Citation Nr: 21014383 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 15-44 939 DATE: March 12, 2021 ORDER Entitlement to service connection for flash burn residuals, diagnosed as facial discoloration, is granted. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for frostbite of the bilateral fingers is remanded. Entitlement to service connection for frostbite of the bilateral toes is remanded. Entitlement to service connection for tuberculosis is remanded. FINDING OF FACT The Veteran’s facial discoloration is attributable to a burn injury during service. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of flash burns, diagnosed as a burn scar of the face, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1984 to December 1985, including service in the Republic of Korea. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The appeal was remanded for further development in December 2018. Service Connection 1. Entitlement to service connection for flash burn residuals diagnosed as burn scar of the face, is granted. Service connection may be established for disability resulting from injury or disease incurred during active service. 38 U.S.C. § 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection the evidence must show: (1) the existence of a present disability; (2) in- service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran asserts that her residuals of flash burns are due to receiving burns to her face, eyebrows, and eyelashes while lighting a heating drip to heat water during service. See December 2011 VA Form 21-4138 and February 2014 Notice of Disagreement (NOD). To this end, she maintains that she has abnormal eye sensations and discoloration to her face. See August 2013 and October 2019 VA examination reports. Here, the October 2019 VA examiner diagnosed discoloration all over her face, recently darkened, that was described by the Veteran as a residual of a burn injury. See October 2019 VA examination report. Additionally, the Veteran’s service treatment records (STRs) confirm a flash burn injury to the Veteran’s face after trying to light a stove. See January1985 STRs. Lastly, the October 2019 VA examiner acknowledged the Veteran’s report that she sustained a burn injury during service. That examiner did not specifically relate the Veteran’s facial scarring to the burn in a formal nexus statement, but one is not needed here, as the Veteran is competent to report facial discoloration and the onset of the same during service, and the Board finds her report credible. In sum, based on this opinion and the other medical and lay evidence of record, the Board finds that the Veteran’s facial discoloration was incurred in service since it has been associated with her burn injury therein, thus satisfying all the elements of service connection. The Board notes the August 2013 VA examiner found no current diagnosis for burn scars to the head, face, or neck; however, this finding is outweighed by the October 2019 VA examiner’s findings and diagnosis and discoloration (facial scarring) is a readily observable symptom that is capable of lay observation. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Thus, the Board finds a current diagnosis is present as outlined above. Lastly, the Board notes that an October 2019 VA examiner noted diagnoses for other potential residuals of flash burns, specifically eye disabilities including blepharitis, meibomianitis, dermatochalasis, and dry eyes bilaterally. STRs note, as indicated above, that the Veteran sustained flash burns to the face during service. Thus, elements one and two are also met for the eye diagnoses. See October 2019 VA examination report and January 1985 STRs. Regarding, the final element, nexus, however, the only competent opinion of record is against the claim. Specifically, the October 2019 VA examiner, after a thorough review of the claims file, acknowledged the Veteran experienced flash burns while lighting a stove during service. However, he found the STRs indicated the injury was superficial and Veteran was treated with topical medications and returned to duty the following day. He noted that no other residual complications, including eye symptomatology, were found. To this end, he noted the Veteran’s current eye diagnoses and concluded that, notwithstanding the Veteran’s reports of symptomology and objective observation, the Veteran’s current eye conditions were less likely than not proximately related to the flash burns occurred while in service. There is no competent opinion to contrary. To the extent the Veteran attributes her eye disabilities to service, her opinion is not competent. Although the Veteran is competent to report on readily observable symptoms, she is not competent to determine the nature or etiology of blepharitis, meibomianitis, dermatochalasis, and dry eyes. As a lay person, she has not been shown to be capable of making such conclusions on inherently medical questions. Jandreau, 492 F. 3d 1372. In this regard, the Board acknowledges that the Veteran was a medical specialist in service; however, she does not assert, and the evidence of record does not otherwise reflect, that she is competent to assess the etiology of eye disorders. See November 2018 Appellant’s Brief (noting the Veteran’s experience as a medic and that she is competent to attest to cold weather problems, back and left knee issues; notably, eye disorders are excluded). Thus, service connection for the above diagnosed eye disabilities as residuals of an in-service burn injury is not warranted. 38 C.F.R. §§ 3.102, 3.303(a). Accordingly, only service connection for facial discoloration as a residual of an in-service burn injury is warranted. 38 C.F.R. §§ 3.102, 3.303(a). REASONS FOR REMAND 2. Entitlement to service connection for a lumbar spine disability is remanded. 3. Entitlement to service connection for a left knee disability is remanded. 4. Entitlement to service connection for a right ankle disability is remanded. 5. Entitlement to service connection for a left ankle disability is remanded. Pursuant to the Board’s December 2018 remand directives, the Veteran was afforded VA back, knee, and ankle examinations in November 2019 and July 2020. The Board asked the examiner to opine on: (a) Whether it is at least as likely as not(50 percent probability or greater) that any current disability of the lumbar spine, left knee, and right and left ankle arose during service or is otherwise related to service. (b.) Whether it is at least as likely as not (50 percent probability or greater) that any current disability of the lumbar spine, left knee, and right and left ankle was caused by the Veteran’s service-connected foot disabilities (pes planus and status post arthroplasty fifth toe bilateral feet with absent fifth middle phalanx)? (c). If not caused by the service-connected foot disabilities, is it at least as likely as not(50 percent probability or greater) that any current disability of the lumbar spine, left knee, and right and left ankle is worsened beyond natural progression (aggravated) by his service-connected foot disabilities? If the examiner finds that the Veteran’s lumbar spine disability was aggravated by his service-connected foot disabilities, the examiner should attempt to quantify the level of aggravation beyond the baseline level of the lumbar spine, left knee, and right and left ankle disabilities. However, the examiners’ opinions on direct service connection for her back, left knee, and bilateral ankle disabilities relied on lack of documentation of complaints or injuries in her STRs and did not address her lay statements regarding a motor vehicle accident during service. Thus, these opinions are inadequate. Additionally, regarding secondary service connection, the examiners failed to address the aggravation prong, as specifically requested by the Board. Thus, for these reasons, an addendum opinion is needed from a different examiner on remand to ensure substantial compliance with the Board’s December 2018 remand directives and to adequately address direct and secondary service connection. Stegall v. West, 11 Vet. App. 268 (1998). 