Citation Nr: 21026249 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-27 701 DATE: April 30, 2021 ORDER Entitlement to service connection for hypertension is granted. Entitlement to an initial rating higher than 10 percent for a scar of the lumbar spine is denied. Entitlement to an initial compensable rating for scarring head to toe is denied. REMANDED Entitlement to service connection for hypothyroidism is remanded. Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for a psychiatric disorder is remanded. Entitlement to an initial rating higher than 20 percent for a lumbar spine disability is remanded. Entitlement to an initial rating higher 10 percent for radiculopathy of the right lower extremity is remanded. FINDING OF FACT 1. The Veteran’s exposure to herbicide agents during service in the Republic of Vietnam during the Vietnam era is presumed. 2. The Veteran’s medical evidence confirms a current diagnosis of hypertension. 3. Epidemiologic evidence supports positive association between hypertension and herbicide agent exposure. 4. The evidence is in equipoise as to whether the Veteran’s currently diagnosed hypertension is related to his conceded exposure to herbicide agents during Vietnam service. 5. The Veteran has 1 scar that is unstable or painful. CONCLUSION OF LAW 1. The criteria to establish service connection for hypertension are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to an initial evaluation in excess of 10 percent for a scar of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. 3. The criteria for entitlement to an initial compensable evaluation for scarring head to toe have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty from September 1966 to September 1968. He had service in the Republic of Vietnam. This matter comes to the Board of Veterans’ Appeals (Board) from an August 2013 rating decision from a Department of Veterans Affairs (VA) regional office (RO). In November 2018, these matters were last before the Board, when they were remanded for further development. Service Connection for Hypertension The Veteran asserts that his hypertension is related to exposure to herbicide agents during service in Vietnam. The Veteran has a current diagnosis of hypertension. See e.g., November 2019 VA examination report. As already established, on the issue of in-service incurrence, the Veteran is presumed to have been exposed to herbicide agents based on his service in Vietnam during the applicable time period. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). VA laws and regulations provide that, if a veteran was exposed to herbicide agents during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation. The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32, 395-32, 407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21, 260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). Hypertension is not one of the diseases listed under 38 C.F.R. § 3.309(e). Presumptive service connection is therefore not warranted. Nevertheless, as noted above, the Board requested a medical opinion as to whether the Veteran’s hypertension is directly related to his herbicide agent exposure. A November 2019 VA examiner reviewed the claims file and opined that the Veteran’s diagnosed hypertension is less likely than not related to service. The examiner indicated that medical literature did not reveal that hypertension was aa risk factor due to exposure to Agent Orange. Notably, the 2018 National Academies of Sciences, Engineering, and Medicine (NAS) upgraded hypertension from “limited” evidence to the category of “sufficient” evidence of an association from its previous classification in the “limited or suggestive” category,” indicating that there is enough epidemiologic evidence to conclude that there is a positive association between hypertension and exposure to herbicides, including Agent Orange. See National Academy of Science November 2018 update report titled, Veterans and Agent Orange Update 11 (2018). As such, the examiner’s conclusion that no literature supports a connection between hypertension and exposure to herbicide agents is conclusory at best. In addition, the 2018 NAS study was compromised of expert in the field of science, and the examiner lack of consideration/dismissal of this evidence was not supported by any medical evidence or rationale. The Board thus concludes that the evidence for and against the claim is in at least in equipoise. By law, the Board must resolve all reasonable doubt in favor of the Veteran. The claim is therefore granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Initial Rating for a Lumbar Spine Scar The Veteran’s scar of the lumbar spine, status-post laminectomy, is rated under Diagnostic Code 7804 for unstable or painful scar(s). The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7804 was not changed by the August 13, 2018, amendments. 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. 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 manifest by three or four scars that are unstable or painful. VA examination of the spine in August 2013 reflected a single painful and/or unstable scar. VA examination in November 2019 documented a 23 cm. x 0.3 cm. (6.9 sq. cm) scar, that was not painful, unstable, or due to burns. However, the Veteran related that the scar sometimes hurt when he slept. The scar has no impact on the Veterans ability to work. The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran’s scar of the lumbar spine 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. Finally, the evidence of record shows there are no other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre-and post-August 13, 2018, Diagnostic Code 7805. Other than pain and possible instability, there are no other disabling effects from this scar. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. The Veteran is competent to report observable symptoms, to include pain and tenderness, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, medical records do not show, that the Veteran’s lumbar spine scar is manifest by three or four scars that are unstable or painful. Below, the Board is denying entitlement to an initial compensable rating for scarring from “head to toe” because there are no other scars. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a disability rating higher than 10 percent for the scar of the Veteran’s lumbar spine. