Citation Nr: 21028255 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-61 120 DATE: May 10, 2021 ORDER A compensable evaluation for a left index finger scar based on size is denied. An evaluation in excess of 10 percent for a left index finger scar based on pain is denied. A separate evaluation of 10 percent, but not in excess thereof, for limitation of motion of the left index finger is granted. Service connection for gastroesophageal reflux disease (GERD), to include as secondary to posttraumatic stress disorder (PTSD) and as due to exposure to herbicide agents, is denied. Service connection for obstructive sleep apnea, to include as secondary to PTSD and as due to exposure to herbicide agents, is denied. REMANDED Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus or coronary artery disease, is remanded. FINDINGS OF FACT 1. The Veteran's left index finger scar is less than 39 square centimeters. 2. The Veteran has a single scar on his left index finger that is painful but not unstable. 3. The Veteran's left index finger scar is productive of the functional equivalent of limitation of motion with a gap of one inch or more between the fingertip and the proximal transverse crease of the palm with the finger flexed to the extent possible, or extension limited by more than 30 degrees. 4. The Veteran's GERD is not related to service, to PTSD, or to exposure to herbicide agents. 5. The Veteran's sleep apnea is not related to service, to PTSD, or to exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for a left index finger based on size are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7805 (2020). 2. The criteria for an evaluation in excess of 10 percent for a left index finger based on pain are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7804 (2020). 3. The criteria for a separate evaluation of 10 percent, but not in excess thereof, for limitation of motion of the left index finger are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5229 (2020). 4. The criteria for service connection for GERD, to include as secondary to PTSD and as due to exposure to herbicide agents, are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). 5. The criteria for service connection for obstructive sleep apnea, to include as secondary to PTSD and as due to exposure to herbicide agents, are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1971 to April 1973. This appeal is before the Board of Veterans' Appeals (Board) from January 2018 and June 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Board denied the Veteran's claims for increased ratings for his finger scar and remanded his service connection claims on appeal with instruction to issue a statement of the case under Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). A statement of the case was issued in August 2020, and the Veteran submitted his substantive appeal in September 2020. He also appealed the denial of his increased ratings claims to the United States Court of Appeals for Veterans Claims (Court), which vacated the denial in a May 2020 order granting a joint motion for partial remand (JMPR). In October 2020, the Board remanded all remaining issues on appeal with instruction to obtain relevant records and provide new VA examinations. The appropriate records were obtained, and he underwent VA examinations in February 2021. With the exception of inadequacies in the scar examinations discussed in detail below, the Board is satisfied that the instructions in its remands of June 2019 and October 2020 have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). The Board's June 2019 decision also remanded the issues of entitlement to an increased rating for PTSD and entitlement to service connection for diabetes mellitus, ischemic heart disease, prostate cancer, and erectile dysfunction. The record indicates that the development ordered by the Board as to these issues remains underway, and as such they will not be addressed further in this decision. Additionally, the June 2019 decision reopened and denied service connection for bilateral hearing loss. That denial was vacated by the Court in May 2020, and the Board remanded the issue in October 2020. Service connection was granted in a February 2021 rating decision. This constitutes a full grant of the issue, and it will not be addressed further in this decision. The Board notes that in May 2020 the Veteran submitted a claim for entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU). His application stated that he was unemployed due to his diabetes, heart disease, prostate cancer, PTSD, and sleep apnea. Because he did not state that he was unemployable due to his finger scars, and the Board herein finds that the evidence does not establish an effect on his employability, his claim for a TDIU is not part of his increased rating claim on appeal and thus will not be addressed herein by the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). 1. Entitlement to a compensable evaluation for a left index finger scar based on size 2. Entitlement to an evaluation in excess of 10 percent for a left index finger scar based on pain 3. Entitlement to a separate evaluation for limitation of motion of the left index finger The Veteran claims increased ratings for a scar on his left index finger. Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board notes that VA amended the criteria for rating skin disabilities effective 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. The Veteran is in receipt of a noncompensable rating under 38 C.F.R. § 4.118, Diagnostic Code 7805. This code directs that scars be rated under Diagnostic Code 7800, 7801, 7802, or 7804. Diagnostic Code 7800 applies to scars of the head, face, or, neck, and is therefore inapplicable to the Veteran's finger scar. Scars associated with underlying tissue damage not of the head, face, or neck are rated under 38 C.F.R. § 4.118, Diagnostic Code 7801. Prior to the August 2018 amendments, regulations described these scars as deep and nonlinear; the code was otherwise unchanged. A 10 percent rating is warranted for scarred areas of 39 to 77 square centimeters, a 20 percent rating is warranted for scarred areas of 77 to 465 square centimeters, a 30 percent rating is warranted for scarred areas of 465 to 929 square centimeters, and a 40 percent rating is warranted for scarred areas greater than 929 square centimeters. Separate ratings may be assigned for qualifying scars in separate zones of the body. Six zones are defined as each extremity, the anterior trunk, and the posterior trunk. Scars not of the head, face, or neck, that are not associated with underlying soft tissue damage are rated under 38 C.F.R. § 4.118, Diagnostic Code 7802. Prior to the August 2018 amendments, regulations described these scars as superficial and nonlinear; the code was otherwise unchanged. A maximum 10 percent rating is warranted for scarred areas greater than 929 square centimeters. Separate ratings may be assigned for qualifying scars in separate zones of the body. The Veteran is also in receipt of a 10 percent rating under 38 C.F.R. § 4.118, Diagnostic Code 7804, which was unchanged by the August 2018 amendments. This code evaluates scars which are unstable or painful. A 10 percent rating is warranted for 1 or 2 such scars, a 20 percent rating is warranted for 3 or 4 such scars, and a 30 percent rating is warranted for 5 or more such scars. If one or more scars are both painful and unstable, 10 percent is to be added to the total rating. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Limitation of motion of the index finger is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5229. Under this code, a maximum 10 percent rating is warranted for limitation of motion of the index finger with a gap of one inch or more between the fingertip and the proximal transverse crease of the palm with the finger flexed to the extent possible, or for extension limited by more than 30 degrees. Similarly, under 38 C.F.R. § 4.71a, Diagnostic Code 5225, favorable or unfavorable ankylosis of the index finger is rated at a maximum 10 percent. In his September 2017 claim, the Veteran reported that he has difficulty writing due to throbbing pain in his finger. He reported that he had received an injection into his finger for pain. The Veteran underwent a VA examination in October 2017. He reported pain and a "nerve" feeling if he bumped his scar. He was diagnosed with a two-centimeter linear scar on his left index finger. The scar was painful and stable. The examiner noted no functional impairment. The examiner noted that if the digital nerve were involved, the medial tip of his index finger would be numb. In an October 2017 statement, the Veteran reported that his scar causes trouble with writing his name, holding grocery bags, and holding a pen. He reported that there are days that he has a lot of pain and cannot use his left hand. He stated that he sees stars and has trouble when firing a gun. He reported that he cannot even hold a cup of coffee. VA treatment records reflect that January 2018 x-rays showed mild degenerative changes of the left hand. At a February 2018 orthopedic consultation the Veteran reported a sensitive scar of the left index finger. He reported significant pain and blunted sensation to light touch in the area of the scar. On examination the left index finger favored a slightly flexed position at the distal interphalangeal joint, but he otherwise had full passive extension. Circulation, sensation, and motor function were intact. He was diagnosed with left index finger scar hypersensitivity with slight contracture. He underwent an injection. He was provided with a finger sleeve. He subsequently reported that the sleeve was insufficient and in March 2018 he was provided with a finger splint. In his April 2018 notice of disagreement, the Veteran argued that separate ratings were warranted for arthritis and a nerve injury. He reported stiffness of the finger and an inability to fully bend it. In a July 2018 statement, the Veteran stated that his left index finger which he almost lost in service had worsened. He reported that he could not bend it without feeling a lot of pain. He reported that he could not without pain write, sign his name, hold the steering wheel, hold a cup, cut food, or tie his shoes. VA treatment records reflect that in October 2019 the Veteran reported left finger pain shooting up into his shoulder. Median, radial, and ulnar nerve examinations were normal. He was lacking 20 degrees of full metacarpal phalangeal flexion and 25 degrees of proximal interphalangeal flexion. His physician noted firm, fixed nodules of fullness. He reported that he felt that this was sequelae of his in-service injury, but his physician stated that this was unlikely. He was diagnosed with a mass of his let finger. X-rays were suspicious for a ligamentous injury with stable appearance of mild degenerative changes of the first metacarpal phalangeal joint. A November 2019 MRI showed multiple subcutaneous band/nodules involving the left index finger which likely represented Dupuytren's contracture. The Veteran underwent another VA examination in February 2021. He was diagnosed with a scar on the left index distal phalangeal joint curvilinear to the medial aspect. The scar measured 3.5 by 0.1 centimeters. The scar was neither painful nor unstable. There was no functional impact. The Board finds that higher ratings are not warranted based on the size and painfulness of the Veteran's scars. Higher ratings are available for scars totaling at least 39 square centimeters, for multiple painful scars, or for a scar that is unstable. The evidence weighs against such manifestations. The evidence shows that the Veteran