Citation Nr: 21027580 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 11-01 061 DATE: May 6, 2021 ORDER Prior to December 21, 2016, entitlement to a compensable rating for right shoulder scar associated with right shoulder arthritis with clavicle resection is denied. From December 21, 2016, entitlement to a 10 percent disability rating, but no higher, for right shoulder scar associated with right shoulder arthritis with clavicle resection is granted. Entitlement to service connection for obstructive sleep apnea is granted. REMANDED Entitlement to a compensable rating for a low back strain is remanded. Entitlement to a disability rating in excess of 10 percent for right shoulder arthritis with clavicle resection prior to September 4, 2009; and in excess of 20 percent, thereafter, is remanded. Entitlement to a disability rating in excess of 10 percent for left shoulder strain prior to September 11, 2015; and in excess of 20 percent, thereafter, is remanded. FINDINGS OF FACT 1. Prior to December 21, 2016, the Veteran's right shoulder scar was not painful. 2. From December 21, 2016, the Veteran has had one painful right shoulder scar. 3. Resolving reasonable doubt in favor of the Veteran, the Veteran's obstructive sleep apnea was incurred during his active service. CONCLUSIONS OF LAW 1. Prior to December 21, 2016, the criteria for entitlement to a compensable rating for right shoulder scar associated with right shoulder arthritis with clavicle resection have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7804. 2. From December 21, 2016, the criteria for entitlement to a 10 percent disability rating, but no higher, for right shoulder scar associated with right shoulder arthritis with clavicle resection have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7804. 3. The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1992 to October 1999. These matters come before the Board of Veterans' Appeals (Board) on appeal from two rating decisions, from July 2010 and February 2016, by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2015, the Board remanded the Veteran's claim for an increased disability rating for his low back disability was remanded. In July 2019, the Board remanded the Veteran's claims for service connection for obstructive sleep apnea and increased ratings for his right and left shoulder, as well as a right shoulder scar. In January 2020, the Board remanded the Veteran's claim for an increased rating for his lower back disability for additional development. In November 2020, the Board again remanded the Veteran's claim for an increased rating for his lower back disability. To the extent that the issues of entitlement to a higher rating for right shoulder scar and entitlement to service connection for sleep apnea were previously remanded by the Board, review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 1. Prior to December 21, 2016, entitlement to a compensable rating for right shoulder scar associated with right shoulder arthritis with clavicle resection 2. From December 21, 2016, entitlement to a 10 percent disability rating, but no higher, for right shoulder scar associated with right shoulder arthritis with clavicle resection The Veteran contends his right shoulder scar warrants an increased disability rating. The Veteran's right shoulder scar is currently rated under Diagnostic Code (DC) 7804 for painful or unstable scars as noncompensable to August 15, 2017 and 10 percent disabling thereafter. The Board finds a 10 percent disability rating, but no higher, is warranted from December 21, 2016. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts founda practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Scars are evaluated pursuant to DCs 7800-7805. 38 C.F.R. § 4.118. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. As this appeal was pending on August 13, 2018, the revised criteria are applicable, but only for the period beginning August 13, 2018, if more favorable. Prior to August 13, 2018, DC 7801, was for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear. Under these criteria, a scar with an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrants a 10 percent rating. Higher ratings are available for greater levels of severity. 38 C.F.R. § 4.118, DC 7801. Prior to August 13, 2018, Note 1 to DC 7801 instructed that a deep scar is one associated with underlying soft tissue damage. Id. Under DC 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 DC 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. Effective August 13, 2018, DC 7801 is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage and cover an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrants a 10 percent rating. 38 C.F.R. § 4.118. DC 7801 was otherwise unchanged by the August 13, 2018, amendments. DC 7804 was unchanged by the amendments. At a shoulder and arm VA examination in December 2012, the examiner noted the presence of a right shoulder scar that was neither painful nor unstable. At a shoulder and arm VA examination in November 2015, the examiner noted the presence of a 5 centimeter by .5 centimeter scar on the Veteran's right shoulder that was painful or unstable. However, the examiner did not complete the scar disability benefits questionnaire. The examiner subsequently submitted a January 2016 addendum clarifying that he had incorrectly marked the Veteran's scar as painful and that "the scar was not painful, was stable, was not equal to or greater than 39 square centimeters, and was not located on the head, face, or neck." On December 21, 2016, the Veteran submitted a statement in support of claim indicating that his scar had become itchy with a painful sensation like something sharp is stabbing him. In July 2019, the Veteran was provided a scar examination. The examiner noted one painful scar on the Veteran's right shoulder that the