1). This provision also states that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. 

The Board concludes that the Veteran does not have a current diagnosis of hypertension and has not had one at any time during the pendency of the claim or recent to the filing of the claim.  Romanowsky; McClain. The claim was filed in November 2016. Treatment records from March 2017 reflect that the Veteran has had elevated blood pressure reading without diagnosis of hypertension. There was one blood pressure reading from March 2020, that showed 142/90. The record also has blood pressure reading from May 2016, June 2016, October 2017, November 2017, January 2018, May 2018, August 2018, November 2018, May 2019, and December 2019, which all showed diastolic pressure that is predominantly less than 90mm or systolic blood pressure less than 160mm. 

While the Veteran believes he has hypertension, he is not competent to provide a diagnosis in this case.  The issue is medically complex, as it requires specialized medical education/knowledge to diagnose hypertension.  Jandreau. Consequently, the Board gives more probative weight to the competent medical evidence of record that reflect blood pressure predominantly less than required for diagnosis of hypertension for VA purposes.

As previously noted, absent evidence establishing a current disability, a service connection claim cannot be granted. Therefore, the preponderance of the evidence is against the Veteran’s claim. Accordingly, the benefit-of-the-doubt doctrine is not for application, and the claim for service connection for hypertension must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3.

Earlier Effective Date

Generally, the effective date for an award of service connection is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400 (b). Alternately, disability compensation may be effective the day following separation from active service if the claim is received within one year after separation from service. 38 C.F.R. § 3.400 (b)(2)(i). 

9. Entitlement to an effective date earlier than October 5, 2017 for service connection for painful surgical scar on the right breast is denied. 

10. Entitlement to an effective date earlier than October 5, 2017 for service connection for linear surgical scar on the right breast is denied. 

11. Entitlement to an effective date earlier than November 17, 2016 for service connection for GI disabilities is denied.

12. Entitlement to an effective date earlier than November 17, 2016 for service connection for left wrist fracture is denied. 

In this case, the Veteran’s claims for service connection for surgical scars on the right breast, GI disabilities, and left wrist fracture were not received within one year after his separation from active service in June 2008. 

Rather, the Veteran first filed a claim for service connection for scar as secondary to right breast condition on October 5, 2017, and he filed a claim for service connection for gastrointestinal problems on November 17, 2016.  The Veteran’s representative contends that earlier effective date for the grant of service connection for these conditions is warranted because the Veteran had symptoms prior to the effective dates assigned. However, as noted above, effective dates for the grant of service connection is assigned based on the date the claim was received or the date entitlement arose, whichever is later. In this case, the date of receipt of the claims is later than the date entitlement arose. Therefore, October 5, 2017, and November 17, 2016 are the appropriate effective date for the grant of service connection for surgical scar on the right breast and GI disabilities, respectively.  

As to the claim for entitlement to earlier effective date for the grant of service connection for left wrist fracture, the AOJ afforded the Veteran the benefit of the doubt and found that the November 17, 2016 claim for “bone fracture(s)” intended to include service connection for left wrist disability as well as right wrist disability. The record does not contain an earlier submission that can be construed as a claim for entitlement to service connection for left wrist fracture; July 17, 2017 was the first time VA received a claim where the Veteran clearly stated that he sought service connection for left wrist fracture. Even if entitlement arose prior to November 17, 2016, the date of claim is later. For these reasons, the Board denies an effective date earlier than November 17, 2016 for left wrist fracture. 

13. An effective date of September 29, 2016 for service connection for left wrist nerve paralysis/nerve damage is granted.

Review of the claims file shows that the Veteran filed a claim for service connection for nerve damage on September 29, 2016. The AOJ denied this claim as “compressed ulnar nerve left elbow” in a May 2017 rating decision and ultimately granted the claim in a May 2018 rating decision as “left wrist nerve paralysis/nerve damage.” Viewing the record as a whole, it is clear to the Board that the September 29, 2016 claim was intended to encompass both the compressed left ulnar nerve and left wrist nerve damage. September 29, 2016 is the appropriate effective date for the grant of service connection for left wrist nerve paralysis/nerve damage because that is the date of receipt of the claim.

Increased Rating

A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 

Separate DCs identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which two evaluations should be applied, 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.

14. Entitlement to an initial rating higher than 10 percent for painful surgical scar on the right breast is denied. 

15. Entitlement to an initial compensable rating for linear surgical scar on the right breast is denied. 

The Veteran’s painful surgical scar on the right breast is rated 10 percent disabling under DC 7804, applicable to unstable or painful scar(s). The Veteran’s linear surgical scar is assigned a noncompensable rating under DC 7805.

Under DC 7804, one or two scars that are unstable or painful warrant a 10 percent rating. Three or four scars that are unstable or painful warrant a 20 percent rating. Five or more scars that are unstable or painful warrant a 30 percent rating. 38 C.F.R. § 4.118.  Note 1 to DC 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id.

DC 7805 allows evaluation of any disabling effect(s) of a scar not considered in a rating provided under DC 7800-04 

In this case, the Board finds that the preponderance of the evidence of record is against the assignment of a rating in excess of 10 percent under DC 7804 because the Veteran’s disability is not manifested by three or four scars that are unstable or painful. The Board finds that the preponderance of the evidence is against the assignment of a compensable rating for the Veteran’s linear surgical scar under DC 7805 as there are no other disabling effect(s) not considered in a rating provided under DC 7804.  

To the contrary, VA examinations from October 2017 and February 2020 found that the Veteran only has one scar on his right breast. The Veteran does not contend that he currently has more than one scar on his right breast. Nor does the evidence show that he has more than one painful or unstable scar. Absent evidence showing three or four painful or unstable scars, a rating higher than 10 percent is not warranted under DC 7804. 

The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. He filed a statement, in January 2019, indicating that his scar is extremely painful. The Veteran is competent to report observable symptoms, to include pain. His report of pain is credible and fully contemplated by the disability rating assigned under DC 7804.

The Veteran has also reported that his scar is disfiguring and “deep tissue” with nerve damage. However, the Veteran’s surgical scar is linear in nature and not considered disfiguring in that it is not on the head, neck, or face. 38 C.F.R. § 4.118. Furthermore, a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801, Note (1). In this case, the Veteran’s February 2020 examination found no tissue damage. The Veteran has not demonstrated that he has the necessary medical training to ascertain whether he has soft tissue damage or nerve damage. Therefore, the Board assigns higher probative value to the VA examination of record that show no soft tissue damage or nerve damage. Furthermore, even if the Veteran’s scar is deep, as explained above, the scar is linear and covers less than the 6 square inches required to assign a compensable rating under DC 7801 (applicable to deep nonlinear scars).