has a single scar has been consistently measured at less than one square centimeters. There is no evidence that the scar is unstable. There is no indication of additional scars. For these reasons, the Board finds that higher ratings are not warranted based on the size and painfulness of the Veteran's scars. The Board further finds that a separate evaluation of 10 percent, but no higher, is warranted for limitation of motion of the Veteran's left index finger. The October 2020 remand specifically instructed that the ordered VA examination should address limitation of motion of the left index finger. This instruction was not complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Rather than subject the Veteran to further delay by remanding to guarantee him due process, the Board finds no prejudice in granting him the maximum evaluation available for limitation of motion of the left index finger, 10 percent. This is consistent with his treatment records, which show limitation in range of motion. Affording all benefit of the doubt to the Veteran, the Board thus grants a separate evaluation of 10 percent. As stated, higher evaluations based on limitation of motion or ankylosis are not available. Finally, the Board finds that a separate evaluation is not warranted for nerve involvement in the Veteran's scar. The October 2017 VA examiner explained that if the digital nerve were involved, the medial tip of his index finger would be numb, and his treating physician conducted a normal nerve examination in October 2019. There is no competent medical evidence of nerve involvement in the Veteran's scar. For these reasons, the Board finds that a separate evaluation for nerve involvement in his scar is not warranted. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). For certain chronic diseases, such as hypertension from cardiovascular disease, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For certain diseases with a relationship to herbicide agent exposure, such as diabetes mellitus and ischemic heart disease, a presumption of service connection arises if the disease manifests to a degree of 10 percent or more following service in the Republic of Vietnam any time during the period from January 9, 1962 to May 7, 1975. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). In a June 2020 administrative decision, the Veteran was determined to have been presumptively exposed to herbicide agents onboard his ship under the Blue Water Navy Vietnam Veterans Act of 2019. 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 claimant 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 claimant. 4. Entitlement to service connection for GERD, to include as secondary to PTSD and as due to exposure to herbicide agents The Veteran claims service connection for GERD. Service treatment records do not reflect any symptoms of or treatment for GERD. VA treatment records reflect that in September 2016 the Veteran was treated for chronic GERD and pharyngeal dysphasia. An October 2016 esophagram showed a small amount of gastroesophageal reflux and a small sliding hiatal hernia. In his April 2018 claim, the Veteran's representative cited several articles with the claim that they show a relationship between GERD and PTSD. The Veteran underwent a VA examination in August 2020. He was diagnosed with GERD with an onset in 2000. The examiner opined that GERD was less likely than not caused or aggravated by PTSD. This opinion was based on the rationale that there are many factors that caused the development of GERD, including diet and alcohol. The examiner stated that there was no definite link between GERD and PTSD. The examiner further noted that while many patients with PTSD have GERD, the medical literature does not show a causal link. The Veteran underwent another VA examination in February 2021. He reported symptoms for 15 years, maybe longer. He was diagnosed with GERD and a hiatal hernia. The examiner opined that GERD was less likely than not related to service or to PTSD. This opinion was based on the rationale that there is no indication of GERD in service and no pathophysiological relationship between PTSD and GERD. The Board finds that the evidence weighs against a finding that the Veteran's GERD is related to service, is related to PTSD, or is related to exposure to herbicide agents. There is no indication in the record that GERD arose in or is directly related to service. GERD is not among the disabilities for which VA recognizes a presumptive relationship to exposure to herbicide agents, and there is no evidence in the record of such a relationship. Similarly, there is no evidence that the Veteran's GERD was caused or aggravated by his PTSD. He has provided citations to studies showing a correlation between GERD and PTSD, indicating the possibility of causation. But multiple VA examiners found no basis for causation, and there is no medical evidence in the record which competently links GERD to PTSD in the Veteran's specific case. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran's GERD is related to service, is related to PTSD, or is related to exposure to herbicide agents. Service connection is therefore denied. 