Veteran described as like a knife being stuck in between bones, a lot of pain shoots from his arm into his neck. The examiner noted that the scar was not unstable and did not impact the Veteran's ability to work. The preponderance of the evidence is against the assignment of a compensable rating prior to December 21, 2016 because the weight of the evidence of record does not support that the Veteran's one right shoulder scar was painful or unstable prior to this time. Specifically, the Board finds probative the reports of the December 2012 and November 2015 VA examiners that denied the presence of a painful scar. Additionally, in January 2016, the Veteran right shoulder scar was noted to be neither painful nor unstable. The Board notes that these findings were made based upon the reports of the Veteran at the time of these examinations. However, evidence indicates a 10 percent disability rating, but no higher, is warranted from December 21, 2016. In a December 21, 2016 statement, the Veteran reported that his scar was painful and itchy. From this date, the Veteran has consistently reported his single right shoulder scar to be painful. As such, the Board find that a compensable rating is warranted from this point based upon a single painful scar. The evidence does not indicate that the Veteran's scar is unstable. Higher ratings are warranted for multiple painful or unstable scars. The Board has considered whether a higher rating is warranted under other scar DCs but finds none are applicablethe Veteran's right shoulder scar is not on his head, face, or neck, nor 144 square inches in size. A higher rating is not warranted under DC 7805. Although the Veteran complained of a stabbing pain that shot from his arm to his neck at his July 2019 VA examination, the Board notes that he is already service connected for right shoulder and arm pain such that these complaints of stabbing pain are contemplated by his currently assigned rating for his right shoulder disability rating. In sum, the preponderance of the evidence is against the assignment of a compensable rating prior to December 21, 2016. However, the evidence supports a 10 percent disability rating from December 21, 2016. To this extent, the appeal is granted. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 3. Entitlement to service connection for obstructive sleep apnea In September 2015, the Veteran filed a claim for service connection for sleep apnea. The Veteran has contended that his sleep apnea had onset during his period of active service. See August 2019 VA examination. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of 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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entire record. A layperson is competent to report on the onset and continuity of current symptomatology based on personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if the layperson: (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) is describing symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, at 1376-77 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded. The Veteran's service treatment records demonstrate that the Veteran reported not sleeping "due to gagging" at night in June 1996. While sleep apnea was not reported on the Veteran's examination at separation from service in August 1999, the Veteran reported a long-standing history of difficulty sleeping. In July 2019, the Veteran was provided a VA examination regarding his complaints of sleep apnea. The examiner reported a diagnosis of obstructive sleep apnea that he reported had onset in 1995. The examiner noted the Veteran's reports that while the Veteran was serving in North Carolina that he was waking up a lot in the middle of the night and could not sleep. He noted the Veteran's reports that he was often late to work and sometimes he would sleep straight through alarm because he would not hear it. He stated that when he eventually sought medical attention that he was diagnosed with obstructive sleep apnea. While the examiner provided a diagnosis of obstructive sleep apnea dating back to 1995, the examiner contradictorily concluded that there was not enough evidence to support that the Veteran's obstructive sleep apnea was incurred in service. The examiner rationalized that the Veteran's service treatment records contained complaints of sleeping problems, but "no causative etiology for a collapsed airway," which is what causes obstructive sleep apnea. After review of the evidence of record, the Board will resolve the benefit of the doubt in favor of the Veteran and finds that service connection is warranted for obstructive sleep apnea. The evidence indicates that the Veteran has current diagnosis of this condition that was confirmed via sleep study, which meets the first element of service connection. The Veteran has reported in-service symptoms of gagging during sleep, daytime tiredness, and difficulty staying asleep. His service treatment records document reports of "gagging" at night and reports of difficulty sleeping prior to separation from service. A May 2000 VA examination also indicates that that Veteran was informed that he snored within a year of separation from service. The Board finds these reports to be competent and credible; as such, the second element of service connection is met. Finally, based upon the Veteran's competent lay statements, the Board finds that the Veteran's sleep apnea had onset during service. See Maples v. Wilkie, No. 18-2016, 2019 U.S. App. Vet. Claims LEXIS 199 (Feb. 11, 2019) (mem dec) (Falvey, J.) (lay evidence can be sufficient to support a claim for service connection for sleep apnea); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). Further, the Board notes, while contradictory, the evidence provided by the 2019 VA examiner supports entitlement to service connection. The