Citation Nr: 21027399 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 18-23 030A DATE: May 5, 2021 ORDER An initial disability rating in excess of 10 percent for painful scars of the left lateral leg and right lower extremity, associated with compartment syndrome of the left leg, is denied. An initial disability rating of 20 percent, but no more, for neurological involvement of the left lower extremity, associated with compartment syndrome of the left leg, is granted. Service connection for tinnitus is denied. REMANDED Entitlement to service connection for a low back disorder is remanded. FINDINGS OF FACT 1. The Veteran has one scar affecting the left leg that is linear and painful and one painful scar affecting the right leg that is linear and painful; three or four scars that are unstable or painful, one or more scars that are painful and unstable, and/or scars that are deep and nonlinear, covering an area of at least 12 square inches (77 sq. cm) but less than 72 square inches (465 sq. cm) have not been shown. 2. The Veteran's neurological involvement of the left lower extremity has been characterized by moderate incomplete paralysis; severe incomplete paralysis has not been shown. 3. The Veteran's tinnitus was not shown in service or for many years thereafter and is not otherwise etiologically related to active duty service. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for a painful scar of the left lateral leg and a painful scar of the right lower extremity, associated with compartment syndrome of the left leg, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code (DC) 7804. 2. The criteria for an initial disability rating of 20 percent, but no more, for neurological involvement of the left lower extremity, associated with compartment syndrome of the left leg, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.6, 4.120, 4.123, 4.124, 4.124a, DC 8521. 3. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1990 to December 1992. In January 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Increased Ratings The Veteran is seeking increased initial disability ratings for his service-connected scars of the bilateral lower legs, painful scar of the left lateral leg, and neurological involvement of the left lower extremity. Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Board notes that during the appeal period, VA amended its regulations governing skin disabilities effective August 13, 2018. However, the criteria for rating scars under applicable DCs did not change. 1. Entitlement to an initial compensable disability rating for scars of the bilateral lower legs, associated with compartment syndrome 2. Entitlement to an initial disability rating in excess of 10 percent for a painful scar of the left lateral leg, associated with compartment syndrome of the left leg The Veteran contends that an initial disability rating in excess of 10 percent is warranted for his painful scar of the left lateral leg. Specifically, he asserts that an increased disability rating is warranted because it is "very, very sensitive," because he experiences excruciating pain if anything contacts his left leg scar, and because discoloration is present in the left leg. The Veteran also contends that an initial compensable disability rating is warranted for his service-connected scars of the bilateral lower legs. As a preliminary matter, the Board finds that 38 C.F.R. § 4.118, DC 7804 is the most appropriate DC to evaluate the Veteran's left lateral leg scar and his right lower extremity scar because both scars are linear and painful. Specifically, the report from the April 2020 VA examination reflects that the examiner determined that he had one painful linear scar on his right lower extremity that measured 23 cm in length and .3 cm in width. In order to warrant a rating in excess of 10 percent for scars, the evidence must show that the scar is, or the scars are: Deep and nonlinear covering an area or areas of at least 12 square inches (77 sq. com) but less than 72 square inches (465 sq. cm) (20 percent under DC 7801); Three of four in number that are unstable or painful (20 percent under DC 7804); or, One or two in number that are unstable and painful (20 percent under DC 7804, Note (2)). 38 C.F.R. § 4.118. After a review of the evidence of record, the Board concludes that an initial disability rating in excess of 10 percent for the Veteran's painful left lateral leg and right lower extremity scars is not warranted. First, the reports from the VA examinations fail to show that an initial disability rating in excess of 10 percent is warranted for his painful left lateral leg and painful right lower extremity scars. Specifically, the report from the September 2015 VA examination reflects that the examiner determined that he had one linear scar on the left lower extremity that measured 18.5 cm in length and 1 cm in width, and that the scar was not painful or unstable. The examiner also determined that he had one linear scar on the right lower extremity that measure 20 cm in length and 1.3 cm in width, and that the scar was not painful or unstable. The report from the March 2018 VA examination reflects that the examiner determined that he had one painful linear scar on his left lower extremity that measured 18 cm in