The Board has also considered the other DCs pertaining to scars. Considering that the scar is on the Veteran’s right breast, DC 7800, which pertains to scars of the head, face, or neck, is not applicable. The Veteran’s scar is measured at 3 cm by 2 cm, which is less than the 6 square inches or 144 square inches necessary to award compensable rating under DC 7801 or DC 7802, respectively. Finally, the Veteran’s surgical scar is assigned a noncompensable rating under DC 7805. 

In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claims for disability ratings in excess of 10 percent for painful surgical scar on the right breast, and 0 percent for linear surgical scar. The Board finds the benefit of the doubt doctrine is not applicable, as there is no competent evidence that the criteria for a higher rating are met. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The claims are denied.

16. Entitlement to an initial rating higher than 10 percent for left wrist fracture is denied. 

The Veteran contends that an increased rating is warranted for his service-connected left wrist fracture, which is currently assigned a 10 percent rating under DC 5215. The appeal period begins on November 17, 2016, the date of claim.

Under DC 5215, limitation of motion of the major or minor wrist is evaluated as follows: dorsiflexion less than 15 degrees (10 percent); and palmar flexion limited in line with forearm (10 percent). 

The Veteran underwent wrist examination in October 2018. During that examination the Veteran had abnormal or limited range of motion; 60 degrees of palmar flexion and dorsiflexion. The examiner noted that the Veteran had pain during the range of motion test but concluded that the pain does not cause functional loss. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. The examiner stated that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The Veteran did not report experiencing flare-ups. There was no ankylosis of the left wrist noted. 

A September 2017 wrist examination found that the Veteran had normal range of motion. There was no pain noted on examination, no objective evidence of localized tenderness or pain on palpation, and no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. The examiner stated that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. Muscle strength testing was normal in both flexion and extension and there was no muscle atrophy or ankylosis.

Similarly, the Veteran had normal range of motion during a December 2016 examination. His range of motion did not change after repetitive use test. During this exam, the Veteran reported flare-ups manifested by increase pain that occur daily. He also reported that he is unable to type continuously for longer than 15 minutes. This examination also found normal muscle strength, no muscle atrophy and no ankylosis.  

In summary, throughout the appeal period the Veteran has shown both palmar flexion and dorsiflexion in excess of that required for a compensable rating and the currently assigned rating is based on painful motion. 38 C.F.R. § 4.59. The Board observes that a 10 percent rating is the maximum schedular rating available absent ankylosis. In a September 2017 statement in support of claim, he reported that the left wrist is “not frozen” but is painful and has limited motion. While the Veteran is competent to report functional loss, there is no evidence of left wrist ankylosis and the Board does not find adequate evidence to support a higher rating based on functional impairment due to pain on motion or other factors, even considering flare-ups. Painful motion with noncompensable limitation of motion is contemplated by his current 10 percent rating. Therefore, the preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 4.3. The claim is denied. 

17. For the appeal period prior to August 9, 2019, entitlement to an initial rating higher than 60 percent for left wrist nerve paralysis/nerve damage is denied. 

The Veteran contends that he is entitled to a higher initial rating for his left wrist nerve paralysis/nerve damage, which is currently assigned a 60 percent rating under DC 8513. The appeal period begins on September 29, 2016, the date of claim as determined earlier in this decision. As explained in the remand section of this decision, the record has a peripheral neuropathy VA examination from April 2020, which has not been considered by the AOJ as it pertains to the claim for increased rating left wrist nerve paralysis/nerve damage. The SOC issued on August 9, 2019 reflects that the AOJ has considered the evidence of record as of that time, and the April 2020 VA examination does not affect the rating assigned for the appeal period prior to that date. Therefore, the Board need not delay adjudication of the claim for the appeal period prior to August 9, 2019. 

The Veteran is right hand dominant. See e. g., September 2017 VA Wrist Examination Report. Thus, the ratings for the “minor” extremity will apply for the left wrist.

Paralysis of all radicular groups (lower, middle, and upper radicular groups of the upper extremities) is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8513.  Under these criteria, severe incomplete paralysis is rated as 60 percent for the minor extremity.  A maximum of 80 percent is warranted for complete paralysis of all minor radicular groups. 38 C.F.R. § 4.124a.

The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.

In a September 2017 statement in support of claim, the Veteran reported that he has complete paralysis of the left pinky and ring fingers, and they have atrophied. He stated the two fingers have no feeling, nor does the bottom part of the hand. He stated that the left wrist is “not frozen” but is painful and has limited motion. The Board notes that the latter symptom is assigned a separate 10 percent rating under DC 5215 (see above).  The Veteran is competent and credible to report these symptoms. The Veteran has not actually stated that there is complete paralysis of all radicular groups.

A January 2018 peripheral nerve conditions examination reflects that the Veteran’s condition was manifested by severe constant pain, moderate intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness of the left upper extremity. The Veteran had reduced muscle strength. He had active movement against some resistance (4/5) during wrist flexion, wrist extension, grip, and pinch. The exam found no signs of trophic changes. In addition, the Veteran had normal reflexes. The sensory exam found decreased sensation of the inner/outer forearm and hand/fingers. The examiner noted severe incomplete paralysis of the median nerve and ulnar nerve. The examiner also noted atrophy of the pinky and long finger muscles. 

However, the examination found that all the nerves and groups involved in the Veteran’s condition were manifested by no more than severe incomplete paralysis. The examiner also found that the functional impairment of the extremity was not so severe that its effective remaining function would be equally well served by an amputation with prosthesis. 

The Board finds the medical evidence of record to be probative because the examiners reviewed the Veteran’s medical record and conducted the necessary examination. The medical evidence shows moderate to severe incomplete paralysis of the radicular groups during the appeal period. Absent competent evidence of complete paralysis of all radicular groups, a rating higher than 60 percent for left wrist nerve paralysis/nerve damage is not warranted.

The Board has considered the applicability of DC 8515 and DC 8516, which are relevant to median and ulnar nerve, respectively. However, neither DC 8515 nor DC 8516 provide ratings higher than 60 percent. Because the evidence does not show complete paralysis of the median or ulnar nerve, the maximum ratings available to the Veteran under these DCs would be 40 percent for severe incomplete paralysis of the median nerve under DC 8515, and 30 percent for severe incomplete paralysis of the ulnar nerve under DC 8516. A 40 percent rating and a 30 percent rating combine to a 60 percent rating under 38 C.F.R. § 4.25. Thus, higher ratings are not available even if separate ratings were to be assigned.

