Citation Nr: 21040291 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 18-17 272 DATE: July 3, 2021 ORDER An initial compensable rating for left index finger laceration scar residuals is denied. Service connection for a low back disability is granted. Service connection for sleep disturbance, to include as due to a low back disability is granted. Service connection for residuals of chemical burns of both elbows, buttocks, and groin is granted. Service connection for a left knee disability is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran's left index finger laceration scar is not unstable, and the other residual symptoms of numbness and pain have already been separately rated. 2. Resolving reasonable doubt in the Veteran's favor, his low back disability is at least as likely as not related to an in-service injury. 3. The Veteran's sleep disturbance is proximately due to his service-connected low back disability. 4. Resolving reasonable doubt in the Veteran's favor, his systemic inflammatory disease is at least as likely as not related to chemical burns acquired during service. 5. The preponderance of the evidence of record is against finding that the Veteran has had a left knee disability other than pain related to systemic inflammatory disease and/or lumbar radiculopathy at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for left index finger laceration scar residuals have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. 2. The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for sleep disturbance, to include as due to a low back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for residuals of chemical burns of both elbows, buttocks, and groin have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, had active duty service in the U.S. Navy from August 1972 to June 1975 and U.S. Army Reserves service from July 1982 to September 2001. In February 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. The Board previously considered this appeal in June 2020, and remanded these issues for additional development. After the development was completed, the case returned to the Board for further appellate review. Subsequently, a November 2020 rating decision granted service connection for left and right shoulder disabilities. As this represents a full grant of the benefits sought, the issues are no longer on appeal. 1. An initial compensable rating for left index finger laceration scar residuals The Veteran contends that he is entitled to a higher rating because his left index finger scar is occasionally painful and numb. Disability ratings are determined by applying the criteria set forth in the 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 as a whole, 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where, as here, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran's left index finger scar is rated under Diagnostic Code 7804 for unstable or painful scars. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7804 was not changed by the August 13, 2018, amendments. Under Diagnostic Code 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 Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. The Board finds that the preponderance of the evidence is against the assignment of a compensable rating under Diagnostic Code 7804 because the Veteran's left index finger scar residuals are not manifest by one or two scars that are unstable or painful. Moreover, the Veteran's complaints of numbness and pain as residuals of the left index finger scar are already compensated as a separate rating under DC 8615 for neuropathy of the left index finger. Another separate rating may not be assigned because the numbness and pain are not distinct disabilities resulting from a different injury and the symptomatology for one condition is duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 262. The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran's left index finger scar is not of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage. Although it is superficial and not associated with underlying soft tissue damage, it does not cover an area or areas of 144 square inches or greater. Therefore, Diagnostic Codes 7800 through 7802, both prior to and from August 13, 2018, are inapplicable. Finally, the evidence of record shows there are no other disabling effects not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include numbness and pain. However, the Board finds the Veteran's assertions that his scar residuals consist of occasional numbness and pain has already been accounted for in the 10 percent rating assigned under DC 8615. As such, the Board finds the VA examination reports to be more probative than the Veteran's assertions in determining whether the Veteran's scar warrants another compensable rating. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a compensable rating for left index finger scar residuals. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. Once established, a secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). A claim for secondary service connection requires competent medical evidence linking the asserted secondary disorder to a service-connected disability. See Velez v. West, 11 Vet. App. 148, 158 (1998); Wallin v. West, 11 Vet. App. 509, 512 (1998). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated on a secondary basis for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997. In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board has an inherent fact-finding ability. Id. at 1076. The United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). 2. Service connection for a low back disability. The Veteran contends that he has a low back disability related to service. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). An August 2012 VA examination shows the Veteran has a current diagnosis of lumbar scoliosis. During service, the Veteran was seen for complaints of low back pain. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes a December 2012 addendum VA examination opinion. The VA examiner opined that the low back disability is less likely than not related to service. The rationale was that the original injury in February 1994 was a contusion due to a sports injury with no sequalae. The examiner explained that contusions are of an acute nature and are self-limited, and will not cause scoliosis, which is "present from birth and has no relationship to military service." The evidence in favor of the claim includes October 2014 and May 2018 private medical opinions from Dr. J.F. The private physician opined that the low back disability was at least as likely as not related to service. The rationale was that scoliosis is not always congenital in origin and cited to medical literature and scientific studies that show it is possible to have late onset or acquired scoliosis. Dr. J.F. refuted the December 2012 VA examiner's opinion and explained that based on the other possible origins of scoliosis, the Veteran's low back disability was either acquired due to degenerative changes caused by his injury in service or, "if undetected but minimal congenital scoliosis were present," that it was far more likely than not that "military service worsened the condition to a greater level of severity, and greater rate of progression than would have occurred otherwise..." Dr. J.F. also opined that the Veteran's lumbar radiculopathy had onset while in service or was due to the in-service injury. The rationale was that clinical examination findings from 1994 showed decreased interspace height at L4-5, along with left ankle dysesthesia and right ankle paresthesias. Dr. J.F. further explained that the single examination performed by the VA examiner "(with planar x-rays showing lesions likely to cause radicular lesions, and the now confirmed acquired scoliosis) does not negate the diagnosis of lumbar radiculopathy, nor reduce the probability of radiculopathy acquired in service to a less likely than not probability." Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current low back disability is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a low back disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Service connection for sleep disturbance, to include as due to a low back disability. The Veteran asserts that he developed a sleep disturbance due to his low back disability. The August 2012 VA examination shows the Veteran has a current diagnosis of sleep disturbance, which did not result in clinically significant distress or impairment in social, occupational, or other functioning. The August 2012 VA examiner opined that it is at least as likely as not proximately due to or the result of his service-connected low back disability. The VA examiner also noted that the Veteran's sleep disturbance was also affected by his bilateral shoulder pains. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current sleep disturbance is proximately due to his service-connected low back disability. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for sleep disturbance is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Service connection for residuals of chemical burns of both elbows, buttocks, and groin. The Veteran contends that he developed residuals from chemical burn injuries he acquired during service. The Board concludes that the Veteran has a current disability that is related to an in-service injury. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). An October 2014 and May 2018 private medical opinion shows the Veteran has a current diagnosis of autoimmune-inflammatory disease. During service, the Veteran was seen for complaints of chemical burn injuries. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes August 2012 and November 2020 VA examinations showing no residual scars associated with the treatment for chemical burns incurred during service. However, these opinions did not discuss the Veteran's other residuals incurred from the chemical burns, to include late immune-mediated effects. The evidence in favor of the claim includes October 2014 and May 2018 private medical opinions by Dr. J.F. The private physician opined that the chemical burns during service were more than likely the cause of the Veteran's current pain in the left knee, shoulders, and wrists, the latter being mistakenly perceived by the Veteran as left index finger scar-related pain. Dr. J.F. also opined that the left knee pain was more likely than not the result of the combined effect of the inflammatory disease and the lumbar radiculopathy. Dr. J.F. found that the VA examiners' conclusions were incorrect that if there is no superficially visible scar formation, there is no basis to pain. Instead, he explained that scar tissue formation can be at a microscopic level and not visible on simple clinical examination unless biopsy is performed. Dr. J.F. cited to the Veteran's medical record history to support the Veteran's diagnosed systemic inflammatory disease, which he opined is more likely than not related to the chemical burn injuries incurred during service. In support of this opinion, Dr. J.F. cited medical literature that demonstrates a clear statistical correlation between chemical exposures causing tissue injury and subsequent, delayed development of autoimmune disease. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current systemic inflammatory disease is related to chemical burns incurred during service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for residuals of chemical burns is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 5. Service connection for a left knee disability. The Veteran contends that he has a left knee disability related to service. Specifically, he reports pain in his left knee. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a left knee disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board has considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. However, the August 2012 VA examiner found the Veteran's left knee did not impact his ability to work. The Veteran's initial range of motion showed flexion to 135 out of 140 degrees, but extension was not recorded. The August 2012 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of left knee pain, he did not have a diagnosis of a left knee disability. Further, despite treatment throughout the period on appeal, VA and private treatment records do not contain a diagnosis of a left knee disability. In a May 2018 private addendum medical opinion, Dr. J.F. opined that the Veteran's perceived left knee pain is more likely than not attributed to his inflammatory disease caused by chemical burns during service as well as his lumbar radiculopathy. Dr. J.F. explained that the type of inflammatory disease experienced by the Veteran often has no associated findings on clinical examination except for mild or minimal reduction in range of motion and normal x-rays. Dr. J.F. also pointed out that the Veteran's acquired scoliosis and lumbar interspace narrowing shown on x-ray also support this diagnosis of lumbar radiculopathy. While the Veteran believes he has a current diagnosis of left knee pain, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. After a full review of the record, the weight of the evidence demonstrates that the Veteran does not have a separate left knee disability, other than pain attributed to the inflammatory disease caused by chemical burns as well as lumbar radiculopathy, for the reasons discussed above. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. The Board notes that the issue of entitlement to a total disability rating based on individual unemployability cannot be adjudicated until the Veteran's separate AMA appeal has been fully adjudicated as well as the service connection issues granted herein have been assigned disability ratings because they are intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Thus, the Board defers consideration of TDIU until further development is complete. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a TDIU claim form. The Veteran should provide his complete educational, vocational, and employment history and note his complaints regarding the impact of service-connected disabilities on employment. The Veteran should also identify all limitations or functional impairment caused solely by his service-connected disabilities. 2. After the above development, and any additionally indicated development, has been completed, including adjudication of the AMA appeal for higher ratings for bilateral shoulder disabilities and bilateral lower extremity numbness, readjudicate the inextricably intertwined issue of TDIU. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Connally, 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.