Citation Nr: 21029836 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-13 742 DATE: May 17, 2021 ORDER Entitlement to a 10 percent disability rating prior to February 8, 2021, for service-connected burn scars right wrist and hand is granted. Entitlement to a disability rating in excess of 10 percent from February 8, 2021, for service-connected burn scar right wrist is denied. Entitlement to a compensable disability rating from February 8, 2021, for service-connected burn scars right hand is denied. REMANDED Entitlement to service connection for tumor, left side of head, is remanded. Entitlement to service connection for hearing loss, left ear, is remanded. FINDINGS OF FACT 1. The more probative medical evidence indicates that the Veteran's burn scar in the right upper extremity is a deep, non-linear burn scar, of 56 centimeters square centimeters. 2. The Veteran has four additional superficial burn scars of the right upper extremity that are of 2 square centimeters in total. CONCLUSIONS OF LAW 1. The criteria for a 10 percent disability rating, but no higher, for service-connected burn scar right wrist and hand, prior to February 8, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.118, Diagnostic Code (DC) 7801, 7802. 2. The criteria for a disability rating in excess of 10 percent for service-connected burn scar right wrist from February 8, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.118, Diagnostic Code (DC) 7801. 3. The criteria for a compensable disability rating for service-connected burn scars right hand from February 8, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.118, Diagnostic Code (DC) 7802. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to September 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from September 2014 and October 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in March 2019, and a transcript of that hearing is of record. The case was remanded in April 2020. With regards to burn scar of the right hand and wrist, although the Board had listed it as a service connection claim in the prior remand, this was incorrect, and the proper discussion/remand directives were provided for an increased rating claim. The RO did characterize it properly as an increased rating in its subsequent February 2021 Supplemental Statement of Case (SSOC)/rating decision. Thus, the Board will proceed its analysis for an increased rating claim at this time. As part of the claim for an increase, the Veteran testified as to other hand/wrist symptoms he had, and he was subsequently granted service connection for carpal tunnel syndrome with a 20 percent rating. He has not disagreed with that rating, and the award of a separate rating for a secondary condition was a full grant of the benefit sought on appeal, so the Board does not have jurisdiction to address it. Service connection for diabetes mellitus was also granted in the same rating decision, so the Board also no longer has jurisdiction over that claim. See Grantham v Brown, 114 F.3d 1156 (Fed Cir 1997). He has until March 1, 2022, to disagree with these ratings, if he would like to do so. As for the tumor on the left side of the head, the Board remanded that claim, in part, for obtaining a medical opinion on ascertaining whether any of the VA surgical providers (ie. from around 2011 to the time of surgery in 2013) failed to exercise the degree of care that would be expected of a reasonable health care provider. Although the Board finds there has been substantial compliance with the previous remand instructions, the Board regrettably finds another remand is required for service connection for the tumor and left ear hearing loss conditions in light of the RO conceding the Veteran's exposure to herbicides based on his Navy service. The Veteran disputed the adequacy of the 2014 VA examination provided for the scar condition. Specifically, he argued that the VA examiner never asked him whether his scar hurt. However, as discussed below, the preponderance of the evidence seems to suggest that the pain he alleges pertains to his right hand/wrist, rather than his scar itself being painful, which is critical to the increased rating claim at issue. Regardless, the Board does not find that examination report especially probative in light of the new more complete VA examination obtained subsequent to the remand. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist or with the conduct of his Board hearing. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is a balance of positive and negative evidence regarding any material issue, the benefit of the doubt shall be given to the claimant. See 38 U.S.C. § 5107 (b). Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. See 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting its decisions, there is no requirement that the Board discuss every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to each claim. Increased Rating Disability ratings are determined by applying the criteria set forth in 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. