Citation Nr: 21049704 Decision Date: 08/12/21 Archive Date: 08/12/21 DOCKET NO. 19-17 542 DATE: August 12, 2021 ORDER Entitlement to an initial compensable evaluation for residuals, second degree burns, left ankle is denied. Entitlement to service connection for nerve or vascular damage of the left ankle/foot, as secondary to residuals, second degree burns, left ankle is denied. Entitlement to service connection for hypertension, as secondary to residuals, second degree burns, left ankle is denied. Entitlement to service connection for a left ankle disorder, as secondary to residuals, second degree burns, left ankle is denied. REMANDED Entitlement to service connection for drug and alcohol dependency, to include as secondary to residuals, second degree burns, left ankle is remanded. FINDINGS OF FACT 1. The Veteran's left ankle scar (residuals of second degree burn) has been manifested by one superficial and non-linear scar that is not painful or unstable; measures less than 929 square centimeters; is not associated with underlying soft tissue damage; and loss of function of the body part affected has not been demonstrated as due to scar. 2. Nerve or vascular damage of the left ankle/foot was not manifest during service and an organic disease of the nervous system was not manifest within one year of separation. Nerve or vascular damage of the left ankle/foot is unrelated to service. 3. Nerve or vascular damage of the left ankle/foot is not caused or aggravated by a service-connected disease or injury. 4. Hypertension was not manifest during service and was not manifest within one year of separation. Hypertension is unrelated to service. 5. Hypertension is not caused or aggravated by a service-connected disease or injury. 6. A left ankle disorder was not manifest during service and arthritis was not manifest within one year of separation. A left ankle disorder is unrelated to service. 7. A left ankle disorder is not caused or aggravated by a service-connected disease or injury. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for residuals, second degree burns, left ankle have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20, 4.118, Diagnostic Codes 7801, 7802, 7804, 7805. 2. Nerve or vascular damage of the left ankle/foot was not incurred in or aggravated by service and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. Nerve or vascular damage of the left ankle/foot is not proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. 4. Hypertension was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 5. Hypertension is not proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. 6. A left ankle disorder was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 7. A left ankle disorder is not proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1970 to July 1973. The issue of entitlement to service connection for drug and alcohol dependency was previously denied by the Board in an October 2019 decision. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims, resulting in a December 2020 Memorandum Decision remanding the matter back to the Board. Regarding the other issues on appeal, the Veteran requested a Central Office hearing in his Form 9 Substantive Appeal. He was scheduled for a March 2019 hearing but attempted to withdraw this request in February 2019. The record indicates that he did not appear at the March 2019 hearing. His request is considered withdrawn. 1. Entitlement to an initial compensable evaluation for residuals, second degree burns, left ankle Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). As explained below, the current uniform noncompensable evaluation is appropriate for the entire period. The Veteran's residuals, second degree burns, left ankle is evaluated as noncompensable under Diagnostic Code 7805. The Veteran has challenged the initial evaluation, effective September 4, 2009. Pursuant to Diagnostic Code 7805, disabling effects not considered in a rating provided under Diagnostic Codes 7800, 7801, 7802, and 7804 are to be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. Diagnostic Code 7800 refers specifically to scars of the head, face, or neck, and as a result, is not applicable. Diagnostic Code 7801 is specific to scars not of the head, face, or neck, that are associated with underlying soft tissue damage. As explained below, the medical evidence makes clear that there is no underlying soft tissue damage. As a result, 7801 is not applicable. Under Diagnostic Code 7802, a scar at a location other than the head, face, or neck that is superficial and that does not cause limitation of motion would have to have an area exceeding 144 square inches (929 square centimeters) to warrant a 10 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7802. A superficial scar is one that is not associated with underlying soft tissue damage. See 38 C.F.R. § 4.118, Diagnostic Code 7802, Note (1). Pursuant to Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent rating; three or four scars that are unstable or painful warrant a 20 percent rating; and five or more scars that are unstable or painful warrant a 30 percent rating. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1). Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable. See 38 C.F.R. § 4.118, Diagnostic Code 7804, (Note 3). During the pendency of the Veteran's appeal, 38 C.F.R. § 4.118 was amended, effective August 13, 2018. 