Citation Nr: 21025769 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-42 390 DATE: April 28, 2021 ORDER Entitlement to a 10 percent evaluation for scar, residual Z-plasty, left wrist is granted. REMANDED Entitlement to an initial evaluation in excess of 50 percent for sleep apnea with bronchial asthma is remanded. Entitlement to service connection for tenosynovitis right hand is remanded. FINDING OF FACT The Veteran has one scar that is painful. CONCLUSION OF LAW The criteria for entitlement to an initial 10 percent evaluation for scar, residual Z-plasty, left wrist have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804-7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1987 to October 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision. The Veteran did not request a Board hearing. In May 2019, the Board remanded the issues for further development. The case has since been returned to the Board for appellate review. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to a veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A Veteran’s entire history is to be considered when making disability evaluations. See 38 C.F.R. 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the issue involves the assignment of a disability rating following the initial award of service connection for that disability, as is the case here, the entire history of the disability must be considered, and separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. 1. Entitlement to an initial compensable evaluation for scar, residual Z-plasty, left wrist The Veteran contends that he is entitled to a higher rating because his scar on his left wrist is painful to touch. The Veteran’s scar, residual Z-plasty (scar) is rated under Diagnostic Code 7805 for other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7805 was not changed by the August 13, 2018, amendments. Diagnostic Code 7805 instructs that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate Diagnostic Code. The Board finds that the preponderance of the evidence is against the assignment of a compensable rating for the Veteran’s scar under Diagnostic Code 7805 as there are no other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04. The May 2011 private examination notes the Veteran has a 3.5 centimeters long scar over the left wrist. There are no soft tissue defects. The Veteran relates that his scar is 4.5 centimeters long and painful when touched or when pressure is applied for a period of time. See December 2014 and May 2015 Statements in Support of Claim. Upon VA examination in August 2015, the examiner noted the Veteran’s scar is not painful and not unstable. It is not due to burns. The scar is 4 centimeters long. A September 2016 private disability benefits questionnaire (DBQ) notes the Veteran’s scar on the left wrist is painful, but not unstable. The scar is 4.5 centimeters long. An October 2016 VA examination reflects the Veteran’s scar is not painful or unstable. It does not impact the Veteran’s daily duties. The scar is 2 centimeters long. The November 2016 VA examination shows the Veteran’s scar is not painful or unstable. The scar is 4 centimeters long with no tissue damage. The examiner later noted the Veteran’s scar is painful. In January 2021 correspondence, the Veteran states that he has had pain in his scar since his surgery in 2005. The Board has also considered the other Diagnostic Codes pertaining to scars. The Board finds that the evidence warrants a 10 percent evaluation under DC 7804. Under Diagnostic Code 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating. Three or four scars that are unstable or painful scars warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. As noted above, the Veteran’s VA examinations reflect his scar is not painful or unstable. The Veteran’s statements reflect he has continued to experience pain with his scar since his surgery in 2005 and throughout the claim. The September 2016 private DBQ also reflects his scar is painful. The Veteran is competent to report observable symptoms, to include pain in his scar, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the evidence supports a 10 percent rating under DC 7804. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under Diagnostic Code 7804 because the Veteran’s scar is not manifested by three or four scars that are unstable or painful. The Veteran is service connected for one scar on the left wrist. A rating under another Diagnostic Code pertaining to scars is not warranted. The Veteran’s scar is not of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage. Although it is superficial and not associated with underlying soft tissue damage, it does not cover an area or areas of 144 square inches or greater. Therefore, Diagnostic Codes 7800 through 7802, both prior to and from August 13, 2018, are inapplicable. In conclusion, the Board finds that the preponderance of the evidence warrants a disability rating of 10 percent for scar, residual Z-plasty, left wrist. REASONS FOR REMAND 1. Entitlement to an initial evaluation in excess of 50 percent for sleep apnea with bronchial asthma is remanded. The Veteran contends that his sleep apnea with bronchial asthma should be rated separately. Alternatively, he contends that his asthma requires the use of daily oral corticosteroids and warrants an increased evaluation. See January 2021 Correspondence. The Veteran was afforded a VA examination for respiratory conditions in October 2016. In a January 2021 statement, the Veteran asserted that he takes daily oral corticosteroids for his asthma, along with seasonal bursts of prednisone to help manage his asthma. VA treatment records from September 2020 show the Veteran is prescribed prednisone to take daily by mouth for inflammation. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his sleep apnea with bronchial asthma. 2. Entitlement to service connection for tenosynovitis right hand is remanded. The Veteran contends that his tenosynovitis right hand first manifested during service. The Veteran was afforded a VA examination in November 2020. The examiner noted the Veteran has a diagnosis of right hand strain with a date of diagnosis of November 4, 2020. The examiner opined the Veteran’s tenosynovitis right hand was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the Veteran’s current examination of the right hand is normal and no tenosynovitis is found. The examiner did not consider whether the Veteran’s diagnosed right hand strain is due to the Veteran’s in-service fall on right hand and/or in-service right hand pain. Remand is necessary to obtain an addendum opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected sleep apnea and asthma. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner is asked to identify all medications, and courses of systemic (oral or parenteral) corticosteroids from 2016 to Present. 2. Obtain an addendum opinion to the November 2020 VA examination by an appropriate clinician to determine the nature and etiology of a right hand condition. The entire file must be made available to the examiner. The examiner must opine whether the Veteran’s right hand strain, or any other right hand disability, is at least as likely as not related to an in-service injury, event, or disease, to include a fall on the right hand or in-service right hand and wrist pain. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexia E. Palacios-Peters, 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.