Citation Nr: 22017524 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-49 535 DATE: March 25, 2022 ORDER A 10 percent disability rating, but no higher, is awarded for service-connected scar, under left eyebrow, is granted. Entitlement to service connection for a chronic headache condition, claimed as blunt force trauma to the head, is granted. Entitlement to service connection for residuals of a right shoulder injury is granted. Entitlement to service connection for residuals of a left shoulder injury is granted. Entitlement to service connection for left foot arthritis is granted. REMANDED Entitlement to service connection for a right hand condition is remanded. Entitlement to service connection for a left hand condition is remanded. Entitlement to service connection for visual disturbance to left-sided vision as secondary to service-connected scar above the left eye. FINDINGS OF FACT 1. The Veteran's scar, under left eyebrow is painful without any additional characteristics of disability. 2. Resolving reasonable doubt in the Veteran's favor, his chronic headache condition is related to his in-service car accident. 3. Resolving reasonable doubt in the Veteran's favor, his right and left shoulder disabilities are related to his in-service car accident. 4. Resolving reasonable doubt in the Veteran's favor, his left foot arthritis is related to his in-service car accident. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 10 percent disability rating for service-connected scar, under left eyebrow, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.14, 4.118, Diagnostic Code (DC) 7800. 2. The criteria for entitlement to service connection for a chronic headache condition, claimed as blunt force trauma to the head, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for entitlement to service connection for residuals of a right shoulder injury have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. The criteria for entitlement to service connection for residuals of a left shoulder injury have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 5. The criteria for entitlement to service connection for left foot arthritis have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from March 1968 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision, an April 2017 rating decision, and a February 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota (Agency of Original Jurisdiction (AOJ)). The Veteran testified at a Travel Board hearing before the undersigned in August 2021. A transcript of the proceeding is of record. The Board notes that VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of an increased rating claim for the primary disability. See Bailey v. Wilkie, 33 Vet. App. 188 (2021); Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019); 38 C.F.R. § 3.155(d)(2) (stating that VA will consider all lay and medical evidence in order to adjudicate entitlement to benefits for the claimed condition as well as entitlement to any additional benefits for complications of the claimed condition, including those identified by the rating criteria for that condition in 38 CFR Part 4, Schedule for Rating Disabilities). An October 2021 opinion indicated that the Veteran's service-connected scar above his left eye caused occasional visual disturbance to his left-sided vision. Pursuant to applicable law, the Board has listed this issue as a claim on appeal. The Board further notes that, after the AOJ last adjudicated the claim, additional VA records were added to the claims folder. These records are not pertinent to any disposition in this case. Increased Ratings 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 percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 12627 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, 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); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 1. Entitlement to a compensable disability rating for service-connected scar, under left eyebrow Each of the Veteran's service-connected scars are evaluated pursuant to 38 C.F.R. § 4.118, DCs 7804 and 7805. The Board acknowledges that the rating criteria for the skin were amended, effective August 13, 2018. VA's intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 13, 2018). These amendments do not affect the substantive criteria under DC 7800, under which this Veteran's scars have been evaluated. Under the amendments, the phrase "(including linear scars)" was replaced with "and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, or 7804." 38 C.F.R. § 4.118, DC 7805 (August 13, 2018). Scars of the head, face, and neck are rated under DC 7800. Under DC 7800, a 10 percent rating is warranted for scars with one characteristic of disfigurement. A 30 percent rating is warranted for scars with two or three characteristics of disfigurement, or where there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes, ears, cheeks). A 50 percent rating is warranted for scars with four or five characteristics of disfigurement, or where there is visible or palpable tissue loss and gross distortion or asymmetry of two features or paired sets of features. A maximum schedular 80 percent rating is warranted where there are six or more characteristics of disfigurement, or where there is visible or palpable tissue loss and gross distortion or asymmetry of three or more features or paired sets of features. There are eight characteristics