length and .6 cm in width, and that the scar was not unstable. The report from the March 2018 VA examination did not reflect that he had a scar on the right lower extremity. The report from the April 2020 VA examination reflects that the examiner determined that he had one painful scar on his left lower extremity that measured 18 cm in length and .3 cm in width, and that the scar was not unstable. The examiner also determined that he had one painful linear scar on the right lower extremity that measured 23 cm in length and .3 cm in width, and that the scar was not unstable. Thus, the reports from the VA examinations fail to show that an initial disability rating in excess of 10 percent is warranted for the Veteran's painful scar of the left lateral leg and his painful scar of the right lower extremity because they do not show that he had deep and nonlinear scars covering an area of at least 12 square inches, three or four painful or unstable scars, or one or two painful and unstable scars on his left lateral leg or right lower extremity. Additionally, the Veteran's treatment records do not reflect that the Veteran's left lateral leg or right lower extremity had deep and nonlinear scars covering an area of at least 12 square inches, three or four painful or unstable scars, or one or two painful and unstable scars on his left lateral leg. Therefore, his treatment records also fail to establish that an initial disability rating in excess of 10 percent is warranted for his painful left lateral leg and right lower extremity scars. The Board has also considered whether higher ratings are warranted under DC 7800, Note (4), and DC 7805 for scars, which are to be rated based on limitation of function of the part affected. However, the September 2015, March 2018, and April 2020 VA examiners did not determine that the Veteran had any other pertinent physical findings, complications, conditions, signs and/or symptoms, such as muscle or nerve damage associated with his left lateral leg scar or right lower extremity scar. Thus, there is no evidence of other disabling effects or limitation of function that would warrant a higher and/or additional rating. Therefore, a higher disability rating also is not warranted under DC 7800, Note (4), DC 7805, or any other relevant DC. 3. Entitlement to an initial disability rating in excess of 10 percent for neurological involvement of the left lower extremity, associated with compartment syndrome of the left leg The Veteran contends that an initial disability rating in excess of 10 percent is warranted for his service-connected neurological involvement of the left lower extremity. Specifically, the Veteran asserts that an increased disability rating is warranted because he experiences significant shocking pain in his left lower extremity, and that the pain is aggravated by standing and increased activity levels. To the extent that the Veteran has been assigned multiple ratings for left leg disabilities, the Board is cognizant that the assignment of multiple ratings based on the same symptoms or manifestations constitutes prohibited pyramiding. 38 C.F.R. § 4.14. However, here, the Board finds that the assignment of separate ratings based on paralysis of the common peroneal nerve under DC 8521 and a disability of muscle group XI under DC 5311 does not amount to pyramiding under 38 C.F.R. § 4.14. In this regard, separate ratings under different DCs may be assigned where "none of the symptomatology for any of [the] conditions is duplicative of or overlapping with the symptomatology of the other . . . conditions." Esteban v. Brown, 6 Vet. App. 259 (1994). Here this key consideration has been met, in that paralysis of the left leg based on a neurological impairment and limitation of propulsion and plantar flexion of the foot concern cause different impairments related to movement, and these impairments therefore constitute different bases for rating the left leg. 38 C.F.R. § 4.45. As a preliminary matter, the Board assigns a 20 percent initial disability rating to the Veteran's service-connected neurological involvement of the left lower extremity because the evidence is at least in equipoise that his neurological involvement of the left lower extremity has been manifested by moderate incomplete paralysis under DC 8521. Specifically, the report from the March 2018 VA examination reflects that his neurological involvement of the left lower extremity has been manifested by severe paresthesias and dysesthesias and numbness, and that the examiner determined that his neurological involvement of the left lower extremity caused moderate incomplete paralysis of the left internal saphenous nerve. Given the examiner's in-person examination, review of the claims file, and expertise, the Board finds that the examiner's determination is entitled to significant probative weight and establishes that the evidence is at least in equipoise that his neurological involvement of the left lower extremity meets the criteria for the assignment of a 20 percent initial disability rating. In order for a disability rating in excess of 20 percent to be warranted under 38 C.F.R. § 4.124a, DC 8521, to be warranted, the evidence must show severe incomplete paralysis. Based on the evidence of record, a rating in excess of 20 