Citation Nr: 21030427 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-08 086 DATE: May 18, 2021 ORDER Service connection for a right elbow disability is denied. Service connection for a left elbow disability is denied. Service connection for a left knee disability is denied. Service connection for a right knee disability is denied. Service connection for a left ankle disability is denied. Service connection for a right ankle disability is denied. Service connection for a back disability is denied. Service connection for ear infections is denied. An initial compensable rating prior to September 6, 2018, for right thumb and forearm scars is denied. A 10 percent rating, but not higher, beginning September 6, 2018, to July 3, 2019, for right thumb and forearm scars is granted, subject to the regulations governing the payment of monetary awards. A rating in excess of 10 percent from July 3, 2019, for right thumb and forearm scars is denied. FINDINGS OF FACT 1. The preponderance of the competent evidence of record is against finding that the Veteran has had a right elbow disability at any time during or approximate to the pendency of the claim. 2. The preponderance of the competent evidence of record is against finding that the Veteran has had a left elbow disability at any time during or approximate to the pendency of the claim. 3. The preponderance of the competent evidence of record is against finding that the Veteran has had a left knee disability at any time during or approximate to the pendency of the claim. 4. The preponderance of the competent evidence of record is against finding that the Veteran has had a right knee disability at any time during or approximate to the pendency of the claim. 5. The preponderance of the competent evidence of record is against finding that the Veteran has had a left ankle disability at any time during or approximate to the pendency of the claim. 6. The preponderance of the competent evidence of record is against finding that the Veteran has had a right ankle disability at any time during or approximate to the pendency of the claim. 7. The preponderance of the competent evidence of record is against finding that the Veteran has had a back disability at any time during or approximate to the pendency of the claim. 8. The preponderance of the evidence shows that the Veteran's ear infections did not have their onset in service and are not otherwise etiologically related to service. 9. From March 5, 2010, through September 5, 2018, two linear scars on the Veteran's right upper extremity each measured 1.5 inches; these scars were not painful and showed no signs of skin breakdown, inflammation, edema, keloid formation, or other disabling effects. skin breakdown, inflammation, edema, keloid formation, or other disabling effects. 10. Beginning September 6, 2018, the Veteran has credibly stated and the evidence has shown that he has two painful scars on his right upper extremity; these scars cause no limitation of function. CONCLUSIONS OF LAW 1. The criteria for service connection for a right elbow disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left elbow disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 8. The criteria for service connection for ear infections have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 9. From March 5, 2010, through September 5, 2018, the criteria for a compensable rating for right thumb and forearm scars were not met. 38 U.S.C. §§ 1155, 5107; C.F.R. §§ 4.1, 4.7, 4.118, Diagnostic Code 7805. 10. Beginning September 6, 2018, the criteria for a 10 percent rating (but no higher) for right thumb and forearm scars have been met. 38 U.S.C. §§ 1155, 5107; C.F.R. §§ 4.1, 4.7, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty as an Army infantryman from July 1976 to July 1979. The Veteran testified at a videoconference hearing before the undersigned in September 2018. These issues were before the Board in May 2019 when they were remanded for additional development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Right and Left Elbows, Right and Left Knees, Back, Right and Left Ankles The Veteran has generally asserted that he has bilateral elbow, bilateral knee, back, and bilateral ankle disabilities secondary to in-service injuries, to include heavy lifting and jumping from planes. He currently experiences pain but has never been given diagnoses. See January 2016 VA Form 9 and September 2018 hearing transcript. The Veteran's service treatment records (STRs) are silent for any complaints or findings related to elbow injuries or disabilities. A June 1979 separation report of medical history notes the Veteran's report of knee and back injuries in field training, as well as current knee pain, buckling knees, and weak ankles. A June 1979 separation examination report notes no findings of elbow, knee, ankle, or back disabilities. Clinical evaluation of the upper extremities, lower extremities and spine was normal. Likewise, the Veteran's post-service treatment records are also silent for any findings of elbow, knee, back, and ankle disabilities. Notably, the Veteran underwent VA examinations in September 2010. The examiner noted his complaints of back pain, knee popping and ankle swelling; however, the examination revealed no disability. The Veteran's gait and posture were noted to be normal, no instability was seen in the knees