Furthermore, the amputation rule prevents the disabilities of an extremity from exceeding the rating for the amputation at the elective level. 38 C.F.R. § 4.68. Amputation of the forearm below the insertion of the pronator teres (roughly midway down the forearm and higher than the wrist) warrants a 60 percent rating for the minor extremity. The Veteran is also in receipt of separate ratings for the minor extremity of 10 percent for left wrist fracture and 0% for left wrist scar, which combine to 60 percent with his current 60 percent rating under 38 C.F.R. § 4.25.

In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 60 percent for left wrist nerve paralysis/nerve damage.  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.

18. Entitlement to an initial rating of 60 percent for GI disabilities is granted. 

The Veteran’s GI disabilities are rated as 30 percent disabling under DC 7399-7346 prior to April 5, 2018, and 30 percent disabling under DC 7319 thereafter. As explained in the introductory section of the decision, this rating encompasses service-connected IBS, GERD, and antrum gastritis.

Under DC 7346 (hiatal hernia), a 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.

Under DC 7319 (irritable colon syndrome), a maximum 30 percent rating is warranted for severe irritable colon syndrome, with diarrhea or alternating diarrhea and constipation, with more or less constant abdominal distress.

After reviewing the medical evidence of record and in the interest of affording the Veteran the maximum benefit possible, the Board finds that the Veteran’s GI disabilities should be evaluated under DC 7346 for the entire appeal period. The change in the applicable DC does not constitute a severance of the service-connected disability. Rather, DC 7346 more accurately captures the Veteran’s service-connected symptoms. Notably, 30 percent is the highest rating available under DC 7319. The change in DC has not resulted in any reduced benefit to the Veteran, but rather provides a possibility of assigning rating higher than 30 percent.

After reviewing the evidence in light most favorable to the Veteran and affording him the benefit of the doubt, the Board concludes that the severity of his GI disabilities approximates a level contemplated by a 60 percent rating under DC 7346. A 60 percent rating is the maximum rating possible under DC 7346.   

To that end, the Veteran underwent VA examination in April 2018, where the examiner noted that he has abdominal cramping five to six times a week and he has vomiting. The examiner also noted that the Veteran’s GERD symptoms wake him up every night with a cough. Treatment records from August 2017 reflects that the Veteran has abdominal pain. In addition, the Veteran underwent an April 2017 VA examination, where the examiner noted that he has melena with moderate anemia. This examination also showed that the Veteran has periodic vomiting and abdominal pain that occurs at least monthly. The Board recognizes that the examiners concluded that the Veteran’s symptoms are productive of no more than considerable impairment of health. However, considering the Veteran has cramping most days out of the week, vomiting two to three times a week and disturbance of sleep every night, the Board concludes that his symptoms approximate severe impairment of health. Combined with the evidence showing pain and melena with moderate anemia, the Board concludes that, overall, the Veteran’s GI disabilities are manifested by symptoms consistent with a 60 percent rating under DC 7346. 

The Veteran’s representative contends that separate rating should be awarded to the Veteran’s IBS, GERD and antrum gastritis. See November 2018 NOD. 

While VA’s rating schedule recognizes that a single disability may result from more than one distinct injury or disease, rating the same disability or its manifestation(s) under different DCs - a practice known as pyramiding - is prohibited. See 38 C.F.R. § 4.14. The critical element in permitting the assignment of several evaluations under various DCs is that none of the symptomatology for any one of the disorders is duplicative or overlapping with the symptomatology of the other disorder. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Here, the Veteran’s symptoms for GI disabilities overlap and assigning separate disability rating would pyramid, compensating the Veteran multiple times for the same symptomatology.

A 60 percent rating is granted for the entire appeal period.

19. Entitlement to a compensable evaluation for status post right hand boxer fracture is denied. 

The Veteran generally asserts that rating assigned to his right-hand disability status post boxer fracture does not adequately reflect the severity of his disability. 

This disability is currently rated 0 percent disabling under DC 5299-5230. The hyphenated code indicates that the disability is rated by analogy. Pursuant to the rating schedule, any limitation of motion of the ring or little finger (major or minor) is assigned a noncompensable evaluation. 38 C.F.R. § 4.71a, DC 5230. As set forth, the rating schedule provides for a noncompensable rating for any limitation of motion of the ring or little finger. A compensable rating for the ring or little finger essentially requires amputation or the functional equivalent thereof. 38 C.F.R. § 4.71a, DC 5156, 5227. Alternatively, a compensable rating is available if there is ankylosis (favorable or unfavorable) of both little and ring finger. 38 C.F.R. § 4.71a, DC 5219, 5223. 

The Veteran sustained metacarpal fracture of the fourth (ring finger) and fifth (little finger) digits due to a fall in service. See February 2010 VA examination.  The Veteran contends that he has Boutonniere deformity of the ring and pinkie fingers that causes constant severe pain. He reported that the hand requires occupational therapy and “possible surgery.” See December 2016, November 2017 statements. He submitted private orthopedic treatment records that show a diagnosis of Boutonniere deformity of the right ring finger in August 2016, and a referral order to occupational therapy for same. 

Private treatment records from August 2016 reflect that the Veteran had mild tenderness on palpation and decreased sensation on the ring finger. Radiographs of the right hand found no malunion at the ring finger.  

The Veteran underwent a VA examination in April 2017. Notably, the Veteran is right hand dominant. The examiner found Mallet finger deformity of the DIP joint on the right ring finger. The Veteran reported experiencing pain, but he did not report functional loss.  The examiner further noted that the Veteran has lost 10 degrees extension of the PIP joint. He reported pain in the fracture site (right ring finger) most days. The Veteran denied flare-ups. On physical examination, there was no limitation of motion or evidence of painful motion for any of the other fingers or thumb. The Veteran was able to perform repetitive use testing with no additional limitation of motion. On muscle strength testing, right hand grip was normal. There was no ankylosis or functional loss or functional impairment of any of the fingers or thumb noted during the exam. The passive range of motion of the right finger revealed the ability to extend completely to zero degrees extension of the DIP joint. All passive motion testing was identical to the active testing.

The Veteran also submitted a DBQ in November 2017. That DBQ was not signed by a medical professional. Therefore, the Board cannot assign it any probative value. 

The Veteran submitted a November 2017 private orthopedic referral order for occupational therapy, and prescription for ibuprofen. VA treatment records also reflect that the Veteran was scheduled for occupational therapy consult in January 2018 and attempts to schedule occupational therapy was discontinued in May 2018 because of multiple cancellations of appointments.  In a January 2018 statement, the Veteran reported that his right hand was “now in a splint for the next 8 weeks with no use. If the splint does not repair the damaged ligaments for a [Boutonniere] deformity Dr. [S.] will recommend surgery. Hand is in constant pain and now requires a PIP extension.” The Veteran submitted documents from Mountain View Regional Medical Center that reflects that he was required to use PIP extension daily as of December 2017 and he was required to use relative motion flexion yoke with activity for six weeks from January 2018.  