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). But where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disabilities in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability for the time period beginning one year before filing the claim until the VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a 10 percent disability rating prior to February 8, 2021, for service-connected burn scars right wrist and hand 2. Entitlement to a disability rating in excess of 10 percent from February 8, 2021, for service-connected burn scar right wrist 3. Entitlement to a compensable disability rating from February 8, 2021, for service-connected burn scars right hand The Veteran stated in his substantive appeal that he has pain and difficulty closing his hand, and that he has long been taking 800mg Ibuprofen for treating pain. During the Board hearing, he also testified having numbness/pain/weakness in his right hand/finger, as well as difficulty picking up small objects. Initially, the Board notes that service connection was originally granted for burn scar right hand and wrist with a non-compensable rating under DC 7802. This rating was continued until the issuance of a February 2021 rating decision, which assigned separate ratings for the burn scar right wrist under DC 7801 and for the burn scar on the right hand under DC 7802. The RO then granted a higher rating of 10 percent under DC 7802 for the right wrist scar, effective February 8, 2021. The Board has considered all possible ratings. The assignment of a particular diagnostic code depends upon the facts of each particular case, and the Board is authorized to choose an appropriate diagnostic code that is supported by both the evidence of record and a sufficiently articulated rationale. See Butts v. Brown, 5 Vet. App. 532, 538-39 (1993). Moreover, service connection for a disability is not severed when the diagnostic code assigned to that disability is revised in order to more accurately reflect the veteran's relevant medical history, diagnoses, and demonstrated symptomatology. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). DC 7802 provides a maximum 10 percent evaluation for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear. 10 percent is warranted for area or areas of 144 square inches (929 square centimeters) or greater. Under DC 7801, a higher 20 percent rating is warranted for scars associated with underlying soft tissue damage that have a total area or areas of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). Higher ratings under DC 7801 are warranted for only scar(s) that exceeds 12 square inches (77 square centimeters). The Veteran underwent a VA examination in 2014, during which time, he was found to have a one burn scar (steam burn, right hand, ventral surface) that was not neither painful nor unstable. The examiner described it as a superficial, non-linear scar that is of 6 cm x 1.5cm (9 centimeters square), located in the right upper extremity (it appears that the examiner mistakenly wrote 7 centimeters square, after indicating its length and width as 6 cm and 1.5 cm). No functional impact due to his scar was found. Photographs were taken of the scar and are in the file. His treatment records show brown discolored skin over the right volar wrist and distal palm, in which the tissue is not adhered and is not sensitive, accompanied by pain, stiffness, and numbness in the right hand. See February 2016 VA treatment records. These records do not provide any pertinent records relating to the size or other nature of his scar. Post-Board remand, the Veteran underwent a VA examination in February 2021, during which time he was diagnosed with burn scar of right wrist and burn scar of right hand. The Veteran reported burn wounds that had healed but consistently manifesting numbness/stiffness, as well as right hand numbness and inability to pick up small objects. The examiner indicated that the Veteran has five burn scarsone on the right hand volar scar over thumb, thenar, and wrist, that has a deep partial thickness; another on the extensor surface of the right hand distal phalanx/2nd finger that is less than deep partial thickness; and extensor surface of the right hand distal phalanx on the 3rd, 4th, and 5th fingers. Each scar (all located in the right upper extremity) was described as the following: 14 cm x 4 cm, 1 cm x 0.5 cm, 1 cm x 0.5 cm, 1 cm x 0.5 cm, and 1 cm x 0.5 cm. Scars without underlying tissue damage were described as right upper extremity, including approximate total area of 4 x 0.5 centimeters square and 14 x 4 centimeters square. The examiner further indicated that the 14 cm x 4 cm burn scar has underlying tissue damage, while the remaining four burn scars do not have underlying tissue damage. None of the scars were found to be painful, or unstable with frequent loss of covering of skin over the scar. Furthermore, none of the scars were found to result in