83 Fed. Reg. 32,592 (July 13, 2018), revised, 83 Fed. Reg. 38,663 (Aug. 7, 2018). However, the amendment was specific to Diagnostic Code 7806 for dermatitis or eczema, which is not applicable to the Veteran's left ankle burn residuals. At an August 2011 VA peripheral nerves examination, the Veteran reported that his scar hurt all the time. When he walked his toes reportedly hurt. The examiner reported that the Veteran had to show exactly where the scar was because the examiner "kept having trouble detecting the boarders." The scar was measured as 14 centimeters long and between 7 to 9 centimeters wide. The scar was not painful on examination. There was no skin breakdown and it was "only a very superficial scar." There was no limitation of motion or function due to the scar. There was no inflammation, edema, or keloid formation. The scar was not adherent to the underlying tissue and there was no abnormal texture to the skin. There was no color change on the skin and there was no induration or inflexible areas. The examiner's ultimate impression was "[v]ery minimal evidence of scar on the left foot....I could detect no neurological damage or neuropathy to the foot itself." At an August 2012 VA scar examination, the examiner documented a superficial non-linear scar of 7 by 5 centimeters. There was "very minimal diminished pigmentation left lateral ankle region....Skin texture normal. Sensation normal. Nontender. Nonadherent. Not cosmetically significant. No joint effects." The examiner reported that the scar was not painful, there was not frequent loss of covering skin over the scar, and the scar was less than deep partial thickness. The scar was treated medically without the need for surgery, it healed, there is no breakdown, and "[n]o symptoms related to scar." The objective evidence reflects that the Veteran's service-connected residuals, second degree burns, left ankle has been manifested by a superficial, non-linear scar that is not painful or unstable. The Board notes the Veteran's reports of throbbing and pain on motion, but finds the medical evidence showing that there is no pain or relevant symptoms due to the scar to be significantly more probative. Clinical evaluation reveals that the scar is fully healed, does not adhere, and does not cause pain or any functional impairment. There is no pain on palpation of the scar and there is no evidence that it is unstable. As a result, a compensable evaluation under Diagnostic Code 7804 is not warranted. In addition, a compensable evaluation under Diagnostic Codes 7802 is not warranted, as the scar is significantly less than 929 square centimeters in total area. To the extent that there is pain on motion, there is no indication that such pain resulting from the scar amounts to a disabling effect under Diagnostic Code 7805. Any painful motion of the left foot or ankle is likely due to the Veteran's reported left ankle disorder, claimed as arthritis. The preponderance of the evidence is against the grant of a compensable disability rating for residuals, second degree burns, left ankle. Service Connection 2. Entitlement to service connection for nerve or vascular damage of the left ankle/foot, as secondary to residuals, second degree burns, left ankle 3. Entitlement to service connection for hypertension, as secondary to residuals, second degree burns, left ankle 4. Entitlement to service connection for a left ankle disorder, as secondary to residuals, second degree burns, left ankle The Veteran's primary assertion is that his claimed nerve or vascular damage of the left ankle/foot, hypertension, and left ankle disorder are secondary to service-connected residuals, second degree burns, left ankle. The Board will address both direct and secondary theories of entitlement to service connection. Veterans are entitled to compensation if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, a Veteran 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 -the so-called 'nexus' requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Organic disease of the nervous system, hypertension, and arthritis are identified as "chronic diseases" under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309 (a). Private treatment records indicate that the Veteran has hypertension. It is not evident that the Veteran has any left ankle neurological or nerve disorder, or arthritis of the left ankle. "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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim." 38 C.F.R. § 3.303 (b). Service treatment records document the June 1971 second degree burn to the Veteran's left ankle for which he is service connected. There are no other relevant complaints, objective findings, treatment, diagnosis, or any other manifestations of a left ankle nerve disorder, hypertension, or other left ankle disorder. At the Veteran's February 1973 discharge examination, all relevant systems were normal including the lower extremities, feet, musculoskeletal system, neurologic system, heart, and vascular system. In an accompanying Report of Medical History, the Veteran specifically denied foot trouble, neuritis, paralysis, arthritis, bone or joint deformity, high blood pressure, or any other relevant symptoms. As noted, private treatment records indicate that the Veteran has hypertension. It is not clear that the Veteran has been diagnosed with a specific nerve disorder of the left foot/ankle or another left ankle disorder. Even assuming that the Veteran does have such disorders (the Board makes no specific finding as to current disability), there is no evidence linking any of the claimed disorders to the Veteran's service. The Veteran has not submitted any private medical evidence showing a link between these claimed disorders and his service. The contemporaneous records establish that the claimed disorders (assuming each exists) manifested many years after separation. The Board finds the contemporaneous records to be far more probative and credible than any assertion of continuity and treatment. To the extent that the Veteran asserts these disorders began in service, such assertions are directly contradicted by his own specific denial of relevant symptoms upon separation, as well as the normal clinical evaluation. The Veteran did not have characteristic manifestations sufficient to identify the disease entities in service or within a year of separation. 