percent is not warranted for the Veteran's service-connected neurological involvement of the left lower extremity. Specifically, the report from the June 2014 VA examination reflects that the examiner determined that his neurological involvement of the left lower extremity was manifested by moderate intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness, and that his neurological involvement of the left lower extremity caused mild incomplete paralysis of the superficial peroneal nerve of the left lower extremity. As set forth above, the report from the March 2018 VA examination reflects that the examiner determined that his neurological involvement of the left lower extremity was not manifested by constant or intermittent pain, but that it was manifested by severe paresthesias/dysesthesias and severe numbness, and that it caused moderate incomplete paralysis. The examination reports also showed that his neurological involvement of the left lower extremity did not cause trophic changes or an abnormal gait and that he had normal reflexes. Moreover, although the March 2018 VA examination report reflects that the Veteran had active movement against some resistance with respect to left ankle dorsiflexion, the examination reports otherwise found that he had normal muscle strength in the left leg. Finally, none of his treatment records reflect that his neurological involvement of the left lower extremity has been manifested by severe incomplete paralysis. By virtue of the foregoing, the Board concludes that an initial disability rating of 20 percent, but no more, for the Veteran's neurological involvement of the left lower extremity is warranted. Additionally, the Board has considered the statements from the Veteran that his service-connected scars and neurological involvement of the left lower extremity are worse than the disability ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Although the Veteran is competent to report symptoms of these disabilities such as numbness and pain because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his service-connected disabilities according to the appropriate DCs. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's service-connected scars and neurological involvement of the left lower extremity has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the VA examination reports) directly address the criteria under which these disabilities are evaluated. Service Connection 1. Entitlement to service connection for tinnitus The Veteran contends that service connection for tinnitus is warranted. In support of his claim, he asserts that his tinnitus is etiologically related to his active duty service because he had significant noise exposure during his active duty service, including frequently being "around" explosions. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Moreover, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). Certain chronic diseases may be presumed to have been incurred during service if they become manifested to a compensable degree within one year from separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). This presumption is rebuttable by affirmative evidence to the contrary. Id. Moreover, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). Here, the Board concludes that although the Veteran has a diagnosis of tinnitus, the preponderance of the evidence weighs against finding that service connection is warranted. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Initially, the Board finds that the Veteran's service treatment records fail to establish that his tinnitus was incurred in or is otherwise etiologically related to his active duty service. With respect to tinnitus, his service treatment records do not reflect that he reported symptoms of, received treatment for, or was diagnosed with tinnitus. Indeed, his August 1992 report of medical history reflects that he denied hearing loss and did not report symptoms of tinnitus, and the report from the August 1992 separation examination reflects that he had normal hearing and that the examining physician did not indicate that the Veteran had any symptoms of tinnitus. Thus, his service treatment records fail to establish that his tinnitus was incurred in or is otherwise etiologically related to his active duty service. The post-service evidence also does not indicate that the Veteran has experienced continuous symptoms related to tinnitus. In this case, the objective medical evidence does not show any symptoms of or treatment for symptoms that could be attributed to tinnitus until the April 2014 VA examination was conducted, where he reported the onset of tinnitus "a year ago," which was more than 20 years after his separation from service. Accordingly, a continuity of symptoms based upon the clinical evidence is not sufficient to support a direct nexus for tinnitus, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). The Board acknowledges the statements by the Veteran regarding the history of his symptoms of tinnitus, including his testimony at the Board hearing that his tinnitus began during his second year of active duty service. To the extent the Veteran contends that his tinnitus was caused by his service and has persisted since service, the Board determines that the reported