Citation Nr: 21015965 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-49 975 DATE: March 18, 2021 ORDER Entitlement to a compensable rating prior to August 26, 2019 for service-connected right-hand laceration scar is denied. Entitlement to a rating higher than 10 percent beginning August 26, 2019 for service-connected right-hand laceration scar is denied. REMANDED Entitlement to service connection for a right-hand disability, to include carpal tunnel is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder, secondary to military sexual trauma (MST) is remanded. FINDINGS OF FACT 1. For the period prior to August 26, 2019, the Veteran’s right-hand scars were neither painful nor unstable. 2. For the period beginning August 26, 2019, the Veteran’s right-hand scars were manifested by pain. CONCLUSIONS OF LAW 1. For the period prior to August 26, 2019, the criteria for a compensable rating for right-hand scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118 Diagnostic Code 7804. 2. For the period beginning August 26, 2019, the criteria for a rating higher than 10 percent for right-hand scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118 Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Coast Guard from November 1978 to November 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO). This appeal was previously before the Board in March 2020, at which time, it was remanded for further evidentiary development. Such development has since been completed. Regarding the issues of entitlement to increased staged ratings for the right-hand scar, the Board finds that the RO substantially complied with the remand instructions, and appellate adjudication may proceed without prejudice to the Veteran. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating for Scar Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). During the appeal period, the Veteran’s right-hand laceration has been assigned staged ratings pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7804. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation. Three or four scars that are unstable or painful warrant a 20 percent evaluation. Five or more scars that are unstable or painful warrant a 30 percent evaluation. Note (2) for that code provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Turning to the facts of the case, at the August 2013 VA examination, the Veteran described having shooting numbness from the web of her right thumb all the way to her shoulder. Upon examination, both scars were linear; one measured 2.1 cm. and the other was 1.3 cm. The examiner attributed the Veteran’s numbness to her diagnosed carpal tunnel syndrome and found that the Veteran’s scars were neither painful nor unstable. At the August 2019 VA examination, the Veteran reported that her right-hand scars were painful at times. Upon examination, while the linear scars were painful and tender, they were not unstable. The first scar was 5.5 cm. long and the second was 2 cm. long. The examiner found that the scars did not cause any limitation of function. Review of the Veteran’s treatment records during the appeal period reflect no complaints, treatments, or assertions regarding the Veteran’s right-hand scars. To that end, the Veteran often sought treatment for symptoms related to her right hand, which treating physicians attributed to her carpal tunnel. Throughout the appeal period, neither the Veteran nor the Veteran’s treating physicians indicated any symptomatology related to the Veteran’s scars. Upon consideration of the evidence, the Board finds that for the period prior to August 26, 2019, a compensable rating is not warranted for the Veteran’s right-hand scars. On this record, the most probative evidence, namely the August 2013 VA examination, reflect that the Veteran’s scars were neither painful nor unstable. Her neurological symptoms were attributed to her unrelated carpal tunnel, rather than her service-connected right-hand scars. Ultimately, the Veteran’s scars are not shown to be unstable or painful and are less than 6 square inches in size. As such, prior to August 26, 2019, the scars are not of the size and/or severity to warrant a compensable rating under Diagnostic Codes 7801-7804. For the period beginning August 26, 2019, the Board finds that the Veteran’s right-hand scars have not shown to be of the severity and/or of size to warrant a rating higher than 10 percent under the rating criteria pertaining to scars. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. To that end, three or four scars that are unstable or painful (DC 7804) are not shown by the evidence. Furthermore, a scar in an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm) is also not shown by the evidence (DC 7801). The Board acknowledges the Veteran’s assertions that her disability is more severe than evaluated. The Veteran is competent to report her symptoms and has presented credible testimony. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has also considered the lay statements of record which discuss the Veteran’s functional limitations. The Board finds, however, that the more probative evidence is that prepared by neutral skilled professionals, and such evidence demonstrates that a compensable rating is not warranted for the period prior to August 26, 2019 and a rating higher than 10 percent is not warranted thereafter. The Board cannot factually ascertain from the lay and medical evidence a specific time period prior to August 26, 2019 that her scar became symptomatic. Accordingly, the claims for higher staged ratings are denied. REASONS FOR REMAND While further delay is regrettable, the Board finds that remand is required to obtain adequate nexus opinions for the service connection claims. Right Hand Disability In the March 2020 remand, the Board requested an opinion regarding whether the Veteran’s right-hand disability, to include carpal tunnel, was related to her service, to include the laceration to her hand. In June 2020, the VA examiner provided a positive nexus opinion for the Veteran’s right-hand scars but did not opine as to the Veteran’s right-hand disability, to include any possible muscle, nerve, or musculoskeletal injury. Thus, remand is required to obtain a nexus opinion. Acquired Psychiatric Disorder The Veteran is seeking service connection for an acquired psychiatric disorder, secondary to MST. In the March 2020 remand, the Board conceded MST and remanded the issue for an adequate nexus opinion. At the June 2020 VA examination, the examiner diagnosed the Veteran with other specified anxiety disorder and found that the Veteran did not meet the DSM-5 criteria for PTSD. Upon consideration of the evidence, the examiner provided a negative nexus, finding that the Veteran’s acquired psychiatric disorder was not caused by or otherwise etiologically related to her period of service. In so finding, the examiner reasoned that the Veteran’s contentions of MST were not supported by the evidence of record. Specifically, the examiner noted that the “veracity of the Veteran’s self-report regarding her history including history of alleged sexual assault(s) in service is suspect.” In addition, the examiner found that the Veteran’s acquired psychiatric disorder may have pre-existed service as there was an “unknown level of possibility” that the Veteran may have had some general anxiety related symptoms prior to her entrance to service. Moreover, the examiner found that service may have temporarily, but not permanently aggravated her pre-existing acquired psychiatric disorder. The Board finds that this opinion is not adequate as it is not responsive to the question posed by the Board. As previously noted, the Board conceded MST and requested an opinion based on the conceded occurrence of MST. See March 2020 Board Remand. Here, the June 2020 examiner seemed to substitute his judgement for the Board’s as to the veracity of the Veteran’s claims. The examiner, instead of conceding the occurrence of MST, attempted to use the evidence of record to disprove the occurrence of the MST to support the negative nexus. Furthermore, while the examiner opined that the Veteran’s acquired psychiatric disorder clearly and unmistakably existed prior to service, this unsolicited conclusion is not supported by the objective evidence of record. Upon entrance, the Veteran’s psychiatric symptoms were noted as clinically normal and thus the Veteran was in sound condition upon her entrance to service. 38 U.S.C. § 1111; Jones v. Shinseki, 24 Vet. App. 40, 45 (2010). Moreover, to support the contention of pre-existence, the examiner uses speculative language to conclude that the acquired psychiatric disorder may have existed prior to service. The Board finds that this opinion is inadequate because it does not consider the conceded facts of the claim. The Board acknowledges the September 2019 private positive nexus opinion, but finds that the opinion is conclusory at best, as it appears solely based on the Veteran’s statements and not any medical testing, analysis, or principles. Thus, remand is required to obtain another opinion based on the facts found. The matters are REMANDED for the following action: 1. Forward the Veteran’s claims file to an appropriate examiner other than the June 2020 examiner to determine the nature and etiology of the Veteran’s acquired psychiatric disorder. For each acquired psychiatric disorder, the examiner should opine whether it is at least as likely as not related to her conceded in-service military sexual trauma. The need for an in-person examination is left to the discretion of the examiner. 2. Schedule the Veteran for a VA examination with an appropriate examiner to assess the nature and etiology of the Veteran’s right-hand disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including her in-service right-hand laceration/injury. In rendering a diagnosis, the examiner should determine if the Veteran manifests a possible muscle or nerve injury, in addition to a musculoskeletal disability as a result of her in-service right-hand laceration/injury. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Orie, 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.