examiner provided a diagnosis of obstructive sleep apnea since 1995 during the Veteran's period of active service. While the examiner felt not enough information could be obtained to determine that the Veteran's condition had a causative etiology to his period of service, the Board notes that is irrelevant. See also Dallas v. McDonough, No. 20-1215, 2021 U.S. App. Claims LEXIS 235, *4 (Feb. 18, 2021) (mem dec., Falvey, J.) (noting that the question for the Board in a direct service connection case is "not whether military service caused the Veteran's disability but 'whether the Veteran has a current disability that began during service'"); see also Bethea. Accordingly, the Board finds that the evidence of record is at least in equipoise that the Veteran's obstructive sleep apnea had onset during his period of active service. Therefore, the Board finds that entitlement to service connection for the Veteran's obstructive sleep apnea is warranted. 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND 1. Entitlement to a compensable rating for a low back strain is remanded. A remand is required to provide the Veteran an addendum opinion to distinguish the effects of nonservice-connected lumbar spine conditions from those of his service-connected lumbar spine strain, as requested by the Board's August 2015 remand. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Board remand confers the right to compliance with remand orders). In August 2015, the Board remanded this claim to provide the Veteran a VA examination that would separate the symptoms of nonservice-connected back condition from his service-connected back condition. In August 2020, the Veteran attended a VA back examination. However, the examiner did not address range of motion and functional loss due to the Veteran's lumbar strain versus his lumbar spine degenerative arthritis. Moreover, the Veteran has exhibited guarding or muscles spasms resulting in an abnormal spinal contour since December 2012, but the examiner did not opine as to whether this stems from the Veteran's lumbar strain or arthritis. The Veteran was provided another VA back examination in September 2020, but this examination does not remedy the above-mentioned deficiencies. As such, a remand is required to provide the Veteran an examination that complies with the Board's prior August 2015 remand directives. 2. Entitlement to a disability rating in excess of 10 percent prior to September 4, 2009 for right shoulder arthritis with clavicle resection; and in excess of 20 percent, thereafter, is remanded. 3. Entitlement to a disability rating in excess of 10 percent for left shoulder strain prior to September 11, 2015; and in excess of 20 percent, thereafter, is remanded. A remand is warranted to provide the Veteran a VA examination that adequately addresses the point at which pain begins during range of motion testing, as well as the lost functional ability in the Veteran's right shoulder following repetitive use over time and during flare ups and the lost functional ability in the Veteran's left shoulder during flare ups. See Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). The Veteran was provided a VA examination in July 2019. At the examination, the Veteran reported that his shoulders had worsened and that his current symptoms consisted of popping and clicking, grinding, decreased ranges of motion, and decreased strength. The Veteran reported flare ups and functional loss consisting of difficulty with overhead reaching. The examiner noted that increase in pain resulted causes decrease in range of motion; however, when it came to estimate the resulting functional loss in these scenarios in terms of additional degrees of range of motion loss, the examiner recorded the Veteran's ranges of motion to be the same as his initial ranges of motion. The Board finds that a new, comprehensive examination should be afforded regarding the severity of the Veteran's left and right shoulder disabilities. The matters are REMANDED for the following action: 1. Ask the August 2020 examiner to identify all symptoms associated with each service-connected back disability. If the examiner cannot separate symptoms of the service-connected back disability from any nonservice-connected back disability, the examiner must so state. Otherwise, the examiner must separate out such disabilities. If any limitation of motion is the result of a service-connected back disability, range of motion should be measured and portrayed in terms of degree of range of motion loss. If symptoms cannot be disassociated, that too should be set out. The examiner is asked to specifically comment on the etiology of the Veteran's guarding and/or spasms resulting in an abnormal spinal contour and functional loss during flare ups related to the Veteran's service-connected back disability. 2. Schedule the Veteran for an examination to determine the current severity of his service-connected left and right shoulder disabilities. The claims file must be made available to the examiner. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings should be reported in detail. The examiner must specifically provide an opinion regarding whether the Veteran's conditions would result in additional functional limitations during periods of flare-ups or after repeated use over time. If the examination is not conducted during a period of a flare-up or after repeated use over time, the examiner must provide an estimated opinion of additional functional limitations based upon the evidence of record, including the Veteran's lay statements and medical evidence of record. If the examiner is unable to provide such an opinion, the inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Patrick M. Johnson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.A. Infante, 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.