of disfigurement for the purposes of DC 7800. These are: a scar five or more inches (13 or more centimeters) in length; a scar at least one-quarter inch (0.6 centimeters) wide at the widest part; a scar with surface contour elevated or depressed on palpation; a scar that is adherent to underlying tissue; a scar with hypo- or hyper-pigmented skin in an area exceeding six square inches (39 square centimeters); a scar with abnormal skin texture, such as irregular, atrophic, shiny, or scaly skin, in an area exceeding six square inches (39 square centimeters); a scar with underlying soft tissue missing in an area exceeding six square inches (39 square centimeters); and a scar with skin indurated and inflexible in an areas exceeding six square inches (39 square centimeters). Painful and/or unstable scars are rated under DC 7804. A 10 percent rating is warranted for one or two scars that are painful or unstable. A 20 percent rating is warranted for three or four scars that are painful or unstable. A 30 percent rating is warranted for five or more scars that are painful or unstable. If one or more scars are both painful and unstable, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. Here, the Board finds that DC 7804 is also applicable to the Veteran's scar, under left eyebrow. He credibly testified during his August 2021 hearing that while he does not experience pain related to his forehead scar, he does experience pain associated with the scar above his left eye. He testified that it is painful, itchy, and sore to the touch. He did, however, acknowledge that it does not open up or bleed. These are assertions the Veteran in his VA Form 9 as well. The Board acknowledges that during the Veteran's May 2016 VA examination for his scars, he did not endorse that either scar was painful. Nonetheless, he credibly testified that at least one of them experiences pain. Resolving reasonable doubt in his favor, the Board will grant a 10 percent disability rating for the Veteran's scar pursuant to 38 C.F.R. § 4.118, DC 7804. The lay and medical evidence does not reflect any other characteristics of disability. The Veteran himself described his scars as "barely noticeable." However, as noted in the INTRODUCTION, the Board is developing a service connection claim for visual disturbance as due to service-connected left eye scar. This potential aspect of disability is addressed in the REMAND following this decision. Service Connection Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303. 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). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature." Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). A claimant bears the evidentiary burden to establish entitlement to the benefit sought. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). 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(b). The benefit of the doubt applies when the evidence for and against is in "approximate balance" or "nearly equal," but does not apply when the evidence persuasively favors one side or the other. Lynch v. McDonough, _ F4th_, 2021 U.S. App. LEXIS 37307, 2021 WL 5983923 (Fed. Cir. Dec. 17, 2021) (en banc). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. §§ 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 2. Entitlement to service connection for a chronic headache condition, claimed as blunt force trauma to the head The Veteran contends that he suffers residuals from blunt force trauma to the head that occurred during his active duty service. He was involved in a car accident in June 1968 while he was home on leave. During the accident, he was reportedly thrown forward and hit the windshield. He testified that he initially "blacked out" following the accident, but awoke some time later and was able to make it to a nearby house where he called an ambulance. During the August 2021 hearing, the Veteran testified that as a result of this car accident, he suffers from residuals due to the blunt force trauma he suffered when his head hit the windshield. He claims that since June 1968, he suffers from headaches that can be debilitating at times. Headaches are lay observable, so the Veteran is competent to claim he has experienced them since this time. Layno v. Brown, 6 Vet. App. 465 (1994). The evidence of record supports the finding that the in-service event alluded to by the Veteran did, in fact, happen. In support of his claim, the Veteran submitted a number of notarized lay statements from friends that reported his involvement in a car accident in June 1968. One such letter also described the injuries he sustained, which included his head, left eye, shoulders, ribs, lower back, hips, left ankle, and left foot. Additionally, he submitted what appears to be a newspaper notice of legal action being brought by the Veteran against someone (whom he identified as the driver of the vehicle) stemming from an automobile accident on June 16, 1968. Court documents from this lawsuit were also associated with the file. The Board accepts the authenticity of the automobile accident as an in-service event. The Veteran has not received a VA examination for his headache condition; as such, no VA etiology opinion is of record. In October 2021, however, the Veteran submitted an opinion from a doctor of internal medicine, Dr. F.M., who opined that the Veteran's "brain injury" was caused by or a direct result of the automobile accident that occurred on June 16, 1968. He stated, "[the Veteran] suffered a traumatic brain injury during the case accident. He has had persistent [headaches] since his service in the Marines. This was related to the accident above." As noted above, the Board has recharacterized the Veteran's claimed blunt force trauma as a headache condition. The Board accepts this positive etiology opinion as it relates to the Veteran's chronic headache condition and shall grant his claim for service connection. 