Citation Nr: 18131222
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 14-36 888
DATE:	August 31, 2018
ORDER
Entitlement to a compensable rating for residuals of post-operative small puncture wound of the chest is denied.
Entitlement to service connection for an acquired psychiatric disorder, to include Major Depressive Disorder (MDD), and including as secondary to service-connected residuals of post-operative small puncture wound of the chest is denied.
FINDINGS OF FACT
1. The preponderance of the competent medical evidence is against a finding that the Veteran’s residuals of post-operative small puncture wound of the chest is manifested by one or two scars that are unstable or painful.
2. The preponderance of the competent medical evidence is against a finding that the Veteran’s MDD is proximately due to or the result of his service-connected disability or aggravated by his service-connected disability, nor is MDD associated with his service.
CONCLUSIONS OF LAW
1. The criteria for a compensable rating for residuals of post-operative small puncture wound of the chest have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118, Diagnostic Code 7804.
2. The criteria for service connection for an acquired psychiatric disorder, to include MDD, and including as secondary to service-connected residuals of post-operative small puncture wound of the chest have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304, 3.310.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the United States Army from December 1975 to December 1978. The Board thanks the Veteran for his service to our country. 
1. Entitlement to a compensable rating for residuals of post-operative small puncture wound of the chest
Where a veteran is seeking an increased rating for a disability one year or more after the grant of entitlement to service connection, the present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The present level of disability will be judged from the time period one year before the increased rating claim was filed until VA makes a final decision on the claim. See Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). At the same time, each disability will be viewed in relation to its history. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings, or separate ratings based on evidence showing that a veteran’s disability was different at distinct times, will also be considered. See Hart, 21 Vet. App. at 510.
VA assigns a percentage rating for a disability by comparing a veteran’s disability against criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4, § 4.1. The Schedule is based on the average reduction in earning capacity in civilian occupations resulting from diseases and injuries associated with service in the armed forces. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  If a veteran’s symptoms implicate two different ratings under a single Diagnostic Code (DC) in the Schedule, then VA will assign the higher rating provided that the symptoms more closely align with the criteria for the higher rating. See 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. VA’s determination about which rating to assign is also informed by a broad interpretation of the law consistent with the facts of each case and, if there is a reasonable doubt as to the degree of a veteran’s disability, then the doubt will be resolved in the veteran’s favor. See id. § 4.3. After VA assigns a rating, that rating may require re-evaluation in the future in keeping with changes to the Veteran’s condition, the law, and medical knowledge. See id. § 4.1.  
Here, the Veteran has a noncompensable rating under DC 7804. A higher 10 percent rating requires one or two scars that are unstable or painful. However, pursuant to the March 2014 VA examiner’s report, his scar is not unstable or painful. Consistently, in VA treatment records to include from March 2014 and November 2013, it is affirmatively indicated that the Veteran did not have skin complaints. Accordingly, the preponderance of the competent medical evidence is against a finding that the Veteran’s service-connected residuals of post-operative small puncture wound of the chest is unstable or painful and a compensable rating is not warranted.
2. Entitlement to service connection for an acquired psychiatric disorder, to include MDD, and including as secondary to service-connected residuals of post-operative small puncture wound of the chest
Direct service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
Secondary service connection requires: (1) a service connected disability; (2) a nonservice connected disability; and (3) evidence that the nonservice connected disability is either (a) proximately due to or the result of the service-connected disability or (b) aggravated (increased in severity) by the service-connected disability. See 38 C.F.R. § 3.310.
For the purpose of evaluating lay evidence, to include a veteran’s statements about his health conditions, competent evidence is “limited to that which the witness has actually observed, and is within the realm of his personal knowledge.” Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). For example, although a lay person is competent to report observable symptoms of an injury or illness (such as pain or the visible flatness of the feet), a lay person is “not competent to opine as to medical etiology or render medical opinions.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).
Here, although in March 2014 a VA psychiatrist opined that notwithstanding “bouts” of depressed mood the Veteran does not have a current mental disorder and VA treatment records show the Veteran had a negative score on depression screenings in August 2013 and July 2014, subsequent VA treatment records dated November 2017 show the Veteran was diagnosed with MDD in the aftermath of Hurricane Maria striking Puerto Rico. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran has MDD. 
However, the Board concludes that the preponderance of the competent medical evidence is against a finding that the Veteran’s MDD is proximately due to or the result of his service-connected disability or aggravated by his service-connected disability, nor is there a nexus, or link, between MDD and the Veteran’s service. Pursuant to the November 2017 VA treatment records, MDD was associated with the Veteran losing his job due to Hurricane Maria and the death of one of his brothers, as well as a second brother’s leg amputation. Further, to the extent a mental health disorder was present earlier than 2017, as the Veteran has contended, pre-claim VA treatment records dated June 2003 show symptoms associated with the Veteran’s divorce and missing his children and in July 2005 symptoms were noted in connection with worrying about his niece and nephew. In addition, service treatment records show the Veteran affirmatively denied depression, excessive worry, and nervous trouble of any sort on separation from the Army in 1978 and the examining physician affirmatively opined that neurologic status was normal. Accordingly, as the preponderance of the competent medical evidence is against a finding that the Veteran’s MDD is associated with his service-connected noncompensable residuals of post-operative small puncture wound of the chest, nor his service, the claim cannot be granted under the law. 
 
Evan M. Deichert
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. Fales, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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