In a February 2018 statement, the Veteran reported that he underwent right hand surgery and he has zero usage of the hand for six weeks. He further reported that his hand freezes daily and he has constant pain that warrants a 10 percent rating.  He submitted a one page Order from a private orthopedist dated February 6, 2018, which read: “Patient was seen today and will be having surgery. No PT until cleared by orthopedic.” 

Treatment records from Mount View Medical Group show that in February 2018, the Veteran injured his right hand while golfing. At that time, X-ray showed that he fractured the small and ring finger. He was required to have surgery and a pin was inserted in February 2018. The pin was removed in March 2018 and he was cleared to return to work. Evaluation from May 2018 found that the Veteran had full active range of motion and normal muscle strength. There was no Boutonniere in any digits found, and X-ray of the hand showed that the ring finger and small finger fracture was healed with no subluxation and appropriate alignment of the metacarpals and carpometacarpal joints of the fingers. 

The Veteran underwent another VA examination in October 2018, where he had limitation of range of flexion of his right ring finger and little finger. Notably, there was limitation of range of flexion of the long finger as well. However, the Board notes that the Veteran’s right hand injury in service is related to his right ring finger and little finger. While the Veteran had pain during the range of motion testing, the examiner concluded that the pain does not cause functional loss. The Veteran himself did not report functional loss and he denied flare-ups. The examiner noted that pain, weakness, fatigability or incoordination does not significantly limit functional ability with repeated use over a period of time. On muscle strength testing, right hand grip was normal. There was no muscle atrophy or ankylosis. 

A DBQ from February 2020 reflects that the Veteran had some limitation of extension of the ring finger, but he had normal range of motion of his little finger. There was no additional functional loss after repetitive use testing. There was no pain noted during the range of motion testing, but the examiner noted objective evidence of mild localized tenderness or pain on palpation. The Veteran had normal hand grip, and there was no muscle atrophy or ankylosis found. Notably, the Veteran did not report having any functional loss or functional impairment. The DBQ reflects that there was no evidence of pain during passive range of motion or on non-weight bearing testing of the right hand.    

As noted above, the rating schedule does not provide a compensable disability rating for limitation of motion of the ring or little finger. Under the rating schedule, a compensable disability rating is only warranted where there is amputation of the ring or little finger or functional loss of such severity that no effective function remains in those fingers or there is ankylosis of both fingers. Here, there is no evidence of amputation of the Veteran’s ring or little finger. VA examinations of record do not reflect functional loss. In fact, the VA examinations of record specifically show that the Veteran’s impairment is not of such severity that no effective function remains in his right and little fingers. See e.g. February 2020 DBQ.  In addition, the objective evidence shows that his right-hand grip was normal. Therefore, any functional loss the Veteran may have due to pain does not rise to the level of being equivalent to amputation of his ring or little finger. Moreover, although the Veteran reports that his right hand freezes, the objective medical evidence of record reflects that the Veteran had range of motion of his little and ring fingers and he had no ankylosis.   

A VA range of motion examination must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The October 2018 VA examination indicates that there is objective evidence of pain during passive range of motion, and there was no evidence of pain on non-weight bearing testing of the right hand. On the other hand, there was no evidence of pain on passive range of motion or non-weight bearing testing during the February 2020 VA examination. To the extent both examinations do not indicate range of motion measurements, they do not satisfy Correia criteria. However, as explained above, the rating schedule does not provide a compensable rating for limitation of range of motion of the ring or little finger. Therefore, a remand to obtain another examination is futile, and the Board need not delay adjudication of the claim.   

The Veteran believes that he has arthritis. See October 2019 lay statement. Therefore, the Board has considered whether a compensable rating is warranted under DC 5003/5010. 

Under DC 5003/5010, a 10 percent rating may be assigned for degenerative arthritis with X-ray evidence of involvement of two or more major joints or two or more minor joint groups. Multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities are considered groups of minor joints. 38 C.F.R. § 4.45.  

In this case, the record does not have X-ray evidence of arthritis. In fact, private X-ray report of the right hand dated in February 2020 showed no acute abnormalities and no overt soft tissue abnormality.  Similarly, right ring and small finger metacarpals and carpometacarpal joints had normal appearance as shown by a May 2018 X-ray. In addition, radiographs of the right hand did not find arthritis in August 2016. In general, the Veteran’s report of arthritis alone is not sufficient to assign a compensable rating under DC 5003/5010. Absent x-ray evidence showing arthritis, a 10 percent rating is not warranted. 

Moreover, the Board has fully considered the fact that the Veteran had surgery in February 2018 and his reports that he had zero usage of his hands post-surgery. Ordinarily, 38 C.F.R. § 4.29 directs that a total disability rating will be assigned when it is established that a service-connected disability has required hospital treatment or observation in a VA or an approved hospital for a period in excess of 21 days. A temporary total disability rating may also be assigned if a service-connected disability results in one of the following: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30. 

The Veteran was not hospitalized for 21 days, a major joint was not immobilized, and there were no severe post-operative residuals. The surgery did necessitate splinting of the hand for six weeks. In this case, however, the Veteran’s surgery was to repair fracture that occurred due to a fall on February 4, 2018, while the Veteran was playing golf. See February 2018 Progress Note from Mountain View Medical Group; see also February 2018 Las Cruces Surgical Center Operative Report. Therefore, the surgery was not related to his service-connected disability. Because the Veteran’s service-connected status post right hand boxer fracture did not result in the surgery a temporary total rating under 38 C.F.R. § 4.29 and §4.30 is not warranted.

In addition, in light of the Veteran’s report of pain, the Board has considered whether a compensable rating can be assigned under 38 C.F.R. § 4.59.  However, a minimum compensable rating for painful motion under 38 C.F.R. § 4.59 is limited by the DC applicable to a claimant’s disability, and where that DC does not provide a compensable rating § 4.59 does not apply. Sowers v. McDonald, 27 Vet. App. 472 (2016). Because no impairment of motion warrants a compensable rating under DC 5230, reading § 4.59 in conjunction with DC 5230, the Veteran is not entitled to a minimum compensable disability rating under his assigned DC.

The Board is sympathetic to the Veteran’s report of pain and freezing of the right hand. However, the Board cannot grant compensable rating absent evidence showing amputation or the functional equivalent to amputation of the ring or little finger or X-ray evidence showing presence of arthritis. In summary, the criteria for a compensable rating for status post right hand boxer fracture are not met or more nearly approximated at any time during the appeal period. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 4.3. The claim is denied.

