Citation Nr: 21026067 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-49 152 DATE: April 29, 2021 ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a bilateral knee disability is denied. Entitlement to a 10 percent rating for a facial scar is granted. REMANDED Entitlement to service connection for an eye disability is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to an initial compensable rating for emphysema is remanded. Entitlement to an initial rating for a TBI is remanded. Entitlement to a rating in excess of 10 percent for a facial scar is remanded. Entitlement to a total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran does not have a back disability that was incurred in or due to his time in service. 2. The Veteran does not have a bilateral knee disability that was incurred in or due to his time in service. 3. The Veteran’s facial scar is painful. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a bilateral knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to a 10 percent rating, but no higher, for a facial scar have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code (DC) 7800-7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1983 to April 1988. The Veteran had a hearing before the undersigned Veterans Law Judge in May 2020. A transcript has been associated with the file. This appeal comes from March and April 2017 rating decisions. Service Connection Claims Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)(b) (2016), Allen v. Brown, 7 Veteran. App. 439 (1995) (en banc). The Veteran contends he has back and bilateral knee disabilities that were incurred in and due to his time in service. Specifically, the Veteran said he fell out of the back of a truck. This is the same accident that caused his TBI. Since then, the Veteran said his back and knees were achy all the time and that he couldn’t do the daily work. The Veteran’s spouse said he didn’t sleep because he couldn’t lie down for very long and had trouble walking for longer than five minutes. The Veteran said he didn’t have these problems prior to falling off the truck. The Veteran’s medical records show he has been treated for back and knee pain, specifically in his left knee and that imaging results showed the Veteran had some arthritis. (See e.g. June 2017 treatment records.) The Veteran’s motor vehicle accident is documented in his service treatment records (STRs). However, while mention was made of a head injury and a face injury, there is no documentation of a back or knee injury. In October 1991 and January 1993 examinations, the Veteran specifically said “no” to any recurrent back pain. Indeed, in subsequent examinations, the Veteran mentioned past injuries, such as collapsed lung, finger, elbow, and head problems. However, he did not mention any back or knee problems. It does not seem reasonable that the Veteran would report some injuries but not others. The Board notes the Veteran’s entire treatment record after his time in service does not appear to be of record. However, even if the Board were to assume that the Veteran has been diagnosed with a back and bilateral knee disability, the Veteran’s STRs do not show that these injuries began in service. Additionally, the Board notes the Veteran was not provided a separate examination and opinion as to the current nature and etiology of his claimed back and bilateral knee disabilities. However, VA need not conduct an examination with respect to the claim on appeal, as information and the evidence of record contains sufficient competent medical evidence to decide the claim. See 38 C.F.R. § 3.159(c)(4). Under McLendon v. Nicholson, 20 Vet. App. 76 (2006), VA must provide an examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. Simply stated, the standards of McLendon are not met in this case as the Veteran is not shown to have suffered his back or bilateral knee conditions while in service and there is no other competent medical evidence suggesting an association to service. Therefore, the Board finds no prejudice to the Veteran in that some current medical records are missing from his file and that he was not provided examinations for his claimed conditions. The service and post-service treatment records provide evidence against these claims. The Board acknowledges the Veteran’s statements that his disabilities bother him, cause him pain and discomfort, and that he believes they are all due to his time in service, to include the accident that caused his head injury. The Board also recognizes the Veteran continues to seek medical treatment for these conditions. However, while the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the nature and etiology of his medical conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has weighed the Veteran’s statements against the objective evidence of record. The Board finds the fact that the Veteran and the medical examiners reported several injuries due to his accident while in service but did not mention any back or knee problems to be of great probative value. Additionally, the Veteran himself denied any ongoing back or knee problems in subsequent examinations. It is important for the Veteran to understand that these findings provide highly probative evidence against these claims that the Board cannot, unfortunately, ignore, outweighing the Veteran’s belief that his conditions are the result of service, providing a highly clear basis for the opinion. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). Increased Rating Claim Disability evaluations (ratings) are determined by evaluating the extent to which a service-connected disability adversely affects a claimant’s ability to function under the ordinary conditions of daily life, including employment, by comparing the 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. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. In a claim for a greater original rating after an initial award of service connection, all the evidence submitted in support of the Veteran’s claim is to be considered. The Veteran’s facial scar is rated as noncompensable under DC 7800. Under DC 7800, a 10 percent rating is warranted for a scar with one characteristic of disfigurement. A 30 percent rating is warranted for scars with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes, ears, cheeks, lips) or; with two or three characteristics of disfigurement. A 50 percent rating is warranted for scars with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features or with four or five characteristics of disfigurement. An 80 percent rating is warranted for scars with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features or with six or more characteristics of disfigurement. Note 1 indicates the following are the eight characteristics of disfigurement, for purposes of evaluation under § 4.118 are (1) scar five or more inches (13 or more cm.) in length, (2) scar at least one-quarter inch (0.6 cm.) wide at widest part, (3) surface contour of scar elevated or depressed on palpation, (4) scar adherent to underlying tissue, (5) skin hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.), (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.), (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.), (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board finds that DC 7804 is most applicable to rate the Veteran’s facial scar as it provides a higher, 10 percent rating. Under DC 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful. A 30 percent rating is warranted for five or more scars that are unstable of painful. In his May 2020 hearing, the Veteran said his facial scar was sensitive and couldn’t be touched and that while it was itchy, his skin never came off. The Veteran has stated several times that his scar is painful to touch. (See e.g. May 2020 hearing transcript, May 2017 NOD). The Veteran had an examination for his facial scar in April 