limitation of function, impact his ability to work, or involve any other pertinent physical findings, complications, conditions, signs and/or symptoms associated with any scars. Prior to February 8, 2021 Upon review of the records, the Board finds that the weight of the competent evidence of record supports finding that the Veteran warranted a 10 percent rating for his right burn scars on the right wrist and hand, which were rated as a single disability under DC 7802. The 2014 VA examination indicated that the Veteran had one non-linear, burn scar that is of 9 centimeters square in size, which would not be large enough to warrant an increased rating. However, it must be noted this is a steam burn scar incurred in service, which does not seem to be the type of scar/disability that would typically change over time. Despite this fact, the 2021 VA examination described the scar as involving underlying tissue damage and gave a different measurement as to the dimensions of the scar. The 2014 VA examination did not expressly find there was no underlying tissue damage, and the report is exceedingly brief. That examiner did, however, take a photograph of the scar on the wrist, and it is apparent to a lay person that there is some underlying tissue damage, as the later VA examiner described. Again, this is not the type of scar that would change over time, so the 2014 photograph combined with the 2021 VA examination findings are more probative and outweigh the very brief findings of the 2014 VA examiner. In light of the 2014 and 2021 VA examinations bearing different factual findings (both as to the dimension and the nature of the burn scar), this seems to suggest the latter examination was more thorough. Accordingly, the Board finds that a higher rating of 10 percent, but no higher, under DC 7801 was warranted. Again, despite the 2014 VA examiner's description of the Veteran's scar as "superficial," the 2021 VA examiner affirmatively indicated the scar has underlying soft tissue damage, and this finding is supported by the photograph taken at the 2014 VA examination. The 2021 VA examination also indicates the scar is 56 square centimeters. Considering the nature of the Veteran's scar (a steam burn scar) and the inconsistencies in the medical evidence, the Board will resolve reasonable doubt in favor of the Veteran and find a higher rating of 10 percent, but no higher, under DC 7801, was warranted prior to February 8, 2021 for a deep burn scar of at least 39 square centimeters. While the Board also considered whether the Veteran warrants a higher rating, there is no indication that the Veteran's scar ever exceeded 77 square centimeters. Thus, only the 10 percent rating was warranted. The Board has considered the applicability of other potentially applicable diagnostic criteria for rating the Veteran's scar, but finds that a higher rating is not assignable under any other diagnostic code. DC 7800 is not applicable. Furthermore, while DC 7805 directs any disabling effects not considered in a rating provided under DCs 7800-7804 to be evaluated under an appropriate DC, as noted above, his numbness/weakness was granted service connection as carpal tunnel syndrome of the right hand, with a separate 20 percent rating, effective October 21, 2015, under DC 8515-8512. With regards to the applicability of DC 7804, the Board acknowledges the Veteran's statement that he was never asked whether his scar hurts during the VA examination, that he experiences pain (without specifying whether this pain pertains to his scar itself or to his right hand/wrist due to carpal tunnel), and that he has been prescribed Ibuprofen 800mg for a while. However, even when the Veteran seems to have begun using prescribed Ibuprofen for his right hand/wrist pain, among other pain/inflammation conditions (see August and September 2015 VA treatment records), he was only noted to have right hand numbness/weakness during that time, and the preponderance of the evidence does not seem to suggest any objective or subjective findings of his scar itself being painful (see also September 2015, October 2015, and February 2016 VA treatment records, claiming pain of right hand/wrist). Thus, considering the Veteran's somewhat vague statement as to his pain (as to its exact locationie. skin versus hand/wrist (painful motion)), as well as his voluminous contemporaneous records showing pain in his hand/wrist, rather than his scar itself being painful, the Board finds that the Veteran does not warrant a higher rating under DC 7804. In light of above, the Board finds that the Veteran warrants a 10 percent, but no higher, for his burn scars right wrist and hand prior to February 8, 2021. Since February 8, 2021 After reviewing all pertinent records, the Board finds that the Veteran does not warrant a rating in excess of 10 percent for his right wrist burn scar condition under DC 7801. Only one of his burn scars (14 cm x 4 cm) was noted to have underlying tissue damage (i.e. burn scar that