20. For the appeal period prior to November 6, 2017, an initial rating of 60 percent for herpes is granted.  

The Veteran’s herpes is currently assigned 30 percent rating from November 27, 2016 to November 5, 2017 under DC 7815. 

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 AOJ 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). In this case, the appeal period before the Board is from November 27, 2016 to November 6, 2017. Therefore, the Board will not consider the post-August 13, 2018 amended regulations.  

Under DC 7815, 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.  Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability.  38 C.F.R. § 4.118, DC 7806, 7815, 7816, 7821, 7822.

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.  

Here, reviewing the evidence in light most favorable to the Veteran and affording him the benefit of the doubt, the Board concludes that the severity of his herpes approximates a level contemplated by 60 percent rating. To that end, the Veteran contends that he is entitled to an increased rating for his service-connected herpes because he is required to take medication constantly. See October 2017 Statement. He underwent VA examination in April 2017, where the examiner checked the box that indicates that the Veteran takes oral medication for 6 weeks or more, but not constantly.  The examiner, however, commented that the Veteran is required to take “[a]cyclovir 1000 mg. daily to prevent outbreaks. This is prescribed to be taken every day when the veteran has outbreaks. The intent is to avoid an outbreak. Not used constantly.” Although the April 2017 examiner concluded that the Veteran does not have to take medication constantly, considering the finding that the Veteran takes Acyclovir daily, the Board concludes that the Veteran’s herpes requires near-constant use of systemic therapy. 

Notably, the AOJ based the effective date of a 60 percent rating—November 6, 2017—on the date a DBQ was completed, where an examiner indicated constant use of oral medication (Valtrex). Review of that DBQ shows that the Veteran had “on average 12 outbreaks annually” requiring medication. VA treatment records from October 2017 reflect that the Veteran reported taking medication (acyclovir) daily. Therefore, there is evidence in the record that the Veteran was taking near-constant systemic therapy prior to November 6, 2017. See Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (holding that “it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date”). 

The Board has considered whether any other DC related to disabilities of the skin would provide for a higher disability evaluation.  However, DC 7800 is the only other DC that offers higher than 60 percent rating, and the evidence does not reflect that the Veteran’s herpes causes disfigurement of the head, face, or neck to warrant evaluation under such DC. 

In sum, reviewing the evidence in light most favorable to the Veteran and affording him the benefit of the doubt, the severity of his condition does more nearly approximate a level of impairment contemplated by a 60 percent rating under DC 7815. As noted above, 60 percent is the maximum rating possible under DC 7815.

21. Entitlement to service connection for compressed ulnar nerve of the left elbow is dismissed. 

Service connection for compression of the ulnar nerve was implicitly granted in the May 2018 rating decision granting service connection for left wrist nerve paralysis/nerve damage. This disability is compensated in the rating assigned for left wrist nerve paralysis/nerve damage, characterized by the rating decision as “a 60 percent evaluation for your ulnar and median nerves.”

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105.  In the present case, the benefit sought has been granted in full; hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.

REASONS FOR REMAND

22. Entitlement to service connection for a head injury is remanded.

The Veteran claims that he has a head injury. See October 2017 VA 21-526E, Fully Developed Claim (Compensation).

The Veteran filed a claim for head injury in October 2017. The Veteran underwent a comprehensive traumatic brain injury (TBI) evaluation in January 2020, where the physician assessed a history of one mild TBI in 2003 due to an altercation. The physician assessed “issues related to sleep and sensitivity to light.” The physician’s specialty was identified only as “Staff Physician.”

A VA medical opinion was provided in April 2020 to clarify whether or not the Veteran has a confirmed diagnosis of TBI. The examiner found that it is less likely than not that the “orbital contusion and eyebrow laceration incurred 26 May 2003” meet the diagnostic criteria for a TBI. The rationale provided is that “[t]here was no [a]lteration of [c]onsciousness, no [l]oss of [c]onsciousness and no [a]mnesia.” However, the examiner explicitly states: “Note this VAE is a Family Physician, not a Psychiatrist, Neurologist, Neurosurgeon, or PMR physician.”

A diagnosis of TBI must be made by a physiatrist, psychiatrist, neurosurgeon or neurologist. To date, it does not appear a TBI diagnostic examination has been conducted by one of the required clinicians.

A remand is necessary to provide an adequate examination with an appropriate specialist to determine whether the Veteran has a current diagnosis of, or any current residuals of, a TBI.

23. Entitlement to service connection for respiratory condition, to include allergic rhinitis is remanded.

The AOJ obtained a nexus opinion regarding the claimed respiratory condition in April 2020, where the examiner concluded that the Veteran’s allergic rhinitis is less likely than not related to the Veteran’s upper respiratory infection documented in service from April 1997 to September 2005. The examiner wrote that “each entry [from] that time period clearly describes an acute illness. Veteran stated at his DGMC visit 19 May 2009 that he had no prior history of allergic rhinitis.” This examiner, however, did not address the Veteran’s contention that his respiratory condition was made worse by his exposure to burn pits in service. See January 2018 Correspondence.  

Service connection may be warranted for an injury or disease incurred or aggravated during active duty for training (ACDUTRA) or an injury incurred or aggravated during inactive duty for training (INACDUTRA). Here, the Veteran has a diagnosis of allergic rhinitis in January 2012. Furthermore, in a correspondence received in January 2008, the Veteran reported that he was hospitalized during an operational exercise due to his respiratory condition in May 2008, May 2009 and December 2012.  Review of the record shows that the Veteran was in the reserves at that time. The AOJ should attempt to verify the Veteran’s period of ACDUTRA or INACDUTRA and obtain the Veteran’s complete medical records from these periods of service. 

24. Entitlement to service connection for sleep apnea, to include as secondary to a respiratory condition and/or GI disability is remanded. 

To the extent the Veteran claims that his sleep apnea is secondary to his respiratory condition, the issues are inextricably intertwined.  Thus, a remand of the claim for service connection for sleep apnea is required.

Moreover, the AOJ obtained a nexus opinion in April 2020. The examiner opined that “[i]t is less likely than not … that veteran’s claimed [sleep apnea] has its origin in Allergic Rhinitis with origin in service.” The examiner reasoned that the Veteran’s obesity and his gender are the primary risk factors. The examiner does not fully explain the reason why allergic rhinitis is not among the risk factors. The examiner in general does not offer a complete rationale to support the conclusion.  Furthermore, the opinion does not address whether the Veteran’s sleep apnea is aggravated by his allergic rhinitis. Nor does it address the Veteran’s contention of direct service connection or that his sleep apnea is secondary to his GI disability. For these reasons, a remand to obtain another opinion is necessary before the claim can be adjudicated.  