3. Entitlement to service connection for residuals of right and left shoulder injuries The Veteran contends that he suffers from a right and left shoulder condition that is etiologically related to the in-service car accident mentioned above. The Board has already accepted this incident as a qualifying in-service event for service connection purposes. He reports that following the car accident, he developed bursitis in his shoulders and it bothers him intermittently, but he has not received treatment for this condition in the past 10 years, making it highly probable any treatment records as it pertains to this condition were destroyed. A review of the record reveals that the Veteran has a current right shoulder condition. He was provided with a VA examination for his right shoulder in January 2018. At that time, he was diagnosed with acromioclavicular joint osteoarthritis of the right shoulder. These findings were discovered via imaging that took place contemporaneously to the examination. The examiner who performed his VA examination, however, opined it was less likely than not that the Veteran's right shoulder condition was incurred in or caused by the in-service car accident. He rationalized, "[Service treatment records] (STRs) document that the Veteran complained of pain in the right upper arm on [December 12, 1969], especially when cold. However, there is no mention of more proximal pain in the actual shoulder joint, such as the acromioclavicular joint, where the Veteran currently has mild degenerative arthritis. Review of medical records subsequent to discharge from active duty is silent for a right shoulder condition for over 45 years until recently." Thereafter, the Veteran submitted an opinion from Dr. F.M. as it relates to his shoulder condition. Dr. F.M. opined it was "most likely caused by or a result of" the automobile accident that occurred in June 1968. He rationalized that the Veteran was thrown forward during the accident and penetrated the windshield, which reportedly injured his head, hands, and shoulders. The Board finds that there is an approximate balance of positive and negative evidence as it relates to the Veteran's claim for entitlement to service connection for right and left shoulder conditions. Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir., Dec. 17, 2021) (en banc). As such, the Board will grant entitlement to service connection for right and left shoulder conditions. 4. Left foot arthritis The Veteran claims that he injured his left foot during the June 1968 car accident when he kicked out the car door. He testified during his hearing his foot was placed in a cast, but his STRs are silent for any mention of a left foot injury or subsequent treatment after returning from leave. A review of the file reveals that the Veteran received an x-ray of his left foot in 2015. The findings of this imaging revealed that the talus was angled medially in orientation, that the calcaneal pitch was decreased, and that he had mild degenerative changes. An October 2021 medical examiner opined that the Veteran's left foot arthritis is a residual of his motor vehicle accident in 1968. The Board finds that there is an approximate balance of positive and negative evidence as it relates to the Veteran's claim for entitlement to service connection for left foot arthritis. Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir., Dec. 17, 2021) (en banc). As such, the Board will grant entitlement to service connection for left foot arthritis. REASONS FOR REMAND Regrettably, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the issues on appeal, in order to afford the Veteran every possible consideration. 1. Entitlement to service connection for a right hand condition is remanded. 2. Entitlement to service connection for a left hand condition is remanded. The Veteran believes that he has a right and left hand condition that is etiologically related to his active duty service. Specifically, he cites to an incident that occurred while he was in the Marines stationed at Camp Lejeune: he was working on a Jeep when the hood came down on his hands. He testified that he is receiving treatment for his hands at VA. He was provided braces, but he only needs them when the weather is cold. STRs from November 1970 document the event mentioned by the Veteran; however, these records only note that his left hand was reported injured and make no reference to his right hand. A note from May 1970 did record that the Veteran sustained a half-inch laceration to the top of his hand, though. Notably, CAPRI VA treatment records dated January 2016 documented that the Veteran knocked his hand against some wood, which caused cellulitis on his right hand and subsequently developed a lump that was deemed to be a sesamoid or neuroma. A January 2018 record noted the Veteran's report of bilateral thumb pain with locking of his hands. Examination described arthritic changes in both hands with