Citation Nr: 18123950
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 15-30 400
DATE:	August 3, 2018
ORDER
A compensable 20 percent rating, but no higher, for service-connected scars of the right cheek, left neck, and right knee is granted.
REMANDED
The issue of entitlement to a compensable rating for right knee chondromalacia status post bursectomy (now claimed as right knee instability) for the period from December 1, 2014 to December 21, 2016, is remanded.
The issue of entitlement to an increased rating in excess of 10 percent for right knee chondromalacia status post bursectomy (now claimed as right knee instability) for the period from December 21, 2016, is remanded.
The issue of entitlement to service connection for herpes is remanded.
FINDING OF FACT
Since May 21, 2012, the Veteran’s three service-connected scars (right cheek, left neck, and right knee) have been painful, but not unstable and do not result in limitation of function of the affected parts; and the scars on the right cheek and left neck are without any characteristics of disfigurement.
CONCLUSION OF LAW
Since May 12, 2012, the criteria for a disability rating of 20 percent, but no more, for service-connected scars of the right cheek, left neck, and right knee are met.  38 U.S.C. §§ 1154(a), 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, Diagnostic Code 7804 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran, who is the appellant in this case, served on active duty from November 1988 to August 1995, August 2003 to November 2008, and December 2008 to October 2010.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado dated August 2013, and the RO in Salt Lake City, Utah dated September 2014.  In August 2015, the Veteran perfected a timely substantive appeal.
The Board acknowledges that the RO reduced the ratings for the Veteran’s service-connected scar disabilities from 10 percent to noncompensable, and that the Veteran’s January 2015 Notice of Disagreement (NOD) objects to the reductions.  However, given that the Board’s decision to grant a 20 percent rating for the aforementioned scars for the entire period on appeal, discussed more fully below, the Board is effectively reinstating the reduced ratings, thereby rendering the issue of a reduction moot.
Preliminary Matter
The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions 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); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016).
Entitlement to a compensable rating for scars of the right cheek, left neck, and right knee.
The Veteran has been assigned noncompensable ratings for a scar over the right knee under Diagnostic Code (DC) 7805, and residual scars from removal of skin cancers from the right cheek and left neck, under DC 7818.
The Veteran asserts that higher ratings are warranted for a scar over the right knee where an incision was made during a bursectomy, and for scars on her right cheek and left neck where skin cancers were removed.  Additionally, the Veteran contends that the cheek and neck scars should be rated separately.  See Statement in Support of Claim dated April 16, 2014.
Increased Ratings
Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.
In evaluating a disability, the Board considers the current examination reports considering the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The Board has a duty to acknowledge and consider all regulations that are potentially applicable.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10.
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.  See 38 C.F.R. § 4.7.
In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21.  At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings.  Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).
When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim, or whether a preponderance of the evidence is against the claim.  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Under the “benefit-of-the-doubt” rule, where there exists “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue.  Ashley v. Brown, 6 Vet. App. 52, 59 (1993).  See 38 C.F.R. §§ 3.102, 4.3.
Rating Criteria for Scars
Under DC 7818, the disability is to be rated according to disfigurement of the head, face, or neck (DC 7800); scars (DCs 7801, 7802, 7803, 7804, or 7805); or impairment of function.  
“Disfigurement” as discussed above is based on eight characteristics of disfigurement that are identified under 38 C.F.R. § 4.118, DC 7800, Note (1). These characteristics of disfigurement include: (1) scars that are five inches or more (13 centimeters or more) in length; (2) scars that are at least one-quarter inch (0.6 centimeters) wide at the widest part; (3) surface contour of the scar is elevated or depressed on palpation; (4) scars that are adherent to the underlying tissue; (5) skin is hypo-pigmented or hyper-pigmented in an area exceeding six square inches (39 square centimeters); (6) skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); (7) underlying soft tissue is missing in an area exceeding six square inches (39 square centimeters); or, (8) skin is indurated or inflexible in an area exceeding six square inches (39 square centimeters). 