and ankles, range of motion was full in the spine, knees and ankles, and his lower extremity reflexes were normal. More recently, a December 2018 VA outpatient treatment record notes the Veteran's complaints of back, knee and ankle pain; however, examination and review of prior X-rays studies were noted to be unrevealing. A July 2019 VA outpatient treatment record indicates the Veteran denied back and joint pain. After reviewing the foregoing evidence, the Board concludes the Veteran does not have current elbow, knee, back, or ankle disabilities, and has not had any such disabilities during the pendency of the claim or recent to the filing of the claim. While the Veteran has, through his pursuit of these service connection claims, reported having knee, back and ankle pain, there has been no evidence in the record of persistent or recurrent symptoms related to the knees, back, or ankles, and no evidence showing that any such pain caused functional impairment or had an effect on his earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). As noted above, the VA examination in 2010 showed normal knees, back and ankles with no disability. There is no medical evidence ot the contrary. Lacking current disability, the cornerstone element of service connection has not been met, and service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, with regard to obtaining a VA examination of the right and left elbows, there is no indication in the record, to include no competent evidence of record (other than the Veteran's lay assertions, which have been non-specific in this regard) showing that he been diagnosed with right and left elbow disabilities. The Federal Circuit Court of Appeals (Federal Circuit) has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). In this case, VA's duty to provide examinations is not triggered, and a VA examination regarding the Veteran's claims is neither necessary nor warranted. Id. Thus, the Board concludes that the weight of the competent and credible evidence establishes that the Veteran has not been shown to have bilateral elbow, bilateral knee, back, and bilateral ankle disabilities at any time during the pendency of the claim or recent to the filing of the April 2010 claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As the Veteran does not have diagnoses of right elbow, left elbow, right knee, left knee, back, right ankle, or left ankle disabilities, there is no current disability and the first element of service connection has not been met for any of these issues. See Brammer v. Derwinski, supra. Therefore, service connection must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claims, the doctrine is not for application. Gilbert v. Derwinski, supra. Ear Infections The Veteran's STRs show that he complained of his right ear feeling "blocked" in July 1981. However, at no time during service was the Veteran diagnosed with or treated for an ear infection. The first post-service evidence of ear infections is an August 2009 VA treatment record. The Veteran reported right ear pain for four days; the diagnosis was otitis externa. Subsequent treatment records show treatment for ear infections, including in October 2012, November 2013, and April 2015. A VA medical opinion was obtained in July 2019. The examiner reviewed the claims file and opined that the Veteran's ear infections were less likely than not related to, incurred in, or caused by his military service. The examiner explained that there was no evidence of in-service ear infections, and the first finding was not until decades later in 2009. There are no medical opinions or other competent evidence to the contrary. While the Veteran believes his ear infections began in service, this disability is not readily apparent to lay observation and he is not competent to provide a diagnosis or nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships, pathology and the interpretation of diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the medical opinion of the VA examiner. In light of the probative negative medical nexus opinion provided by the VA examiner as noted above, the lack of medical evidence showing that onset of the claimed disability was in service or related to service, service connection is not warranted. Because the preponderance of the evidence is against this service connection claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53. Increased Ratings 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. The basis of disability evaluations is the ability of the body, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider 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 disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999). An April 2012 rating decision awarded service connection for right thumb and forearm scar, status post laceration, effective March 5, 2010. The Veteran's service-connected disability is currently rated noncompensable prior to July 3, 2019, and 10 percent from July 3, 2019. See September 2019 rating decision. Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are deep and nonlinear. Scars that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) are rated 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) are rated 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq.cm.) are rated 40 percent disabling. Note (1) to Diagnostic Code 7801 provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are superficial and nonlinear. Superficial scars in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Note (1) to Diagnostic Code 7802 provides that a superficial scar is one not associated with underlying soft tissue damage. Id. Pursuant to Diagnostic Code 7804, which applies to unstable or painful scars, a 10 percent rating is warranted for one or two scars that are unstable or painful; a 20 percent rating is warranted for three or four scars that are unstable or painful; and a 30 percent rating is warranted for five or more scars that are unstable or painful. 38 C.F.R. § 4.118. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note 1. If one or more scars are both unstable and painful, VA is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. at Note 2. According to Diagnostic Code 7805, which applies to other scars (including linear scars) and other effects of scars, VA is to evaluate any disabling effect(s) not considered in a rating provided under such Diagnostic Codes under an appropriate diagnostic code. 38 C.F.R. § 4.118. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. STRs show that the Veteran sustained lacerations to his right forearm and thumb when he put his arm through a window. He was treated (surgical repair and physical therapy) and the lacerations healed prior to his separation from service. A June 1979 separation examination report is negative for any complaints or findings related to symptomatic scars. An October 2010 VA hand, thumb and fingers examination report notes the Veteran's history of injury in service. He denied any decrease in hand strength or dexterity. On examination, X-ray studies revealed no abnormalities. There were no nerve, joint, or muscles affected. Two surgical scars were noted. The scars were asymptomatic and superficial, with no skin breakdown, inflammation, edema, keloid formation, or "other disabling defects." The thumb scar was linear and measured 1.5 inches. The forearm scar was linear and measured 1.5 inches. VA treatment records dated from 2010 to 2018 note no complaints or findings related to the Veteran's service-connected scars. During a September 6, 2018, Board hearing, the Veteran testified that his scars were painful and unstable. He said the scars did not heal properly and complained that they were attached to "the muscle or something" below. A July 2019 VA scars/disfigurement examination report notes the Veteran's current complaint of pain from two scars: a thumb scar measuring 8 by 0.1 centimeters and a forearm scar measuring 4 by 0.1 centimeters. These were painful to palpation. An additional nonpainful scar was noted on the forearm, measuring 2 by 0.1 centimeters. None of the scars were unstable, had loss of skin covering, or had underlying soft tissue damage. None of the scars resulted in limitation of function. The total area affected was 14 square centimeters. After reviewing the pertinent evidence of record, the Board finds that the Veteran's service-connected scars warrant an increased 10 percent rating, but not higher, beginning September 6, 2018, under Diagnostic Code 7804. For the initial rating period from March 5, 2010, through September 5, 2018, the Board finds the Veteran's service-connected right thumb and forearm scars do not warrant a compensable disability rating under Diagnostic Codes 7801-7805. As noted above, the evidence of record clearly does not reveal scars other than the head, face, or neck that are deep or cause limited motion in an area exceeding 6 square inches or 39 sq. cm. (Diagnostic Code 7801); scars other than the head, face, or neck that are superficial, do not cause limited motion, and in an area exceeding 144 square inches or 929 cm. or greater (Diagnostic Code 7802); superficial unstable scars with frequent loss of skin covering over the scar (Diagnostic Code 7803); nor painful or unstable scars (Diagnostic Code 7804). Again, the 2010 VA examination report noted that the scars were asymptomatic and superficial, with no skin breakdown, inflammation, edema, keloid formation, or other disabling defects. At the September 6, 2018 Board hearing, the Veteran reported that his scars are painful. The Veteran is competent to testify to symptoms he observes, such as pain. The Board also finds him credible. In July 2019, the VA examiner noted that the scars were tender to palpation. Accordingly, and resolving all reasonable doubt in the Veteran's favor, the Board finds the service-connected scars are painful in nature and thus assigns a 10 percent rating under Diagnostic Code 7804, effective September 6, 2018. A higher rating of 20 percent is not warranted because the Veteran does not have (nor has it been argued that he has) three or four scars that are unstable or painful. The scars are not deep, nonlinear, greater than 144 square inches, or associated with functional loss (see the July 2019 VA examination), and no other diagnostic code pertaining to scars could provide a higher disability rating. (Continued on the next page) Accordingly, for the reasons stated above, the preponderance of the evidence supports the assignment of a 10 percent rating, but not higher, for the Veteran's service-connected scars, effective September 6, 2018. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Fletcher, Kathleen 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.