obvious CMC joint arthritic involvement. The Veteran was prescribed splints based on a diagnosis of symptoms consistent with early arthritic condition of the hand joints especially thumb CMC arthritis. The Veteran reports that one examiner told him that he has a trigger finger. Following a January 2018 VA examination for the Veteran's hands (which only diagnosed tendinitis of both thumbs), the examiner opined it was less likely than not that the Veteran's bilateral hand condition was incurred in or caused by an event during his active duty service. He rationalized, "STRs document a right hand laceration that was on the top of the hand on May 9, 1970 and measured about one half an inch. He was treated with antibiotic cream and a band-aid. There is no documentation of sequela. STRs document that on November 30, 1970, the Veteran slammed the hood of the car on his left hand, resulting in minor swelling of the knuckles. There was minor pain of the index finger with movement. There was no mention of left thumb pain. X-ray examination of the left hand on December 2, 1970 was a 'normal study.' The Veteran was diagnosed as having sustained a contusion of the left hand. There is no documentation in STRs of an injury or pain in the area of the right or left thumbs or in either hand proximal to the thumbs. Subsequent medical records have also been silent for a medical condition involving either thumb or either hand proximal to the thumb for over 45 years until this past year." In correspondence dated June 2018 as well as during his hearing, the Veteran expressed his displeasure with the January 2018 examination, describing it as "bizarre." He stated that the examiner only assessed his hands for approximately 3 minutes and did not use a goniometer to measure range of motion. Moreover, he recounted how the examiner said he did not review the Veteran's file (despite notating on the C&P examination that a review of the file was performed). Once VA undertakes an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303 (2007). The January 2018 VA examiner did not specifically consider the diagnosis of arthritis of the hands, especially the thumbs, in the VA clinic setting. As such, an addendum opinion is necessary. 3. Entitlement to service connection for visual disturbance to left-sided vision as secondary to service-connected scar above the left eye is remanded. An October 2021 opinion indicated that the Veteran's service-connected scar above his left eye caused occasional visual disturbance to his left-sided vision. The Board requires medical opinion to determine the extent of visual impairment, if any, that has been caused by the service-connected scar above his left eye. See Bailey, 33 Vet. App. 188 (2021); Kisor, 139 S. Ct. 2400, 2415 (2019); 38 C.F.R. § 3.155(d)(2). The matters are REMANDED for the following action: 1. The AOJ shall associate the Veteran's most recent outstanding VA medical treatment records with his file, specifically those records from December 2021 to the present. 2. Then, the Veteran should be afforded an appropriate VA examination in order to determine the current nature and etiology of his left and right hand condition(s). The claims file must be made available to and be reviewed by the examiner. The examiner should specifically indicate whether the Veteran has a left and/or right hand condition specifically addressing whether he manifests arthritis of the hands and thumbs (see VA clinic records dated January 2018) and/or trigger finger(s) as reported as a possible diagnosis by the Veteran. For each diagnosis, provide an opinion as to whether it is a more nearly equal probability or greater that any such left and/or right hand condition occurred in or is otherwise etiologically related to the Veteran's military service, to include the right hand laceration during service or slamming his hand in the hood of a Jeep during service. The examiner is specifically requested to discuss whether the mechanisms of injury described by the Veteran and STRs were sufficiently severe to result in any current abnormalities of the hands and thumbs, including the arthritic changes. The examiner should consider, and comment on the significance of, the following: the Veteran's STRs documenting a right hand laceration and the event wherein the Veteran slammed his hand in the hood of a Jeep; the January 2016 note in the Veteran's CAPRI VA treatment record, documenting right hand injury; the January 2018 VA examination for the Veteran's hands, and; the August 2021 hearing testimony. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Afford the Veteran an eye examination to determine whether he manifests visual impairment as due to his service-connected scar above his left eye. The examiner is requested to discuss whether the Veteran manifests any visual impairment of the left eye and, if so, whether there is a nearly equal probability or greater that such visual impairment is caused by service-connected scar above his left eye OR that service-connected scar above his left eye has caused any medically discernible worsening of left-sided visual acuity, even if temporary. The examiner should explain whether the service-connected scar above his left eye is medically capable of causing visual impairment of the left eye. (continued on the next page) 4. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Victoria A. Banis, 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.