Citation Nr: 22016255 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 16-40 459 DATE: March 21, 2022 ORDER A rating in excess of 10 percent for residual scars from left long finger amputation is denied. REMANDED 1. Compensation under 38 U.S.C. § 1151 for left leg below the knee amputation. 2. Service connection for a psychiatric disorder. 3. Service connection for sleep apnea (SA). 4. An initial rating in excess of 10 percent for residuals of left long finger amputation and left ring finger fracture. 5. A total disability rating based on individual unemployability (TDIU). FINDING OF FACT The Veteran had two scars residual to left long finger amputation that were painful and stable. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for scars residual to left long finger amputation were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.118, Diagnostic Code (DC) 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1979 to September 1983. He died in February 2020 and the appellant is his surviving spouse. She was substituted to continue the appeal in August 2020. The case is on appeal from August 2012, November 2014, December 2015, and March 2016 rating decisions. In August 2019, the Veteran and the appellant testified at a Board hearing. Thereafter, in a December 2019 decision, the Board remanded these claims for additional development. At that time, the Board also dismissed five issues. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). A rating in excess of 10 percent for residual scars from left long finger amputation. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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. The Veteran's scars are rated under 38 C.F.R. § 4.118, DC 7804. Under DC 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; and five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118, DC 7804. Note (1) states an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) states 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) states scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under this DC, when applicable. In addition, DC 7805 instructs that any disabling effect(s) not considered in a rating provided under DCs 7800-04 under an appropriate DC. 38 C.F.R. § 4.118, DC 7805. The Board notes that changes were made to some DCs under 38 C.F.R. § 4.118 effective August 31, 2018, however, the relevant criteria for this disability are essentially the same for the periods both before and after August 31, 2018. 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 required for that rating. Otherwise, the lower rating will be 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 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Analysis The Veteran filed a claim for higher ratings for his service-connected residuals of left middle finger status post amputation in February 2012. He was afforded an examination for the scar related to this disability in June 2012. The examiner reported the presence of two scars related to this disability, one scar with an area of 6 centimeters (cms) by 5.5 cms and the second scar with an area of 2 cms by 2 cms. The examiner reported that both scars are painful, but denied that either of the scars is unstable. The examiner found that the scars result in difficulty with grip and lifting objects. The Board finds that a higher rating for the Veteran's left middle finger scar is not warranted. In this regard, the Veteran did not report, and the evidence does not show, that these scars are unstable or 929 square cms or greater in area. See 38 C.F.R. § 4.118, DCs 7802, 7804. In addition, while the Veteran also experienced difficulty with grip and lifting objects related to the scars, assigning a higher rating for these symptoms is improper as they are contemplated by the rating for residuals of left long finger amputation and left ring finger fracture under DC 5226 that is remanded below for additional development. See 38 C.F.R. § 4.14. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and a rating in excess of 10 percent for residual scars from left long finger amputation is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Although the Board is remanding other claims for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). REASONS FOR REMAND 1. Compensation under 38 U.S.C. § 1151 for left leg below the knee amputation. The Veteran contended that his left leg was amputated below the knee due to VA treatment. During the August 2019 Board hearing, the Veteran's representative stated that VA treatment providers did not provide proper care following left great toe amputation surgery in 2012. The Veteran's wife stated that she noticed a wound vac necessary for recovery from the toe surgery was not functioning for an entire day. The Veteran's wife also stated that a few days later VA physicians found an infection that required amputation of his left leg below the knee. The Veteran's VA treatment records show that he underwent amputation of his left great toe at a VA Medical Center (VAMC) on October 28, 2012. Subsequent treatment records show monitoring of the Veteran's left foot and use of a wound vac with a good seal in November 2012. On December 3, 2012, the surgical site was noted as not healing properly and for the presence of an infection. That day, the Veteran underwent left leg below the knee amputation. In August 2016, an opinion was obtained from a VA physician in regard to this claim. The physician found that the left leg amputation was not the result of result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault. In the December 2019 decision, the Board remanded this claim to obtain an independent expert medical opinion should be obtained pursuant to 38 U.S.C. § 5109. The RO obtained additional opinions in regard to this claim in June 2021 and September 2021. However, these opinions are not independent expert medical opinions obtained pursuant to 38 U.S.C. § 5109. In addition, the opinions do not address the specifics of the Veteran's medical condition. Therefore, another remand is required. Stegall v. West, 11 Vet. App. 268 (1998). 2. Service connection for a psychiatric disorder. The Veteran was found to experience a psychiatric disorder related to stroke complications. Therefore, the psychiatric disorder claim is remanded as intertwined with the 38 U.S.C. § 1151 claim on appeal. 