2017 in which the examiner saw the Veteran in person and reviewed his file. The examiner noted the scar was very thin that was not noticeable without intense observation and that it was benign. The Veteran’s scar measured 4 x.1 cm and that there was no elevation, depression, adherence to underlying tissue or missing underlying tissue. The examiner also said there was no gross distortion of asymmetry of facial features or visible or palpable tissue loss. The examiner also said the scar did not result in limitation of function. The Board finds the Veteran is competent and credible to state that his scar is painful and therefore, a 10 percent rating is granted for one scar that is painful. However, there is no evidence the Veteran has more than one scar on his face or that he has visible or palpable tissue loss and either gross distortion of asymmetry of one feature or paired set of features or with two or three characteristics of disfigurement. Therefore, the Board finds a higher 10 percent rating, but no higher, is warranted. REASONS FOR REMAND The Board regrets the delay, but finds a remand is warranted in several of the Veteran’s claims. The Board notes that the most current treatment records in the Veteran’s file are dated in 2017. A remand is required in order to obtain the more recent treatment records. Entitlement to service connection for an eye disability and a psychiatric disability. Pertaining to the Veteran’s claim to service connection for an eye disability, these missing records may show a currently diagnosed eye condition. Additionally, the Veteran reported in his May 2020 hearing, the Veteran said he had a lot of blurred vision and had sensitivity to light. The Veteran said when he fell out of the truck, he broke a bone around his left eye and it had to be wired back together. The Veteran stated he hadn’t been prescribed glasses, but used reading glasses. The Board finds the Veteran competent and credible to testify that he has blurred vision. Additionally, the Veteran’s STRs show that he did indeed break a bone around his left eye while in service. Therefore, an examination is warranted in order to determine the nature and etiology of any diagnosed eye disability the Veteran may have. McLendon v. Nicholson, 20 Vet. App. 76 (2006). Additionally, the Veteran has been diagnosed with a mental health disability. (See March 2017 examination.) A claim for service connection for a mental disability may encompass claims for service connection of any mental disability that may reasonably be encompassed by several factors, including the veteran’s description of the claim, the symptoms the veteran describes and the information the veteran submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has taken an expansive view of the claim for service connection for PTSD pursuant to Clemons and re-characterized them as shown on the cover page of this decision. The Veteran has already been afforded an examination for his mental health. However, the Board finds this examination to be inadequate as it only addressed a direct theory of entitlement and did not consider whether the Veteran’s mental health disability is secondary to his service-connected disabilities or was aggravated by them. Therefore, another examination is warranted. Barr v. Nicholson, 21 Vet. App. 303 (2007). Entitlement to compensable ratings for a TBI disability, emphysema, and a facial scar. Regarding the Veteran’s claims to compensable ratings for a TBI and emphysema, the Veteran has said these two disabilities have gotten worse. Pertaining to his TBI, the Veteran said in his May 2020 hearing he had trouble with memory loss, headaches, confusion, disorientation, and forgetfulness. The Veteran said he also repeated himself a lot and didn’t realize it until people tell him. The Veteran’s spouse also said that he would tell the same stories over and over again and that the Veteran had been disoriented and fallen off the porch, losing his balance. The Veteran was also sensitive to light and sound. The Veteran also reported getting short of breath, being unable to walk long distances, and that he uses inhalers. The Veteran said at work, he just supervises because he can’t do the work due to his breathing and when performing chores around the house, he had to stop and take breaks all the time. The Veteran last had examinations for these conditions, along with his facial scar, approximately four years ago. The Board finds contemporaneous examinations are required in order to have a picture of current severity of the Veteran’s disabilities. In this decision, the Board was able to grant the Veteran an increased rating of 10 percent for his facial scar. However, because the Veteran has not had an examination for his disability in many years, there is a possibility that he is also entitled to a higher rating. Snuffer v. Gober, 10 Vet. App. 400, 403(1997). TDIU Claim The Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board notes the Veteran does not currently meet the requirements for a schedular TDIU. However, matters on remand may impact that criteria. Therefore, this matter will be remanded as it is inextricably intertwined with the other matters being remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). In his May 2020 hearing, the Veteran said he operated a lawn mowing business. However, the Veteran also reported his service-connected disabilities prevented him from “doing the work” so he would just supervise. It is unclear from this testimony if the Veteran is gainfully or marginally employed. Further development is required in order to determine whether the Veteran may be entitled to TDIU consideration. The matters are REMANDED for the following action: 1. The AOJ should obtain any of the Veteran’s outstanding medical records and associate them with the claims file. If possible, the Veteran himself should submit any pertinent evidence regarding the conditions at issue in order to expedite the claim. 2. Send the Veteran the appropriate forms in order to determine his employment status and history. Invite the Veteran to submit any relevant evidence regarding his employment. 3. Schedule the Veteran for an appropriate VA examination for his 1) eye disability and 2) psychiatric disability. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner should opine as to the following for each disability: (a) Does the Veteran have any currently diagnosed disabilities? (b) If so, whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s disability was incurred during the Veteran’s service. (c) If so, whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s disability is proximately due to any of his service-connected disabilities. (d) If so, whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s disability was aggravated beyond its natural progression by any of his service-connected disabilities. (e) If the examiner finds the Veteran’s disability pre-existed service, whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s disability was aggravated beyond its natural progression by his time in service. The examiner should offer a rationale for any opinion offered and specifically address the Veteran’s contentions and statements about his symptoms while in service. 4. Schedule the Veteran for appropriate VA examinations to determine the current severity of his 1) TBI, 2) emphysema, and 3) his facial scar. (Continued on the next page)   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. 5. After the requested development has been completed, together with any additional development as may become necessary, readjudicate the Veteran’s claim. If the benefit sought on appeal remains denied, issue to the Veteran and the Veteran’s representative a supplemental statement of the case and give an opportunity to respond thereto. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Snoparsky 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.