25. Entitlement to service connection for right shoulder disability is remanded. 

26. Entitlement to service connection for left shoulder disability is remanded. 

The Veteran contends that he has right and left shoulder disabilities that are related to military exercises or/and the use of ciprofloxacin in service. 

He underwent VA examination in December 2017, where he was diagnosed with shoulder strain in both shoulders, labral tear in the left shoulder, arthroscopic procedure/slap repair of the left shoulder and right shoulder derangement. The examiner opined that the Veteran’s right shoulder disability was less likely than not related to his military service because “there is no objective evidence.” The examiner noted that the Veteran’s STR shows that the Veteran had right shoulder strain that resolved. The examiner further explained that the Veteran had right shoulder derangement in 2017 and left shoulder surgical procedure in 2016, which the examiner concluded was after the Veteran’s active military service. However, as previously noted, the Veteran continued to serve in the Air Force reserves in 2016 and 2017. Furthermore, the examiner did not discuss the Veteran’s contention that his condition is related to wear and tear caused by military service or drills in service. 

The AOJ also obtained an addendum opinion in April 2020, where the examiner concluded that the Veteran’s left shoulder is less likely than not related to his use of ciprofloxacin or “wear and tear of military service.” The examiner’s rationale, however, focused on the Veteran’s use of ciprofloxacin without addressing his contention that military exercise caused wear and tear of his shoulders.  

In October 2017, the Veteran submitted a statement indicating that his shoulder disabilities are related to exercise during his active service and his time in the reserves. The medical opinions obtained do not address the Veteran’s contention that his bilateral shoulder disabilities are related to his “bi-annual PT test” during his service in the Air Force reserves. Therefore, a remand to obtain an opinion that contemplates the Veteran’s lay reports of shoulder issues during his active service as well as the period of service in the reserves is necessary before the claim can be adjudicated.  

27. Entitlement to service connection for scar tissue on the left rotator cuff, to include as secondary to left shoulder disability, is remanded. 

The December 2017 VA examination found that the Veteran has left shoulder scars related to his left shoulder disability. Therefore, a decision on the the issue of service connection for left shoulder disability could significantly impact a decision on the issue of service connection for scar tissue on the left rotator cuff. Thus, the issues are inextricably intertwined and a remand is necessary before the claim can be adjudicated. 

28. Entitlement to service connection for migraine is remanded.

An April 2020 medical opinion was obtained regarding the Veteran’s migraine. The examiner concluded that the Veteran’s migraine headaches are less likely than not related to a fight the Veteran was involved in while in service in May 2005. The examiner reasoned that the Veteran had no headaches after the fight and that post-traumatic headaches would have occurred immediately following the fight.  The examiner wrote that there was only a “single in-service treatment of migraine,” where the Veteran reported that his headaches began at the age of 15 and have become less frequent.

However, the March 1998 STR to which the examiner refers shows the Veteran complained of headaches at that visit, and while headaches began at age 15, he had not had any in several years. “[Headache] is classic migraine with aura” and symptoms included photophobia, throbbing unilateral frontal pain lasting 4-12 hours. Imitrex was prescribed, a common migraine treatment. This record actually indicates that the Veteran had a true migraine in service and that it was the first in many years.

 Review of the Veteran’s STR reflect that he reported having headaches in May and July 2000. The examiner’s opinion specifically focuses on whether the Veteran’s migraines are related to the fight in May 2005, and the opinion does not address the Veteran’s complaint of headaches prior to that date. Nor does the examiner address whether there is clear and unmistakable evidence that the Veteran’s migraine pre-existed active service and was not aggravated beyond its natural progression by Veteran’s active service. Therefore, a remand to obtain an addendum opinion is necessary before the claim can be adjudicated. 

29. Entitlement to service connection for carpal tunnel syndrome of the left upper extremity is remanded. 

30. Entitlement to service connection for carpal tunnel syndrome of the right upper extremity is remanded. 

At the outset, the Board distinguishes the Veteran’s claim for service connection for carpal tunnel syndrome from his service-connected right cubital tunnel syndrome and radiculopathy of the upper right extremity. These claims were granted in an April 2020 rating decision. This claim is strictly for carpal tunnel syndrome.

The Veteran’s claim filed on November 17, 2016 indicated that he is filing a claim for carpal tunnel syndrome secondary to bone fractures. The Veteran did not indicate whether he is filing a claim for left or right upper extremity carpal tunnel. It is noteworthy that in an October 2017 statement, the Veteran contended that he has carpal tunnel in in both “hand and wrist.” 

In March 2020 the Veteran filed a claim specifically for “right carpal tunnel syndrome.” The AOJ has not adjudicated that claim for right carpal tunnel syndrome, but instead (1) granted service connection for right cubital tunnel syndrome and (2) readjudicated the claim for generic carpal tunnel syndrome in the April 2020 SOC. Because the SOC did not specify which extremity was affected by the claimed carpal tunnel syndrome when adjudicating the Veteran’s general claim for service connection for carpal tunnel syndrome, the AOJ implicitly denied service connection for carpal tunnel syndrome for both right and left upper extremities. 

The Veteran submitted a statement in March 2020 titled “Endoscopic Carpal Tunnel Release and Ulnar Nerve Decompression or Transposition” that state that the Veteran is diagnosed with carpal tunnel syndrome without specifying which extremity is affected. The Veteran was scheduled for surgery in April 2020. The record does not have the Veteran’s complete medical records from Kansas City Bone & Joint Clinic, which are relevant to determine whether the Veteran has carpal tunnel syndrome in both upper extremities. Therefore, the records should be obtained on remand.   

The Veteran also submitted a statement from Dr. S.G.E. dated February 2020 that states “it is more likely than not that his carpal tunnel syndrome [is] from his previous right-hand injuries from 2008.” This opinion does not provide a rationale. 

The AOJ obtained an opinion in April 2020 asking if the Veteran’s carpal tunnel syndrome is related to the Veteran’s right-hand boxer fracture or his right wrist tendinitis. The examiner concluded that the Veteran’s carpal tunnel syndrome of the right upper extremity is less likely than not related to his right-hand boxer fracture and provided a rationale. The opinion, however, did not address whether the Veteran’s service-connected condition aggravated his carpal tunnel syndrome. Thus, an opinion is still needed to address aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). 

The examiner was not asked to address whether the Veteran had a diagnosis of left carpal tunnel. However, the Board does not find sufficient evidence ot resolve this question and requests that the diagnosis be ruled in or out upon remand. The examiner should also address the Veteran’s assertion of carpal tunnel syndrome secondary to left wrist fracture. 