6. Entitlement to service connection for frostbite of the bilateral fingers is remanded. 7. Entitlement to service connection for frostbite of the bilateral toes is remanded. 8. Entitlement to service connection for tuberculosis is remanded. Pursuant to the Board’s December 2018 remand directives, the Veteran was afforded a VA examination in November 2019. The Board asked the examiner to opine on whether it is at least as likely as not (50 percent probability or greater) that the Veteran has any residuals of her reported in-service frostbite of the bilateral fingers and toes. In so opining, the examiner should address the September 25, 2014 VA treatment record noting neuritis / neuralgia of the bilateral lower extremities “possible nerve injury 2nd frostbite.” However, the examiner failed to address the September 2014 VA treatment record when rendering a negative opinion regarding a current diagnosis, as specifically requested by the Board. Thus, for this reason, an addendum opinion is needed from a different examiner on remand to ensure substantial compliance with the Board’s December 2018 remand directives. Stegall, 11 Vet. App. 268. Any outstanding treatment records should also be secured. In this regard, as the evidence of record does not show a current diagnosis of tuberculosis, action on this claim is deferred pending this development. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant treatment records. 3. Obtain an addendum opinion from a VA examiner other than the November 2019 and July 2020 VA examiners to determine the etiology of the Veteran’s back, left knee, and bilateral ankle disabilities. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The examiner should address the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that diagnosed lumbosacral strain, left knee strain, and bilateral ankle sprain (see November 2019 and July 2020 VA examination reports) was incurred during service or is otherwise related to service, to include as a result of a conceded injury to her back, left knee, and bilateral ankles during an ambulance accident. (b) Please provide a discussion of whether a nexus between lumbosacral strain, left knee strain, and bilateral ankle sprain and service is “medically plausible,” assuming as true the Veteran’s statements regarding injuries sustained during an ambulance accident, despite any documentation of the same. See December 2011 VA Form 21-4138, February 2014 NOD, September 2014 Correspondence and October 2020 Appellate Brief. Otherwise, the opinion will be rendered inadequate. (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected bilateral pes planus and/or status post arthroplasty fifth toe bilateral feet with absent fifth middle phalanx planus caused her to become obese/gain weight? (d) If so, is it at least as likely as not that obesity/weight gain was a “substantial factor” in causing a lumbosacral strain, left knee strain, and/or bilateral ankle sprain? (e) If so, is it at least as likely as not that lumbosacral strain, left knee strain, and/or bilateral ankle sprain would not have occurred but for the obesity/weight gain caused by service-connected bilateral pes planus and/or status post arthroplasty fifth toe bilateral feet with absent fifth middle phalanx planus? (f) If the answer to questions (a), (c), (d), and (e) is no, then is it at least as likely as not(50 percent probability or greater) that lumbosacral strain, left knee strain, and bilateral ankle sprain are (i) proximately due to service-connected bilateral pes planus and/or status post arthroplasty fifth toe bilateral feet with absent fifth middle phalanx planus or (ii) have been aggravated (worsened) by service-connected bilateral pes planus and/or status post arthroplasty fifth toe bilateral feet with absent fifth middle phalanx. In arriving at the opinion on lumbosacral strain, left knee strain, and bilateral ankle sprain and weight gain/obesity, inform the examiner that all lay evidence must be considered. Inform the examiner further that, under applicable legislation and VA requirements, obesity is not a disease or disability, but it may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis. To determine whether any weight gain or obesity is an “intermediate step” between either the Veteran’s service-connected bilateral pes planus and/or status post arthroplasty fifth toe bilateral feet with absent fifth middle phalanx and lumbosacral strain, left knee strain, and bilateral ankle sprain, the examiner should fully answer the above questions. The examiner should also address the December 9, 2014 VA treatment record indicating that the Veteran’s Remeron prescription was discontinued, in part, due to the risk of obesity. In addressing question (f), the examiner is advised that two separate opinions are necessary for each disability: one for proximate causation and one for aggravation. The examiner should note that primary disability (bilateral pes planus and/or status post arthroplasty fifth toe bilateral feet with absent fifth middle phalanx planus) need not be service-connected, or even diagnosed, when the secondary disability (lumbosacral strain, left knee strain, and bilateral ankle sprain) is incurred and reliance on this fact will render the opinion inadequate. A comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Schedule the Veteran for an appropriate VA examination with an examiner other than the November 2019 examiner to determine the nature and etiology of any frostbite residuals of the bilateral fingers and toes. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not(50 percent probability or greater) that the Veteran has any residuals of her reported in-service frostbite of the bilateral fingers and toes. In so opining, the examiner is instructed that cold weather exposure is conceded and the examiner should address the September 25, 2014 VA treatment record noting neuritis / neuralgia of the bilateral lower extremities “possible nerve injury 2nd frostbite. A comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Asante, Ruby 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.