Citation Nr: 21013917 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-42 647A DATE: March 10, 2021 ORDER Entitlement to an initial compensable rating prior to May 10, 2019, and to an initial rating greater than 10 percent thereafter, for scar on head status post injury with laceration is denied. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for an eye disability is remanded. FINDINGS OF FACT 1. The record evidence shows that, prior to May 10, 2019, the Veteran’s scar on head status post injury with laceration was not manifested by at least one characteristic of disfigurement and was not painful or unstable. 2. The record evidence shows that, effective May 10, 2019, the Veteran’s scar on head status post injury with laceration was painful but not unstable and not manifested by at least one characteristic of disfigurement. CONCLUSION OF LAW The criteria for an initial compensable rating prior to May 10, 2019, and to an initial rating greater than 10 percent thereafter, for scar on head status post injury with laceration have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Code (DC) 7800 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1977 to July 1981. This appeal has a long procedural history. It comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Board remanded the currently appealed claims to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. The Board directed that the AOJ readjudicate the currently appealed claims and issue a Supplemental Statement of the Case (SSOC). The AOJ subsequently readjudicated the claims and issued an SSOC in October 2020. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). Entitlement to an initial compensable rating prior to May 10, 2019, and to an initial rating greater than 10 percent thereafter, for scar on head status post injury with laceration The Board finds that prior to May 10, 2019, the criteria for an initial compensable rating for the Veteran’s service-connected scar on head, status post injury with laceration are not met. See 38 C.F.R. § 4.118, DC 7800. In this regard, the Board notes that the objective evidence did not document at least one character of disfigurement noted in DC 7800 or that the scar was painful or unstable such that an initial compensable 10 percent rating would be warranted under DC 7804. Indeed, a September 2011 VA examination essentially indicates that the scar is asymptomatic and measures well under five inches in length and one-quarter inch wide at widest part which is required for a compensable rating under DC 7800. Id. The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to an initial compensable rating prior to May 10, 2019, for his service-connected scar on head status post injury with laceration. As such, the Board finds that an initial compensable rating is not warranted prior to May 10, 2019, for the Veteran’s service-connected scar on head status post injury with laceration. The Board also finds that the criteria for an initial rating greater than 10 percent effective May 10, 2019, is not warranted for the Veteran’s service-connected scar on head, status post injury with laceration. Id. The Board acknowledges the May 10, 2019 VA examination which noted the scar was painful. This VA examination report does not indicate that any characteristic of disfigurement such that a higher rating is warranted under DC 7800, however. Id. There are no objective findings contrary to the VA examination report. The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to an initial rating greater than 10 percent effective May 10, 2019, for his service-connected scar on head status post injury with laceration. Thus, the Board finds that an initial rating greater than 10 percent effective May 10, 2019, is not warranted for the service-connected scar on head status post injury with laceration. REASONS FOR REMAND Entitlement to service connection for lumbar spine disability and for an eye disability The Veteran contends that he has a lumbar spine disability that is related to service, specifically as a result of an injury to the back after a fire extinguisher fell on his head resulting in a fall. The Board observes that the Veteran’s service treatment records are absent complaints of or finding related to a lumbar spine disability. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Barr v. Nicholson, 21 Vet. App. 303 (2007). As a lay person, the Veteran is competent to attest to injuring his back from a fire extinguisher falling on his head resulting in a fall. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, he is competent to report injuring his neck during service. He also has submitted statements from other individuals who have corroborated his report of the in-service back injury as well as the continuity of back symptomatology following separation from service. Moreover, the Veteran currently is being treated for spinal stenosis. There is no medical opinion of record which indicates whether the Veteran has a lumbar spine disability related to service. Accordingly, the Board finds that, on remand, the AOJ should obtain this opinion. With respect to the Veteran’s claim of service connection for an eye disability, the Veteran contends that he has an eye disability that is related to service, specifically as a result of an injury he sustained in 1980 where he struck his head on a hard surface. The Veteran’s service treatment records document the reported incident in 1980, although that the remainder of the service treatment records show no complaints of or treatment for an eye disability. This is not necessarily fatal to this claim. See Buchanan, 451 F.3d at 1337, and Barr, 21 Vet. App. at 303. The Veteran was provided a VA examination in August 2011 to determine the etiology of the Veteran’s eye disability. After examination of the Veteran and consideration of his medical history, the VA examiner diagnosed dermatochalasis and cataracts. Although the examiner provided a negative nexus opinion for the dermatochalasis, he did not provide an opinion as to the etiology of the Veteran’s cataracts. There is no medical opinion of record that addresses the etiology of the Veteran’s cataracts. Thus, the Board finds that, on remand, the AOJ should obtain an addendum opinion on this matter. The AOJ also should obtain the Veteran’s updated treatment records. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran’s updated treatment records. 2. Forward the claims file and a copy of this REMAND to an appropriate clinician for an opinion concerning the nature and etiology of the Veteran’s lumbar spine disability. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a lumbar spine disability, if present, is related to active service, including the Veteran’s report of sustaining a back injury from a fall after a fire extinguisher hit his head. A rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician is asked to explain why this is so. The clinician is advised that the Veteran is competent to report injuring his back from a fall after a fire extinguisher hit his head during service. The clinician also is advised that the Veteran is competent to report experiencing a continuity of back symptomatology since service. The clinician finally is advised that the lack of contemporaneous records documenting complaints of and treatment for an in-service back injury and/or a lumbar spine disability, alone, is insufficient rationale for a medical nexus opinion. 3. Forward the claims file and a copy of this REMAND to an appropriate clinician for an opinion concerning the nature and etiology of the Veteran’s cataracts. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that cataracts, if present, are related to active service, including his report of sustaining an in-service head injury. A rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician should explain why this is so. The clinician is advised that the Veteran is competent to report that he sustained an in-service head injury. The clinician also is advised that the lack of contemporaneous records documenting complaints of and treatment for a head injury and/or cataracts, alone, is insufficient rationale for a medical nexus opinion. 4. Readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Nadia Kamal, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.