Citation Nr: 21026895 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 19-38 696 DATE: May 4, 2021 ORDER Entitlement to an initial compensable rating for a scar, status post residual of left inguinal hernia repair, is denied. Entitlement to service connection for thoracolumbar strain and degenerative disc disease of the spine (low back disability) is granted. FINDINGS OF FACT 1. The Veteran's one hernia scar on the abdomen is neither painful or unstable, is not associated with underlying soft tissue damage, and covers an area of less than 144 square inches. 2. The evidence is at least as evenly balanced as to whether the Veteran's low back disability is related to an in-service back injury. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for a hernia scar have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.114, 4.118, Diagnostic Code 7804. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for low back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1959 to August 1963. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In that rating decision, the RO granted service connection for the hernia scar and assigned an initial noncompensable rating. The RO also denied service connection for low back disability. After additional evidence was received, the RO continued the noncompensable rating and the service connection denial in an October 2018 rating decision. In January 2019, the Veteran filed a notice of disagreement (NOD), and a statement of the case (SOC) was issued in November 2019. In December 2019 the Veteran perfected his appeal to the Board. In September 2020, the Board remanded the claims to the agency of original jurisdiction (AOJ) for additional development, specifically to obtain new medical examinations and opinions regarding the Veteran's hernia repair scar and his back disability. For the reasons indicated in the discussion below, the hernia scar examination was adequate and thus complied with the Board's remand instructions. As the service connection claim is being granted in full, discussion of remand compliance is unnecessary. In January 2021, the RO issued a supplemental statement of the case (SSOC) continuing the noncompensable rating for the hernia scar and service connection claim for low back disability. Higher Initial Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 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 Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Where the Veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time, with "staged" ratings warranted if there are separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In this case, for the reasons below, a uniform noncompensable rating is warranted. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. 1. Entitlement to an initial compensable rating for a hernia repair scar is denied. The Veteran is service connected for one surgical scar on his abdomen for his hernia repair, effective January 12, 2012, the date of service connection. In a January 2019 NOD, the Veteran requested a compensable initial disability rating of his hernia repair scar. Diagnostic Code 7805 instructs to evaluate scars under Diagnostic Codes 7800, 7801, 7802, and 7804. Diagnostic Code 7800 relates to scars of the head, face, or neck. Diagnostic Code 7801 relates to scars not of the head, face, or neck that are deep and nonlinear. Diagnostic Code 7802 relates to scars that are superficial and nonlinear. Diagnostic Code 7804 provides a 10 percent evaluation for one or two scars that are unstable or painful on examination. A 20 percent evaluation applies to three or four scars that are unstable or painful. A 30 percent evaluation is for five or more scars that are unstable or painful. For the following reasons, the Board finds that a compensable rating for a hernia scar is not warranted. The September 2018 VA examination report notes that the hernia scar was not a scar located on the Veteran's head, face, or neck to warrant consideration under Diagnostic Code 7800. The hernia scar area was not associated with underlying soft tissue damage and was 3 cm by .1cm, less than 144 square inches. The VA examiner described the Veteran's hernia scar as barely visible. The VA examiner further noted that the Veteran's hernia scar was not tender to palpitation, painful or unstable. A December 2020 VA examination report described the Veteran's hernia scar as "a very, very faint scar" that could not be seen without extensive viewing of the abdominal area. The VA examiner further noted that the hernia scar was not tender to palpitation, painful or unstable. In August 2020, the Veteran's representative submitted an informal hearing presentation (IHP) that stated the Veteran's hernia scar was "raised, painful and unstable." The Veteran's representative indicated that the hernia scar had worsened, and the scar was prone to "cracking and bleeding." In a February 2021 IHP the Veteran's representative did not advance the argument that the Veteran's hernia scar is painful and unstable. Thus, the Board is faced with two VA examination reports finding the scar was not painful and the Veteran's representative relaying that the scar was painful. The Board must weigh this conflicting medical and lay evidence. English v. Wilkie, 30 Vet. App. 347, 349 (2018) (the Board cannot categorially find objective medical evidence more probative than lay evidence) and Petitti v. McDonald, 27 Vet. App. 415, 427 (2015) (a regulation that "does not speak to the type of evidence required... certainly does not, by its own terms, restrict evidence to 'objective' evidence"). Given the clear and consistent finding on the VA examinations that the scar was not painful, the fact that there was no reference to a painful scar in the VA treatment records, the fact that the Veteran did not indicate that his scar was painful in his written statements, the Board finds that the preponderance of the evidence is against the scar being painful or otherwise causing symptoms warranting a compensable rating. The benefit of the doubt doctrine is therefore not for application and the claim for an initial compensable rating for the hernia scar must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. Entitlement to service connection for low back disability is granted. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran asserts that he has a low back disability which incurred in-service during physical training. At a March 2018 examination, the Veteran was diagnosed thoracolumbar strain and degenerative disc disease. Therefore, a current disability has been demonstrated. As to the in-service injury element, during the March 2018 VA examination, the Veteran indicated that his low back pain and symptoms onset in 1963 during physical training in service. The Veteran's statements are competent, credible, and consistent with the evidence of record. Therefore, the in-service injury requirement has been met. The remaining question is whether a nexus exists between the Veteran's current low back disability and the in-service back injury. In September 2020, the Board remanded this matter to the AOJ to obtain a medical opinion as to whether the Veteran's back disability was directly related to any event or injury during the Veteran's active military service. The Veteran has consistently reported that his low back disability began in service and has worsened since separation from service. The Veteran is competent to report his back pain and the worsening of his painful condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds the Veteran's statements of a 1963 back injury during service and back pain competent and credible. In January 2021 a VA examiner opined that it is less likely than not that the Veteran's statements of a low back condition onset during physical training during active duty and led to the Veteran's current back disability. The VA examiner rendered her opinion based upon the lack of objective evidence documenting a chronic back condition during service or within one year since separation. The January 2021 VA examiner's opinion is not entitled to little, if any, probative weight because the VA examiner did fully not consider the Veteran's lay statements concerning the onset of his low back injury and the continuity of his back pain since service. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). Although the Board could remand the claim for another medical opinion, there is sufficient evidence to decide the claim, and a remand could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304 (c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing "with the petitioner that it 'would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant's case.'" (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). Given the evidence of a current disability and in-service injury, the Veteran's competent, credible lay statements of continuous low back pain, and the inadequate negative nexus opinion, the evidence is at least evenly balanced as to whether the Veteran's low back condition is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for low back condition is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Henderson, 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.