Citation Nr: 22014382 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 20-00 996 DATE: March 12, 2022 ORDER A compensable rating for scar, status/post umbilical hernia surgery is denied. A compensable rating for pseudofolliculitis barbae (PFB) is denied. Service connection for lump on left side of body is denied. New and material evidence having not been received, the application to reopen the claim for service connection for right flail hip joint disorder is denied. New and material evidence having not been received, the application to reopen the claim for service connection for left flail hip joint disorder is denied. New and material evidence having not been received, the application to reopen the claim for service connection for sleep apnea is denied. New and material evidence having not been received, the application to reopen the claim for service connection for dental surgery with bone loss is denied. REMANDED A rating in excess of 20 percent for lumbar spine degenerative disease status/post fusion L4-5. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU). FINDINGS OF FACT 1. The Veteran served on active duty from May 1986 to November 2009. 2. The status/post umbilical hernia scar is not tender, painful or unstable, nor does it result in any limitation of function. 3. PFB is manifested by subjective complaints of bumps; objective findings include no treatment, no scarring or disfigurement, and PFB does not cover at least 5 percent of the entire body or exposed areas affected. 4. A lump on the left side of the Veteran's body was not shown in service and is not causally or etiologically related to service. 5. Service connection for right and left flail hip joint pain was denied in an unappealed April 2016 rating decision. 6. Service connection for sleep apnea was initially denied in an unappealed March 2012 rating decision and requests to reopening of the claim were denied in unappealed November 2013 and April 2016 rating decisions. 7. Evidence received since the April 2016 rating decision is cumulative or redundant of the evidence previously of record and is not sufficient to raise a reasonable possibility of substantiating the underlying claims of entitlement to service connection for right and left flail hip joint disorder and sleep apnea. 8. Service connection for a dental disorder for dental treatment purposes was denied in an unappealed March 2010 rating decision and service connection for a dental disorder for compensation purposes was denied in an unappealed March 2012 rating decision. 9. Evidence received since the March 2010 and March 2012 rating decisions is cumulative or redundant of the evidence previously of record and is not sufficient to raise a reasonable possibility of substantiating the underlying claim of entitlement to service connection for a dental disorder. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for scar, status/post umbilical hernia surgery have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.59, 4.118, Diagnostic Code (DC) 7805 (2021). 2. The criteria for a compensable rating for PFB have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.130, DC 7899-7813 (2021). 3. A lump on left side of body was not incurred during service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2021). 4. The March 2010 rating decision, which denied service connection for a dental disorder for treatment purposes and the March 2012 rating decision, which denied service connection for sleep disorder and a dental disorder for compensation purposes, are final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2021). 5. The November 2013 rating decision, which denied reopening the claim service connection for sleep apnea and the April 2016 rating decision, which denied service connection for right and left flail hip joint pain and denied reopening of the claim for service connection for sleep apnea, are final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2021). 6. Evidence submitted to reopen the claims of entitlement to service connection for right and left hip flail joint disorder, sleep apnea, and a dental disorder, is not new and material, and the claims are not reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These matters are before the Board on appeal of a June 2017 rating decision by the Regional Office (RO). The Veteran timely appealed the decision under the "legacy" system. In March 2021, he submitted a VA Form 10182 attempting to appeal his case under the Appeals Modernization Act (AMA). That same month, VA informed him that the VA Form 10182 identified issues that were no longer appropriate for processing under the AMA system because he had not submitted the form in a timely manner in order to opt into the AMA system and he was informed that his appeal would remain under the "legacy" system. In March 2021, the Veteran testified at a hearing held before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Increased Rating Claims Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Umbilical Hernia Surgery Scar The Veteran's scar is rated as noncompensable pursuant to DC 7805. The Board will consider all relevant diagnostic codes. Under the relevant regulations, a compensable rating will be warranted when the evidence shows: a deep and nonlinear scar not of the head, face, or neck due to burns or other causes that has an area or areas of at least 6 square inches (sq. in.) (39 sq. cm.), but less than 12 sq. in. (77 sq. cm.) (10 percent under DC 7801); a superficial and nonlinear scar not of the head, face, or neck due to burns or other causes that has an area or areas of 144 sq. in. (929 sq. cm.) or greater (10 percent under DC 7802); or one or two scars that are unstable or painful (10 percent under 7804). At the hearing, the Veteran testified that he experienced no symptoms related to the umbilical hernia surgery scar. He only indicated that he did not like it. An August 2019 VA examiner reflected that the Veteran's umbilical hernia scar was fully healed and was not painful or unstable. The scar measured 5 cm by 0.2 cm. The examiner further noted that the scar was not due to burns and determined that it was superficial and non-linear. The examiner indicated that the scar did not result in limitation of function or impact the Veteran's ability to work. Clinical records do not reflect findings inconsistent with the examination. Based on the above, a compensable rating is not warranted. In this regard, the scar was not painful or unstable and did not have a total area greater than 39 sq. cm. Accordingly, the medical evidence does not support a compensable rating for the umbilical hernia scar. Pseudofolliculitis Barbae PFB is assigned a noncompensable rating under DC 7899-7806. DC 7806 for dermatitis or eczema has been used to evaluate the current rating. In order to warrant a higher rating under either DC 7806 or under DC 7800 for disfigurement of the head, face, or neck, the evidence must show: disfigurement of the head, face, or neck with one characteristic of disfigurement, the eight characteristics being scars 5 or more inches (in.) in length; scars at least one-quarter in. wide at the widest part; surface contour scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyperpigmented in an area exceeding six square inches (sq. in.); skin texture abnormal in an area exceeding six sq. in.; underlying skin tissue missing in an area exceeding six sq. in.; or skin indurated and inflexible in an area exceeding six sq. in. (10 percent under DC 7800); dermatitis or eczema covering at least 5 percent, but less than 20 percent, of the entire body or exposed areas; (10 percent under DC 7806); or, dermatitis or eczema requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past twelve-month period (10 percent under DC 7806). Turning to the medical evidence, a February 2012 VA examiner diagnosed the Veteran with PFB; however, an August 2019 examiner did not diagnose PFB. The August 2019 examiner noted that prior examination indicated that the Veteran reported papules in the beard region after shaving with a disposable razor in 1993. It was noted that he received a shaving waiver, and that he currently used an electronic shaver. The examiner opined that the condition had since resolved. On examination there were no papules on no residual scarring. The examiner indicated that there was no exposed area affected and none of the total body area was affected by PFB. The Veteran's service-connected PFB disability has not manifested scarring or disfigurement during the appeal period. Thus, it is rated as dermatitis or eczema under DC 7806. Based on the above, the medical evidence does not support a compensable rating. In this regard, the evidence does not show that the Veteran has required treatment for PFB. Further, the August 2019 VA examiner, in response to the question to indicate the approximate total body area and approximate total exposed body area affected on current examination, reported that the Veteran did not have any of the listed visible skin conditions, including PFB, and as such, no body area was affected. Therefore, the medical evidence shows that PFB has not required treatment, has not resulted in scarring or disfigurement, and does not cover at least 5 percent of the entire body or exposed areas affected. As such, the medical evidence does not support a compensable rating. Service Connection for Lump on Left Side of Body Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The Veteran claims that service connection is warranted for a lump on the left side of his body. He testified that he had a lump on the left side of his body in service. He further testified that the lump on the left side of his body is painful. A review of the service treatment records (STRs) does not reflect any complaint or finding of any mass/lump on the left side of the body. The separation Report of Medical History does not note any such complaint or finding. The post-service treatment records do not reflect any relationship between any current lump on the left side of the body and service and there is no other indication of any nexus in the record apart from the Veteran's own statements. The Board notes that an August 2019 VA skin examiner identified the presence of a keloid scar in the general region referred to for this claim (left lumbar region). However, the Veteran is already in receipt of service connection for a lumbar spine disorder, which includes lumbar scars. As such, granting service connection for a lump in this area, which appears to be this already service-connected keloid scar, is not warranted as it is already service-connected. Based on the above, the medical evidence does not support the claim and there is no basis on which to grant service connection. The Board has considered the Veteran's lay statements that the lump on his left side was caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. While he is competent to report the presence of a lump, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements, and the medical evidence suggests only that the lump he is referring to is an already service-connected lumbar scar. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. New and Material Evidence to Reopen Claims Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C.§ 5108; 38 C.F.R. § 3.156. "New" evidence means evidence "not previously submitted to agency decisionmakers." "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim." 38 C.F.R. § 3.156(a). Service connection for a dental disorder for treatment purposes was denied in March 2010 because the Veteran did not meet the required criteria. He did not file a notice of disagreement (NOD) and new and material evidence was not received within one year of the rating action. Therefore, the March 2010 rating decision became final. In March 2012, the claim for service connection for a dental disorder for compensation purposes was denied because the Veteran did not meet the required criteria. The March 2012 rating decision also denied service connection for sleep apnea because there was no evidence of a nexus to service. He did not file an NOD and new and material evidence was not received within one year of the rating action. Therefore, the March 2012 rating decision became final. Reopening of the claim for service connection for sleep apnea was denied in November 2013 on the basis that new and material evidence had not been received. The Veteran did not file an NOD and new and material evidence was not received within one year of the November 2013 rating action. Therefore, the November 2013 rating decision became final. Thereafter, in April 2016 decision, reopening of the claim for service connection for sleep apnea was again denied because new and material evidence had not been submitted. The RO also denied service connection for right and left flail hip joint disorder because there was no evidence of any right or left flail hip joint disorder related to service. The Veteran did not file an NOD and new and material evidence was not received within one year of the rating action. Therefore, the April 2016 rating decision became final. The evidence added to the record since the last final rating decisions discussed above does support the Veteran's various claims for service connection and does not pertain to any missing element(s) in the prior decisions denying the claims. Indeed, at the hearing before the undersigned, he testified that he did not have any new and material evidence regarding these claims. As such, while the record contains evidence which is new because it was not considered previously, it is not material as it does not present a reasonable possibility of substantiating the claims. Therefore, the claims are not reopened and the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). REASONS FOR REMAND At the hearing before the Board, the Veteran testified that his service-connected back disorder had worsened since the last examination in August 2019. As such, a remand for a new VA examination is necessary. Further, the Veteran testified that he was unemployable due to his service-connected back disability. Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board has jurisdiction over a TDIU claim raised in connection with an increased rating claim regardless of whether a TDIU was addressed by the agency of original jurisdiction (AOJ). As such, the Board has added the issue ot the current appeal and remands it for appropriate action by the AOJ. The matters are REMANDED for the following actions: 1. Send the Veteran a letter satisfying the duty to notify and duty to assist provisions with respect to the claim of entitlement to a TDIU. 2. Send the Veteran a VA Form 21-8940 and request that he complete it and submit it. 3. Obtain copies of all outstanding VA treatment records. 4. Schedule the Veteran for an examination to assess the current severity of his service-connected back disability. The claims file must be made available to the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner is asked to provide an opinion regarding all functional impairment caused by the service-connected back disability, particularly as it relates to employability. 5. Adjudicate the issue of entitlement to a TDIU. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Redman, 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.