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Scars from Head to Toe In the rating decision on appeal, the RO granted service connection for “head to toe” scarring. However, in the narrative section of the rating decision, the RO explained that it was granting service connection for the exact same scar of the lumbar spine, evaluated above. It evaluated the scar as non-compensable, noting it was painful, but not unstable, measured less than 39 square centimeters, and was superficial and linear. In essence, the RO denied entitlement to a compensable evaluation because it measured less than 39 sq. cm. and was not deep and non-linear under 38 C.F.R. § 4.118, Diagnostic Code, 7801 pre-amendment. The RO continued this denial in the May 2016 Statement of the Case (SOC) and in the August 2020 Supplemental SOC (SSOC), which considered the amended criteria, which are essentially identical, but for the fact that the amended criteria no longer require the scar to be nonlinear. There is no basis for an initial compensable evaluation for scarring “head to toe.” As discussed above, there are no other disabling effects of the lumbar spine scar not considered in the evaluation under 38 C.F.R. § 4.118, Diagnostic Code 7804, i.e. a painful scar measuring 6.9 sq. cm. The scar has never been characterized as deep or associated with underlying soft tissue damage, notwithstanding that it has always been linear. Thus, there are no grounds for evaluation of scars from “head to toe” and the lumbar spine scar is properly evaluated under 38 C.F.R. § 4.118, Diagnostic Code 7804, pre- and post-amendment. The Veteran has a single painful scar of the posterior trunk measuring 6.9 sq. cm. REASONS FOR REMAND A remand is necessary to obtain addendum medical opinions regarding the issues of service connection for hypothyroidism and hepatitis C and to obtain adequate VA examinations regarding the issue of service connection for an acquired psychiatric disorder and increased rating for a lumbar spine disability and associated lumbar radiculopathy. Hypothyroidism and Hepatitis C In November 2018, the Board remanded these claims to afford the Veteran VA medical examinations and obtain opinions regarding the likely etiology of the claimed disabilities. In its remand directives, the Board directed the examiner to consider favorable medical opinions on each issue dated in June 2016 from Dr. S. VA afforded the Veteran VA examinations in November 2019 and obtained etiological opinions regarding his hepatitis and hypothyroidism. In each case, the examiner offered a negative opinion. With respect to thereto, the examiner again stated that “review of medical literature (medical books & up to date) didn’t reveal [hypothyroidism and hepatitis c] as a risk factor due to exposure to agent orange.” The examiner did not address Dr. S.’s opinion as directed by the Board. Accordingly, there was no substantial compliance with the Board’s remand directives and new medical opinions are necessary prior to deciding the claims on the merits. An Acquired Psychiatric Disorder In its remand directives the examiner was asked to address whether diagnosed disorder was caused or aggravated by a service-connected disability. The examiner rendered a diagnosis of adjustment disorder with depressed mood. The examiner offered a negative opinion, stating that the adjustment disorder was at least as likely as not related to loss of close friends and feeling lonely. The examiner did not address the question of secondary service connection or Dr. S.’s opinion as directed by the Board. Accordingly, a new VA examination is necessary prior to deciding the claim on the merits. Initial Rating for Lumbar Spine and Associated Lumbar Radiculopathy The Board finds that a remand is necessary to provide the Veteran with an adequate VA examination to assess the current severity of the service-connected lumbar spine disability and associated lumbar radiculopathy. Notably, although during the most recent examination the Veteran reported no flare-ups, such were reported during the pendency of the appeal. In addition, the examiner concluded that the examination was neither consistent nor inconsistent with the Veteran’s statements describing functional loss after repeated use over time. The examiner indicated that the Veteran had no functional loss despite noting reports of difficulty with prolonged sitting and standing and lifting. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate VA examiner to help determine the likely etiology of the Veteran’s hypothyroidism. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After a review of the record, the examiner is asked to respond to the following: Provide an opinion as to whether it is at least as likely as not (a 50 percent or higher probability), that hypothyroidism is related to service, including, but not limited to, the conceded exposure to herbicide agents. The examiner must address Dr. S.’s June 2016 statement suggesting a nexus between this disorder and service. A complete rationale should be provided for all opinions. The rationale cannot rely on the fact that hypothyroidism is not noted in the “Limited Evidence of No Association” category in the 2002 Agent Orange Update.” Rather, explain with complete rationale why hypothyroidism is or is not related to exposure to herbicide agents. 2. Obtain an addendum medical opinion from an appropriate VA examiner to help determine the likely etiology of the Veteran’s hepatitis. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After a review of the record, the examiner is asked to respond to the following: Provide an opinion as to whether it is at least as likely as not (a 50 percent or higher probability), that hypothyroidism is related to service, including, but not limited to, the conceded exposure to herbicide agents. The examiner must address Dr. S.’s June 2016 statement suggesting a nexus between this disorder and service. A complete rationale should be provided for all opinions. The rationale cannot rely on the fact that hepatitis is not noted in the “Limited Evidence of No Association” category in the 2002 Agent Orange Update.” Rather, explain with complete rationale why hepatitis is or is not related to exposure to herbicide agents. 3. Provide the Veteran with an appropriate VA examination to help determine the likely etiology of the claimed acquired psychiatric disorder. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Identify all currently diagnosed psychiatric disorders since the date of claim in October 2012. If the examiner concludes that no psychiatric disorder is shown, he or she must reconcile prior diagnoses and explain how they have resolved or no longer show any pathology. (b) For each currently diagnosed acquired psychiatric disorder, provide an opinion as to whether it is at least as likely as not (a 50 percent or higher probability) that it had its onset during service or is otherwise related to it. In doing so, the examiner must address Dr. S.’s June 2016 statement suggesting a nexus between this the Veteran’s psychiatric disorder and service. (c) For each currently diagnosed acquired psychiatric disorder, provide an opinion as to whether it is at least as likely as not (a 50 percent or higher probability) that it was caused OR aggravated by a service-connected disability. A complete rationale should be provided for all opinions on direct, causation, AND aggravation. 4. Provide the Veteran with a VA examination to help identify the current severity of the lumbar spine disability and associated lumbar radiculopathy. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of the lumbar spine disability throughout the pendency of the appeal from October 2012, forward. In doing so, obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. (b) Full range of motion testing must be performed where possible. The joint in question and the paired joint should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. If pain is found during the examination, the examiner should note when the pain begins. (c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. **If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. (d) Elicit from the Veteran all signs and symptoms of right and/or left lumbar radiculopathy and address its current severity. 5. Thereafter, readjudicate the remanded claims. A. Yaffe Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph R. Keselyak, 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.