5. Entitlement to service connection for obstructive sleep apnea, to include as secondary to PTSD and as due to exposure to herbicide agents The Veteran claims service connection for sleep apnea. Service treatment records do not reflect any symptoms of or treatment for sleep apnea. VA treatment records reflect that in August 2019 the Veteran reported that his wife told him about loud snoring. He underwent a portable sleep study, and in September 2019 he was diagnosed with obstructive sleep apnea. In May 2020 a VA examiner conducted a review of the Veteran's records and diagnosed obstructive sleep apnea. The examiner stated that records indicated that the Veteran initially reported problems with not feeling refreshed after sleep in 2016 but declined a sleep study. After ongoing problems with sleep disturbance, he underwent a sleep study in 2019 and was diagnosed with obstructive sleep apnea. The examiner opined that sleep apnea was less likely than not caused by PTSD. This opinion was based on the rationale that there was no physiological causative relationship between the two disabilities. The examiner explained that obstructive sleep apnea is a physical condition that results from partial blockage of the upper airway during sleep, unrelated to the psychological condition of PTSD. The examiner noted that some articles have been published indicating a correlation between PTSD and obstructive sleep apnea, the studies do not show causation. The Veteran underwent a VA examination in February 2021. He reported sleep apnea for "many many many" years. He reported bad dreams and stated that he keeps waking up to go to the bathroom due to his diabetes. He was diagnosed with obstructive sleep apnea. The examiner opined that sleep apnea was less likely than not related to service or to PTSD. This opinion was based on the rationale that there is no indication of sleep apnea in service and no pathophysiological relationship between PTSD and sleep apnea. The Board finds that the evidence weighs against a finding that the Veteran's sleep apnea is related to service, is related to PTSD, or is related to exposure to herbicide agents. There is no indication in the record that sleep apnea arose in or is directly related to service. Obstructive sleep apnea is not among the disabilities for which VA recognizes a presumptive relationship to exposure to herbicide agents, and there is no evidence in the record of such a relationship. Similarly, there is no evidence that the Veteran's sleep apnea was caused or aggravated by his PTSD. Multiple VA examiners found no basis for such a relationship, and there is no medical evidence in the record which competently links sleep apnea to PTSD in the Veteran's specific case. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran's sleep apnea is related to service, is related to PTSD, or is related to exposure to herbicide agents. Service connection is therefore denied. REASONS FOR REMAND Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus or coronary artery disease The Veteran claims service connection for hypertension. VA regulations require that hypertension or isolated systolic hypertension be confirmed by readings taken two or more times on at least three different days. For compensation purposes, hypertension means that the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101. Service treatment records do not reflect any symptoms of or treatment for hypertension. No such abnormality was noted at the Veteran's January 1973 separation examination, at which time his blood pressure was measured at 120/70. The Veteran submitted a disability benefits questionnaire for ischemic heart disease completed in April 2013 by his private physician. The physician diagnosed coronary heart disease and hypertensive heart disease. The Veteran submitted a disability benefits questionnaire for diabetes mellitus completed in November 2013 by his private physician. The physician stated that his hypertension was at least as likely as not related to his diabetes mellitus. In his April 2018 claim, the Veteran's representative cited several articles with the claim that they show a relationship between cardiovascular hypertension and PTSD. The Veteran underwent a VA examination in August 2020. He was diagnosed with hypertension with an onset in the 1980s. The examiner opined that hypertension was less likely than not caused or aggravated by PTSD. This opinion was based on the rationale that there are many factors that caused the development of hypertension, including genetics and lifestyle factors. The examiner stated that there was no definite link between hypertension and PTSD. The examiner further noted that while many patients with PTSD have hypertension, the medical literature does not show a causal link. The Veteran underwent another VA examination in February 2021. He was diagnosed with hypertension with onset in 1983 or 1984. The examiner opined that hypertension was less likely than not related to service or to PTSD. This opinion was based on the rationale that there is no indication of hypertension in service and no pathophysiological relationship between PTSD and hypertension. The Board finds that the issue of entitlement to service connection for hypertension is inextricably intertwined with the remanded issues of entitlement to service connection for diabetes mellitus and ischemic heart disease. As discussed above, these issues have been remanded by the Board and are undergoing additional development. While the evidence before the Board weighs against a finding that hypertension is secondary to PTSD, the April 2013 and November 2013 disability benefit questionnaires indicate a relationship to diabetes mellitus and ischemic heart disease. The issues are thus inextricably intertwined, and service connection for hypertension must therefore be remanded. See Ephraim v. Brown, 5 Vet. App. 549, 550 (1993) (inextricably intertwined claims should be remanded together). The matter is REMANDED for the following action: 1. Readjudicate the issues of entitlement to service connection for diabetes mellitus and ischemic heart disease as instructed in the June 2019 Board remand. 2. After completing any other development deemed necessary, readjudicate the issue of entitlement to service connection for hypertension, to include as secondary to diabetes mellitus or coronary artery disease. If the benefit remains denied, return the appeal to the Board. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Gallagher, 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.