31. Entitlement to service connection for right eye disability, to include conjunctivitis, cyst (benign growth), hemorrhage, and ulcer condition is remanded.

The Veteran underwent a VA examination in October 2017. The examination report shows that the examiner answered yes when asked if the Veteran has eye condition and checked the box for conjunctivitis and other conjunctival conditions, such as pinguecula and dry eyes. The examiner opined that the episode of conjunctivitis and corneal marginal infiltrate noted in service have completely resolved without any residuals. The examiner’s opinion does not apply the appropriate legal standard (at least as likely as not). Nor is it supported by adequate rationale. For these reasons, the Board finds that a remand to obtain an adequate medical opinion is necessary before the claim can be adjudicated. 

32. Entitlement to service connection for skin condition, to include cyst and/or neoplasm, is remanded. 

The Veteran’s STR reflects that the Veteran had a mole removed in May 1999 and the final diagnosis was intradermal melanocytic nevus.  A VA skin examination from April 2017 did not diagnose a skin condition other than herpes. A DBQ submitted in November 2017 reflects that the Veteran has a diagnosis of dysplastic nevi, initially diagnosed in 1999, while the Veteran was in active service. That examiner did not provide a nexus opinion supported by complete rationale. In a statement filed in June 2020, the Veteran’s representative asserted that the Veteran has benign skin neoplasm. The Board finds that it is necessary to clarify if the Veteran has a current disability of a skin condition other than the already service-connected herpes. The Board cannot make a fully informed decision on the issue of service connection for skin condition because no VA examiner has opined whether the Veteran has a skin condition other than herpes that is related to his military service. A remand is warranted to provide an examination.

33. Entitlement to an initial compensable rating for scar on the left wrist is remanded.

The Veteran contends that a compensable rating is warranted for his left wrist scar, which is currently assigned a noncompensable rating under DC 7802. 

In July 2020 the Board notified the Veteran that additional relevant evidence had been associated with the record following the SOC. Specifically, an April 2020 VA examination addressed the left wrist (elbow) scar and found it not to be painful or unstable. However, no supplemental statement of the case (SSOC) was issued readjudicating this issue.

In a July 2020 response, the Veteran explicitly did not waive AOJ review of the evidence and asked that this issue be returned to the AOJ for consideration of evidence submitted after the SOC.

The Board remands this issue for readjudication in an SSOC.

34. For the appeal period after August 9, 2019, entitlement to an initial rating higher than 60 percent for left wrist nerve paralysis/nerve damage is remanded. 

The Veteran asserts that a rating in excess of 60 percent is warranted for left wrist nerve paralysis/nerve damage.

The AOJ issued SOC adjudicating this claim in August 2019. Since that time, an April 2020 VA examination of the peripheral nerves focused on his separate carpal and cubital tunnel syndrome disability claims was obtained. That examination provides relevant information regarding the severity of the Veteran’s left wrist nerve paralysis/nerve damage. There was no SSOC issued readjudicating this issue in light of the April 2020 VA examination, and the Veteran did not waive AOJ consideration. Therefore, the Board remands this issue for readjudication in an SSOC. 

35. Entitlement to service connection for scars of the extremities and trunk is remanded.  

A February 2020 VA scar examination is relevant to the Veteran’s claim for service connection for scars on the extremities and trunk. The SOC regarding this disability was issued in August 2019. The Veteran has not waived AOJ review of this examination as it relates to this issue.  Accordingly, a remand for the AOJ to consider the February 2020 VA examination is necessary before this claim can be adjudicated. 

36. Entitlement to an effective date earlier than August 13, 2018 for service connection for left wrist scar is remanded.  

37. Entitlement to an effective date earlier than November 27, 2016 for service connection for herpes is remanded. 

38. Entitlement to service connection for scars to head, face, or neck as secondary to migraine is remanded. 

In May 2017, the AOJ granted service connection for herpes. In May 2018, the Veteran filed an NOD disagreeing with the effective date assigned.

Service connection for left wrist scar was granted by way of the December 2018 rating decision and the Veteran filed an NOD disagreeing with the effective date assigned in December 2019.

The Veteran filed a NOD with the denial of the claim for service connection for scars of the head, face, or neck secondary to migraine in September 2018.

However, an SOC has not yet been issued readjudicating any of these three issues. Therefore, a remand is required for the AOJ to issue a SOC adjudicating these claims.  38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).

The matters are REMANDED for the following action:

1.  Conduct the appropriate development necessary to verify the Veteran’s periods of service in the Reserves, both ACDUTRA and INACDUTRA, to include obtaining any personnel and medical records associated with those periods of service. A memorandum identifying all periods of Reserve service should be drafted and added to the claims file.

2. Schedule the Veteran for a TBI examination with a physiatrist, psychiatrist, neurosurgeon or neurologist. The examiner should review all relevant evidence in the claims file. The examiner should answer the following questions:

(a.) Has a diagnosis of TBI been present at any time since October 2017?

(b.) Have residuals of a TBI been present at any time since October 2017? If yes, the residuals must be identified.

(c.) Is it at least as likely as not that any diagnosed TBI or TBI residuals are related to service?

(d.) In the alternative, is it at least as likely as not that any diagnosed TBI or TBI residuals are caused or aggravated by migraines?

The examiner is asked to provide a complete explanation for all opinions rendered, citing to the medical record when necessary to support the conclusion reached.

3. After completion of directive #1, forward the claims file to an appropriate VA clinician to obtain a medical opinion regarding the claimed respiratory condition, to include allergic rhinitis. An in-person examination is not required unless the clinician determines it is necessary. The clinician is asked to review all relevant evidence in the claims file. The clinician should then address the following: 

(a). Is the Veteran’s respiratory condition, to include allergic rhinitis, at least as likely as not (a 50 percent or greater probability) related to service, to include his period of ACDUTRA?

The examiner is asked to consider the Veteran’s correspondence received in January 2008 and comment on his contention that he was hospitalized for severe respiratory infection and that his respiratory condition was aggravated by his exposure to burn pits during Operation Northern Watch in Turkey. 

In general, comment on the Veteran’s description of his in-service symptoms. If there is any medical reason to accept or reject the proposition that the reported symptoms in service represented the onset of the Veteran’s current disability, this should be noted. Stated another way, do the reports about the Veteran’s symptoms align with how the current respiratory condition is known to develop?

The examiner is asked to provide a complete explanation for all opinions rendered, citing to the medical record when necessary to support the conclusion reached. If an opinion cannot be provided without resorting to speculation, the examiner must state why this is the case. 

