Citation Nr: 22014471 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 17-24 430 DATE: March 14, 2022 ORDER Entitlement to service connection for a left eye disorder, to include residuals of a left eye injury and scar, is denied. Entitlement to a compensable evaluation for surgical scars of the left lateral knee and upper anterior knee is denied. Entitlement to an evaluation in excess of 10 percent for a lower anterior left knee scar is denied. FINDINGS OF FACT 1. The Veteran has not been shown to have a left eye disorder. 2. The Veteran has one scar on the lower anterior left knee that is painful, but not unstable. 3. The Veteran has two other left knee scars that are not painful or unstable. 4. The Veteran's three left knee scars are stable, do not measure at least 12 square inches, do not affect an area or areas 144 square inches (929 sq. cm.), and do not cause any limitation of motion or function. CONCLUSIONS OF LAW 1. A left eye disorder was not incurred in active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an evaluation in excess of 10 percent for a surgical scar on the lower anterior left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.118, Diagnostic Code 7804. 3. The criteria for a compensable evaluation for scars on the left lateral knee and left upper anterior knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 2004 to April 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held before the undersigned Veterans Law Judge in May 2020. A transcript of that hearing has been associated with the record. The Board remanded the case in September 2020 for additional development. That development has been completed, and the case has since been returned to the Board for appellate review. The Board also notes that the appeal had originally included the issues of entitlement to service connection for migraine headaches and left lower extremity sciatica. However, the AOJ granted service connection for those disorders in March 2021 and July 2021 rating decisions. The AOJ's grant of those benefits constitutes a full award of the benefits sought on appeal. Therefore, those issues are no longer on appeal before the Board. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with regard to the issues decided herein. 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) (applying Scott to a duty to assist argument). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, 37312 (Fed. Cir. Dec. 17, 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to service connection for a left eye disorder. The Veteran's service treatment records document a left eye injury in January 2008. Specifically, it was noted that he had been poked in the eye while playing basketball, and he was diagnosed with a corneal abrasion, which was treated with topical medication. A May 2008 VA examination showed that the Veteran's left eye had healed without residual symptoms, and no current diagnosis was identified because examiner indicated that there was no pathology to render one. A physical examination was normal with no changes in vision, and the examiner stated that any symptoms had all resolved. It was also noted that the Veteran was not currently receiving any treatment for his left eye. An October 2008 VA treatment record shows that the Veteran complained of some continued left eye blurring. The treatment provider was unable to visualize a corneal abrasion, but it was noted that there was no fluorescein dye available. A June 2009 VA treatment record also shows that the Veteran sought treatment with complaints of intermittent headaches and some blurred vision for six months. The Veteran continued to complain of pain behind the left eye and blurry vision. He was later referred to an ophthalmologist in June 2014, who noted the history of a left eye injury during service. However, the ophthalmologist found no signs of prior ocular trauma, and a physical examination was within normal limits. The Veteran was afforded a VA examination in May 2015 at which time he continued to report having blurred vision. However, the examination was normal with no scarring. The examiner found no eye conditions, including any corneal conditions, and stated that there was no pathology to render a diagnosis. He indicated that any previous left eye condition had resolved and that there was no medical evidence of a left eye disorder. During the May 2020 hearing, the Veteran testified that he had continuing problems with his left eye after his separation from service in April 2008. He indicated that he was not currently being treated for his left eye, but stated that he was told that he has a residual scar as a result of the injury to his left eye in service. The Veteran was provided another VA examination in January 2021 during which the examiner noted the history of a corneal abrasion in 2008 and the Veteran's report of ongoing irritation and blurry vision. The Veteran indicated that those symptoms do not generally affect his daily activities. A physical examination was normal with 20/20 or better vision in both eyes, and the examiner did not find any evidence of scarring or a corneal condition. Both external and internal eye examinations were normal. The examiner stated that the condition had resolved and that there was no current diagnosis of a left eye disorder. He also stated that there was no functional impact due to an eye disorder. In addition, a March 2021 VA examiner found that the Veteran had changes in his vision associated with headaches. He is already service-connected for migraine headaches with a left eye injury for which he is currently assigned a 50 percent evaluation. Based on the foregoing, the medical evidence of record does not show that the Veteran has had a current left eye disorder during the pendency of the appeal. Nor has the Veteran reported any functional impairment resulting from his reported symptoms. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). See, e.g., January 2021 VA examination report (reporting that the alleged left eye symptoms do not impact his daily activities, and the examiner found no functional impact). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has a disability for which benefits are claimed. In rendering this determination, the Board has also considered the Veteran's lay statements regarding left eye pain, blurred vision, and scarring. Although laypersons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case - whether there is a current diagnosis that can be related to service - falls outside the realm of common knowledge of a lay person, particularly in light of the internal medical processes involved, diagnostic testing needed even by medical professionals, and his migraine headaches. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, even assuming the Veteran's lay assertions regarding a diagnosis or etiology are competent, the Board nevertheless finds the VA medical opinions to be more probative, as they are based on a review of the record, an examination, and the examiners' own medical expertise, training, and knowledge. The examiners also supported their conclusions with rationale. For these reasons, the Board finds that the evidence persuasively weighs against the claim for service connection for a left eye disorder. Therefore, the Board finds that service connection is not warranted. Increased Evaluation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 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. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. The Veteran is currently assigned a noncompensable evaluation for surgical scars of the left lateral knee and upper anterior knee pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7805. He is also assigned a separate 10 percent evaluation for the lower anterior left knee scar pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7804. The Board notes that, during the pendency of the appeal, the rating criteria for evaluating a skin disorder under 38 C.F.R. § 4.118 was amended effective August 13, 2018. 83 Fed. Reg. 32593 (July 13, 2018). Diagnostic Code 7805, for other scars, states that a separate rating may be warranted under the appropriate code for any disabling effects not considered under Diagnostic Codes 7800-7804. Diagnostic Code 7800 pertains to burn scars, scars due to other causes, or disfigurement of the head, face, or neck. As the scars in this case are located on the Veteran's knee, this diagnostic code is not applicable. Diagnostic Code 7801 pertains to burn scars or scars due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. Prior to the August 2018 amendments, Diagnostic Code 7801 applied to burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear. Under Diagnostic Code 7801, a 10 percent rating is warranted for area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). A 20 percent rating is warranted for area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.). A 30 percent rating is warranted for area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.). A 40 percent rating is warranted for area or areas of 144 square inches (929 sq. cm.) or greater. Diagnostic Code 7802 provides a 10 percent evaluation for burn scars or scars due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage and involve an area or areas of 144 square inches (929 sq. cm.) or greater. Prior to the August 2018 amendments, Diagnostic Code 7801 applied to burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear. Notes (1) and (2) found under Diagnostic Code 7801 are also applicable to Diagnostic Code 7802. Note (1) provides that for the purposes of Diagnostic Codes 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Note (2) provides that a separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body. Combine the separate evaluations under § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. Under Diagnostic Code 7804, 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 maximum 30 percent rating is warranted for five or more scars that are unstable or painful. There are three notes associated with 38 C.F.R. § 4.118, Diagnostic Code 7804. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) states that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) indicates that scars evaluated under diagnostic codes 7800, 7801, 7802, and 7805 may also receive an evaluation under this diagnostic code, when applicable. In this case, a May 2015 examiner noted a history of a left knee meniscectomy in 2006, leaving a scar measured as 4 x 1 centimeters. The scar was not painful or unstable. During the May 2020 hearing, the Veteran testified that his left knee scar was painful and sensitive to touch, but he indicated that it was not unstable. He also stated that the scar's appearance had remained the same. A December 2020 VA examiner identified three separate scars on the left knee, measuring 4 x 1 cm., 2 x 1 cm., and .8 x .8 cm. The approximate combined total area in centimeters squared for the left knee was 7 x 3 cm. Only the 4 x 1 cm. scar on the lower anterior left knee was described as painful. None of the scars were unstable with frequent loss of covering of skin over the scar. Nor did any of the scars result in limitation of function, to include limitation of motion. There were no other pertinent physical findings, complications, or symptoms associated with any scar. The examiner also found that there was no functional impact due to the Veteran's left knee scars. Upon review, the Board notes that the Veteran's surgical scar of the lower anterior left knee is painful, which is contemplated in the currently assigned 10 percent evaluation under Diagnostic Code 7804. However, there is no indication that any of his scars are unstable, and his two other knee scars were found to be not painful. As such, the Veteran does not have a scar that is both painful and unstable or three or four scars that are unstable or painful. Thus, an increased evaluation is not warranted under Diagnostic Code 7804. In addition, the Veteran does not have a scar that is deep and nonlinear or that is associated with underlying soft tissue damage, measuring at least 12 square inches but less than 72 squares inches. As such, a higher evaluation is not warranted under Diagnostic Code 7801. The Veteran's scars also do not involve an area or areas of 144 square inches (929 sq. cm.) or greater. Moreover, the maximum evaluation under Diagnostic Code 7802 is 10 percent. Thus, a higher evaluation cannot be granted under that diagnostic code. Additionally, there is no evidence of any other disabling effects as contemplated under Diagnostic Code 7805. In fact, the December 2020 VA examiner noted that there were no other pertinent physical findings, conditions, complications, signs, and/or symptoms, and there was no functional impact. As such, an evaluation in excess of 10 percent is not warranted under Diagnostic Code 7805. Based on the foregoing, the Board finds that the evidence weighs against entitlement to an increased evaluation for the Veteran's left knee surgical scars. 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, 368 (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). J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote 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.