history of continued symptoms while competent, is nonetheless not credible and does not establish the nexus element because, as set forth above, the clinical evidence shows that he indicated that his tinnitus began "about" one year prior to the April 2014 VA examination, more than 20 years after his separation from service. The fact that he did not seek treatment for more than 20 years after his active duty service weighs against these claims and his credibility. See Kahana v. Shinseki, 24 Vet. App. 428, 439-40 (2011). Additionally, his August 1992 report of medical history, where he denied hearing loss and did not report that he experienced symptoms of tinnitus and the report from the August 1992 separation examination, where the examiner did not find that he experienced tinnitus further weigh against his credibility because they do not show that he had tinnitus or experienced symptoms of tinnitus during his active duty service. Moreover, he filed other claims for benefits, including an August 2007 claim seeking service connection for a bilateral leg condition prior to filing his claim seeking service connection for tinnitus. The fact that he was aware of the VA benefits system, but made no reference to tinnitus also weighs against his credibility in asserting continuous symptoms of tinnitus. Thus, a continuity of symptoms cannot be established based upon the Veteran's statements. Finally, service connection may be granted when the evidence establishes a medical nexus between active duty service (to include his toxic herbicide exposure) and the current diagnosis. However, there is not sufficient evidence in the medical records to demonstrate a nexus between his active duty service and his tinnitus. Specifically, the report from the April 2014 VA examination reflects that the examiner opined that his tinnitus was less likely than not caused by or a result of military noise exposure because tinnitus was not reported in the service treatment records, tinnitus could not be claimed as secondary to acoustic trauma because there was not hearing loss at separation, and because he had normal hearing on examination, showing that his tinnitus was more likely due to presbycusis or another etiology because his hearing was normal. The examiner also cited medical literature for the proposition that noise seldom causes permanent tinnitus without causing hearing loss. Given the examiner's review of the claims file, in-person examination, expertise, thorough rationale, and citation to medical literature, the Board finds that the examiner's opinion is entitled to significant probative weight and shows that there is not a nexus between the Veteran's tinnitus and his active duty service. In arriving at its conclusion, the Board has also considered the statements made by the Veteran relating his tinnitus to noise exposure during his active duty service. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau, 492 F.3d at 1377). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his disorders. See Jandreau, 492 F.3d at 1377, n.4. Although he can provide competent testimony regarding symptoms of his tinnitus, the diagnoses of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. See id. at 1376-77. Thus, to the extent that the Veteran believes that his disorders are related to service, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion, and the Board finds the opinion of the April 2014 VA examiner is entitled to greater probative weight. By virtue of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim seeking service connection for tinnitus. REASONS FOR REMAND 1. Entitlement to service connection for a low back disorder is remanded. The Board concludes that the Veteran's claim seeking service connection for a low back disorder requires further development. Specifically, his August 1992 report of medical history reflects that he reported that he experienced recurrent back pain while on active duty. The August 1992 report of medical history, in conjunction with the Veteran's testimony that he did not seek treatment for a back disorder while on active duty because he was placed on a profile due to a bilateral leg disorder, confirms that a VA examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain any and all treatment records from the VA Albany Community Based Outpatient Clinic in Albany, Georgia, since September 2020, and any other VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit the medical records of such treatment. 2. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature, extent, onset, and etiology of his low back disorder. The claims file should be provided to the examiner for review. All indicated studies deemed necessary by the examiner should be performed, and all findings of those tests should be reported in detail. The examiner should consider the Veteran's report of recurrent back pain in the August 1992 report of medical history, and his testimony at the January 2021 Board hearing relating his back disorder to his active duty service. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that Veteran's low back disorder had its onset in, or is otherwise etiologically related to the Veteran's period of active duty service. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Crosnicker, Associate Counsel