4. After completion of directives #1 and # 3, forward the claims file to an appropriate VA clinician to obtain a medical opinion regarding the claimed sleep apnea. An in-person examination is not required unless the clinician determines it is necessary. The clinician is asked to review all relevant evidence in the claims file. The clinician should then address the following: 

(a). Is the Veteran’s obstructive sleep apnea at least as likely as not (a 50 percent or greater probability) related to service, to include his period of ACDUTRA?

In providing the requested opinion, consider and comment on the Veteran’s January 2018 statement that his sleep apnea is related to exposure to burn pits during Operation Northern Watch, Incirlik, Turkey from 2000-2002 and his contention that sleep apnea was aggravated by the use of gas mask in service. 

The examiner should also consider and comment on the November 2017 statements from the Veteran’s girlfriend and roommate describing the Veteran’s in-service symptoms. If there is any medical reason to accept or reject the proposition that the reported symptoms in service represented the onset of the Veteran’s current disability, this should be noted.  Stated another way, do the reports about the Veteran’s symptoms align with how sleep apnea is known to develop?

(b) Is the Veteran’s sleep apnea at least as likely as not proximately due to his GI disability?

(c) Is the Veteran’s sleep apnea at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his GI disability?

(d) Is the Veteran’s obstructive sleep apnea at least as likely as not (a 50 percent or greater probability) caused by a respiratory condition, to include allergic rhinitis? 

(e) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s obstructive sleep apnea is aggravated (worsened beyond its natural progression) by a respiratory condition, to include allergic rhinitis? 

The examiner is asked to provide a complete explanation for all opinions rendered, citing to the medical record when necessary to support the conclusion reached. If an opinion cannot be provided without resorting to speculation, the examiner must state why this is the case. 

5. After completion of directive #1, forward the claims file to an appropriate VA clinician to obtain a medical opinion regarding the claimed bilateral shoulder disability. An in-person examination is not required unless the clinician determines it is necessary. After reviewing the claims file in its entirety, the examiner should answer the following question:

a)	Is a right shoulder disability at least as likely as not related to service, including the general wear and tear due to bi-weekly exercise in the reserves?

b)	Is a left shoulder disability at least as likely as not related to service, including the general wear and tear due to bi-weekly exercise in the reserves?

In providing the requested opinions, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms.  If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted.  Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible?

The examiner is asked to provide a complete explanation for all opinions rendered, citing to the medical record when necessary to support the conclusion reached. If an opinion cannot be provided without resorting to speculation, the examiner must state why this is the case.

6. After completion of directive #1, forward the claims file to the April 2020 VA examiner. If that examiner is unavailable, request the opinion from another qualified clinician. An in-person examination is not required unless the clinician determines it is necessary. After reviewing the claims file in its entirety, the examiner should answer the following questions:

(a) Did the Veteran’s migraine clearly and unmistakably (undebatably) preexist service?

(b) If the answer to (a) is yes: is it clear and unmistakable (undebatable) that it did NOT worsen beyond its natural progression during service?

(c) If the answer to (b) is no, are the Veteran’s current migraines at least as likely as not (a 50 percent or greater probability) related to his military service? 

Specifically, the examiner must address whether the Veteran’s migraines at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) were noted during service with continuity of the same symptomatology since service.

The examiner’s opinion should address the Veteran’s report of headaches in May and July 2000, and diagnosis of migraine in 1998.

The examiner must provide any and all opinions as to etiology in the form of a probability and must provide a complete rationale for any opinion expressed.

7. Ask the Veteran to complete a VA Form 21-4142 for Kansas City Bone & Joint Clinic. Make two requests for the authorized records from Kansas City Bone & Joint Clinic unless it is clear after the first request that a second request would be futile.

8. After completion of directives #1 and #7, schedule the Veteran for a VA examination for his claimed carpal tunnel syndrome.  The examiner must review the claims file. An in-person examination is not required unless deemed necessary by the examiner.

The examiner is asked to provide a response to the following:

(a) Has a diagnosis of right or left carpal tunnel syndrome been present at any time since November 2016?

(b) If yes, is the Veteran’s carpal tunnel syndrome at least as likely as not (a 50 percent or greater probability) caused by service-connected left wrist fracture?

(c) If yes, is it at least as likely as not (50 percent or greater probability) that the Veteran’s carpal tunnel syndrome is aggravated (worsened beyond its natural progression) by left wrist fracture? 

(d) If yes, is it at least as likely as not (50 percent or greater probability) that the Veteran’s carpal tunnel syndrome is aggravated (worsened beyond its natural progression) by right hand boxer fracture? 

In providing the requested opinions, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms.  If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted.  Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible?

Provide a rationale to support the opinion.  

9. After completion of directive #1, forward the claims file to an appropriate VA clinician to obtain a medical opinion regarding the claimed right eye disability. An in-person examination is not required unless the clinician determines it is necessary. The clinician is asked to review all relevant evidence in the claims file. The clinician should then address the following: 

(a.) Identify diagnoses of the right eye that have been present at any time since October 2017.

(b.) For each identified diagnosis, is it at least as likely as not (a 50 percent or greater probability) related to his military service, to include conjunctivitis and corneal marginal infiltrate diagnosed in service?

The examiner should consider and comment on the Veteran’s contention that his current condition is related to corneal ulcer, ocular cavity injury in service, or use of ciprofloxacin. 

The examiner is asked to provide a complete explanation for all opinions rendered, citing to the medical record when necessary to support the conclusion reached. If an opinion cannot be provided without resorting to speculation, the examiner must state why this is the case. 

10. After completion of directive #1, schedule the Veteran for a VA examination for his claimed skin condition. The examiner must review the claims file. The examiner is asked to provide a response to the following:

(a) Identify all skin diagnoses distinct from herpes, that have been present at any time since November 27, 2016. Please specifically address the claimed neoplasm and dysplastic nevi.

(b) For each identified diagnosis, is it at least as likely as not related to service, including the in-service diagnosis of dysplastic nevi and mole removal in May 1999?

Provide a rationale to support the opinions.  

11. Issue an SSOC readjudicating the issues of (1) entitlement to initial compensable rating for left wrist scar (actually located on the left elbow), (2) entitlement to an initial rating higher than 60 percent for left wrist nerve paralysis/nerve damage for the appeal period after August 9, 2019, and (3) entitlement to service connection for scars of the extremities and trunk. 

12. Send the Veteran and his representative an SOC that addresses the issues of entitlement to (1) an earlier effective date for service connection of left wrist scar, (2) an earlier effective date for service connection of herpes, and (3) service connection for scars to the head, face, or neck as secondary to migraine. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration.

13. After the above development has been completed, readjudicate the inextricably intertwined issue of service connection for scar tissue on the left rotator cuff. 

 

LAURA E. COLLINS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	S. Solomon

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.