3. Service connection for SA. The Veteran contended that he has SA due to service. During the August 2019 Board hearing, the Veteran reported experiencing the onset of sleep symptoms during service. He also reported that fellow service members told him that he snored loudly. The Veteran's wife reported that the Veteran did not snore prior to service, but snored loudly and would stop breathing while sleeping after his discharge. In February 2022, the Veteran's representative submitted a National Institute of Health (NIH) article discussing the nature and etiology of SA. The Veteran's service treatment records (STRs) do not show reports of, or treatment for, sleep symptoms. A September 1983 separation examination does not note the presence of sleep issues. The Veteran's VA treatment records show that he was diagnosed with moderate obstructive sleep apnea based on a November 2015 sleep study. Pursuant to the December 2019 Board remand, a medical opinion was obtained for this claim in June 2021. The examiner found that the Veteran's SA was less likely than not incurred in or caused by an in-service injury, event, or illness. While the examiner provided valuable information regarding the nature and etiology of SA, he did not apply these findings to the Veteran's circumstances. Therefore, a remand is warranted to obtain another opinion in regard to this claim. 4. An initial rating in excess of 10 percent for residuals of left long finger amputation and left ring finger fracture. The Veteran contended that he should have a higher initial rating for the service-connected residuals of left long finger amputation and left ring finger fracture. During the August 2019 Board hearing, the Veteran reported that he experienced tingling, numbness, and loss of sensation in his left hand. He also reported that he could not pick up objects with his left hand. The Veteran's wife reported that he could not lift or hold anything with his left hand and could not use it to put on clothes. The Veteran's representative stated that the Veteran should be rated as having ankylosis of all four left hand fingers due to this disability. The Veteran was afforded an examination in regard to his left hand disability and scars in June 2012 and in regard to his left hand in February 2017. The December 2019 Board decision remanded this claim to afford the Veteran another examination in regard to this claim based on the Veteran's reports that the condition worsened since the February 2017 examination. Unfortunately, the Veteran died before another examination could be performed. The RO obtained an opinion in regard to this claim in June 2021, however, the examiner found it is impossible to determine the severity of this condition without a current physical examination. The Board finds that a remand is necessary to obtain an opinion as to whether the Veteran's reported neurologic symptoms of tingling, numbness, and loss of sensation in his left hand were due to the service-connected condition. 5. A TDIU. The TDIU claim is also remanded as it is intertwined with the remanded increased rating claim. These claims are REMANDED for the following actions: 1. Obtain an independent medical expert opinion, from a specialist in orthopedic surgery if possible, pursuant to 38 U.S.C. § 5109. The claims file should be made available to and reviewed by the designated independent medical expert. The expert should provide medical opinions as to the following inquiries: (a.) Based on the Veteran's and his wife's statements and the VA medical records, state whether it is at least as likely as not that the left leg below the knee amputation was caused by VA's October 2012 surgical treatment of the Veteran's left great toe and subsequent postoperative care. (b.) If a relationship between the left leg below the knee amputation and VA's treatment of the Veteran is shown, provide an opinion as to whether it is as likely as not that the additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA; (c.) If a relationship between the left leg below the knee amputation and VA's treatment of the Veteran is shown, also provide an opinion as to whether it is as likely as not the result of an event not reasonably foreseeable. An event not reasonably foreseeable is one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. A rationale should be offered for opinions expressed. 2. Also, obtain another opinion from an appropriate medical professional to determine the nature and etiology of the sleep apnea. The claims file should be made available to and reviewed by the examiner. The examiner should then state whether it is at least as likely as not that the sleep apnea had its onset during service or was otherwise related to service. If the examiner cannot provide requested opinion, he or she should explain whether it is due to the limitation of the examiner's knowledge or a limitation of the knowledge in the medical community at large. A rationale should be offered for opinions expressed. 3. Also, obtain another opinion from an appropriate medical professional to determine the nature, etiology, and severity of the Veteran's left upper extremity neurologic symptoms. The claims file should be made available to and reviewed by the examiner. The examiner should then state whether it is at least as likely as not as the Veteran's reported left hand tingling, numbness, and loss of sensation was caused or aggravated by the service-connected residuals of left long finger amputation and left ring finger fracture. The examiner is also asked to describe such impairment as mild, moderate, severe, or complete. If there are overlapping symptoms among multiple nerves, the examiner should identify to the extent possible the impaired nerve that was most analogous to the Veteran's symptoms. If the examiner cannot provide requested opinion, he or she should explain whether it is due to the limitation of the examiner's knowledge or a limitation of the knowledge in the medical community at large. A rationale should be offered for opinions expressed. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Jimerfield 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.