38 C.F.R. § 3.303 (b). The evidence of record suggests that the Veteran's claimed disorders were manifest many years after service. Nothing at that time suggested a history dating back to service. There is no medical evidence of record documenting manifestations of the claimed disorders in service. The more probative evidence establishes that he did not have a nerve or vascular disorder of the left ankle, hypertension, or another left ankle disorder during service. Furthermore, the evidence establishes that the remote onset (assuming each exists) of such disorders is unrelated to service. The Board finds that the preponderance of the evidence is against the claims on a direct basis. As noted, the Veteran's primary assertion is that these disorders are secondary to service-connected residuals, second degree burns, left ankle. Service connection is warranted on a secondary basis for "disability which is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310 (a). Secondary service connection is also warranted for "[a]ny increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease." 38 C.F.R. § 3.310 (b). At an August 2012 VA examination, the examiner explained that the Veteran had a compressive neuropathy of the left leg not related to the service-connected burn scar. There were no vascular issues of the left foot or ankle upon examination. There was no neurovascular damage associated with the scar. The examiner concluded that the Veteran's claimed left ankle disorder and hypertension were not related to the service-connected scar. Specific to the service-connected scar, the examiner commented that it is very difficult to see and is not associated with deeper soft tissue injury and therefore would not cause any of the Veteran's neurological complaints. The examiner made clear that there was no possible relationship between the service-connected scar and the claimed disorders, as "the current scar would not lead to any of the alleged secondary conditions for the reason that it did not cause these problems initially and structure of scar today would not cause any of these conditions." The opinion makes clear that there is no possible relationship between the claimed disorders and the superficial and well-healed service-connected scar. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the August 2012 VA medical opinions that the Veteran's claimed disorders are less likely than not related to his service-connected burn scar as highly probative medical evidence on this point. The Board notes that the examiner rendered these opinions after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran's pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The Board has considered the relevant lay statements of the Veteran. The Veteran is competent to provide evidence of which he experiences, including his symptomatology and medical history. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is competent to report what he experienced. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, as a layperson, it is not shown that the Veteran possesses additional medical expertise to provide a medical opinion linking his claimed disorders to the service-connected left ankle burn scar. He is competent to relate what he has been told by a medical professional. However, he has not reported that a medical professional has linked his disorders to a service-connected disease or injury, and he has not provided any competent medical evidence suggesting a relationship. The VA examiner considered the Veteran's lay assertions, but ultimately found that the claimed disorders were not caused by or aggravated by his service-connected left ankle burn scar. The Board finds that the Veteran's lay statements are outweighed by the VA examiner's medical opinions as they were based on consideration of the Veteran's contentions, review of medical records, and medical expertise. We also note that the Veteran is service connected for additional disease and injury, specifically hepatitis C. However, there is no proof or allegation that hepatitis C caused or aggravated the claimed disorders. In the absence of some proof of a relationship, there can be no valid claim. The Board finds that the preponderance of the evidence is against a finding that the Veteran's claimed nerve or vascular damage of the left ankle/foot, hypertension, and left ankle disorder are directly related to service, may be presumed to be related to service, or in the alternative, are secondary to service-connected disease or injury, and the claims must be denied. REASONS FOR REMAND 1. Entitlement to service connection for drug and alcohol dependency, to include as secondary to residuals, second degree burns, left ankle is remanded. Pursuant to the December 2020 Memorandum Decision, remand is necessary in order to obtain a medical opinion addressing whether the initial pain and symptoms in the immediate aftermath of the in-service June 1971 left ankle burn caused the Veteran's drug and alcohol dependency, or any other relevant psychiatric disorder. The matters are REMANDED for the following action: 1. The record suggests that the Veteran is incarcerated. In completing the development directed below, please adhere to proper policy for scheduling incarcerated appellant's for VA examinations. 2. Schedule the Veteran for a VA examination to determine the etiology of the claimed drug and alcohol dependency or any relevant psychiatric disorder. If the Veteran is unable to attend the examination due to incarceration, obtain a medical opinion. Based on examination (if possible) and a review of the record, the examiner should: a) Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the claimed drug and alcohol dependency or any relevant psychiatric disorder is related to the Veteran's active service, to include the pain and symptoms experienced due to the in-service June 1971 left ankle burn. (b) Provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the claimed drug and alcohol dependency or any relevant psychiatric disorder was caused by or was aggravated by service-connected disease or injury. If service-connected disease or injury aggravates the claimed drug and alcohol dependency or any relevant psychiatric disorder, the examiner must identify the percentage of disability which is attributable to the aggravation. 38 C.F.R. § 3.310. A complete rationale for any opinion expressed should be provided in a report. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. R. Stephens, 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.