is "deep"). There is no information related to his skin condition in his treatment records. Because his burn scar is not large enough to warrant an increased rating, his claim is denied. As for the non-compensable rating, effective February 8, 2021, under DC 7802 for the burn scars on the right hand, the Board finds that the Veteran does not warrant a compensable rating. The Veteran's remaining burn scars of the right upper extremity consist of four superficial scars that is of 1 cm x 0.5 cm in size, each (a total of 2 centimeters square). Thus, the Board finds that the size of his burn scars on the right hand does not warrant a higher rating. The Board has also considered the applicability of other potentially applicable diagnostic criteria for rating the Veteran's scar, but finds that a higher rating is not assignable under any other diagnostic code. Initially, the Board notes DC 7800 is not applicable. DC 7804 is also not applicable, as there is no evidence that his scars are either unstable or painful. With regards to the applicability of DC 7805 (which directs any disabling effects not considered in a rating provided under DCs 7800-7804 to be evaluated under an appropriate DC), as noted above, the Veteran was granted a separate 20 percent rating under DC 8515-8512 (effective October 21, 2015 to present) for numbness/weakness conditions associated with his carpal tunnel syndrome of the right hand. The Veteran's increased rating claim is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 4. Entitlement to service connection for tumor, left side of head The Veteran seeks service connection for tumor, left side of head. He has not identified any particular in-service event or injury related to this condition, but generally provides that he served on U.S.S. Tolovano and that he was in charge of supply division, handling all fuels. Alternatively, he seeks entitlement to compensation under 38 U.S.C. § 1151. Since the most recent Board remandwhich remanded for obtaining a medical opinion on ascertaining whether VA surgical providers failed to exercise the degree of care that would be expected of a reasonable health care provider (38 U.S.C. § 1151)the RO conceded the Veteran's exposure to herbicides based on his nautical service abord the U.S.S. Tolovano in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. See June 2020 VA Memorandum. The Veteran has been diagnosed with various conditions, to include cerebellopontine angle tumor that "probably represents an acoustic schwannoma" (ie. non-malignant), giant cystic left acoustic tumor, and acoustic neuroma. To date, none of these conditions are enumerated as disabilities entitled to presumptive service connection based on exposure to herbicide agents under 38 C.F.R. § 3.309(e). However, under Combee, service connection may still be awarded based on that exposure on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). As noted above, although VA medical opinions have been obtained for his tumor condition, none of those opinions shed light on a potential nexus between his conceded in-service tumor condition and his current tumor condition. Thus, the Board finds that another remand is required for a medical nexus opinion for direct service connection. 5. Entitlement to service connection for hearing loss, left ear The Veteran claims that his left ear hearing loss is due to his tumor in the left side of head. The Board finds another remand is required as this claim is inextricably intertwined with his tumor condition that is being remanded at this time. These matters are REMANDED for the following action: 1. Obtain a medical addendum opinion. The examiner must review the complete claims file, including this remand. Then, the examiner must address the following, with full supporting rationales: Determine whether the Veteran's tumor diagnoses (includes cerebellopontine angle tumor that "probably represents an acoustic schwannoma" (ie. non-malignant), giant cystic left acoustic tumor, and acoustic neuroma) are at least as likely as not related to an in-service injury, event, or disease, to include his conceded in-service herbicide exposure. The examiner is advised that simply stating the Veteran's tumor is not on the list of diseases presumptively associated with herbicide exposure is not sufficient rationale for a negative opinion. If the examiner cannot provide any requested opinion without resort to speculation, he or she should explain why and note what if any additional information is needed to render an opinion. 2. IF AND ONLY IF the Veteran is granted service connection for tumor, left side of head, then obtain a medical opinion as to whether the Veteran's left ear hearing loss is proximately due to or is aggravated by the tumor, left side of head. The opinion must address both causation and aggravation as alternative theories for secondary service connection. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lee 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.