Under 38 C.F.R. § 4.118, DC 7800, Note 5, characteristics of disfigurement may be found as having been caused by one scar or by multiple scars.  In other words, the characteristics required to assign a particular disability rating need not be caused by a single scar in order to assign that disability rating. DC 7800, Note 3 instructs that consideration be provided to “unretouched color photographs when evaluating under these criteria.”
Under DC 7801, a 10 percent rating is assigned for a scar not on the head, face, or neck, that is deep (associated with underlying soft tissue damage) and nonlinear exceeding 6 square inches (39 sq. cm.) in area; a 20 percent rating is awarded if the area or areas exceed 12 square inches (77 sq. cm.); a 30 percent rating is warranted for area or areas exceeding 72 square inches (465 sq. cm.); and a 40 percent rating is warranted for area or areas exceeding 144 square inches (929 sq. cm.).
Under DC 7802, if a scar on other than the head, face, or neck is superficial (not associated with soft tissue damage) and nonlinear, a maximum 10 percent rating is assigned if affecting an area or areas of 144 square inches (929 sq. cm.) or greater.
Under DC 7804, a scar will be assigned a 10 percent rating if there are one or two scars that are painful or unstable; a 20 percent rating if there are three or four scars that are painful or unstable; and a 30 percent rating if there are five or more scars that are painful or unstable.  38 C.F.R. § 4.118.  Note (1) states 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) states that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804 when applicable. 
DC 7805 provides that scars (including linear scars) not otherwise rated under DCs 7800-7804 are to be rated based on any disabling effects not provided for by those codes.  In addition, the effects of scars otherwise rated under DCs 7800-7804 are to be considered.  38 C.F.R. § 4.118, DC 7805.  In this regard, medical evidence of record suggests possible application of orthopedic, muscular, and neurological codes.
Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998).  The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).
When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 
Although the RO identified and adjudicated each issue separately, the Board will address the issues together as they stem from the same law.
Analysis
Competent evidence shows that the Veteran has three painful service-connected scars, warranting a 20 percent rating under DC 7804.
Turning to the record, a VA dermatology consultation note dated April 2012 reflects that a physician identified a skin lesion on the Veteran’s left neck, and resected the tissue.  Biopsy results dated April 2012 reflect that the removed tissue was positive for basal cell carcinoma, and that surgical margines were negative for malignancy.  An April 2012 letter from a VA physician apprised the Veteran that the biopsy revealed basal cell skin cancer, that the biopsy and a subsequent procedure removed the entire lesion, and that no further treatment was needed, although a follow-up visit was recommended.  An April 2012 VA dermatology outpatient note reflects the physician’s characterization of the Veteran’s right cheek scar as a “fine linear scar.”
During a June 2013 VA knee joint examination, the examiner noted that the Veteran’s right knee scar was not painful or unstable.
A VA dermatology note dated June 2013 reflects that the Veteran was evaluated for skin damage due to long standing sun exposure.  The impression included actinic keratosis, actinic damage, and previous history of basal cell carcinoma.
In July 2013, the Veteran underwent a VA examination.  The examiner identified a linear scar 4 cm in length on the anterior right knee from a 1990 bursectomy, a linear 2 x 0.2 cm healed scar on the right middle cheek from removal of skin cancer in 2005, and a linear 1 x 0.5 cm scar on the left lateral middle neck from removal of skin cancer in 2012.  Although the examiner did not record the width of the right knee scar, the Board notes that a November 2010 VA examination report describes the scar as a “Well-healed incision scar overlying patella without adhesions, keloid formation, or sensory deficits or pain measuring 5 x 0.5 cm.”  The July 2013 VA examiner attributed none of the scars to burns, and the examiner noted that the scars are not painful or unstable, and there is no frequent loss of covering of skin over any of the scars.  The examiner concluded that the scars did not cause limitation of function or impact the Veteran’s ability to work.
In her September 2013 and April 2014 Statements in Support of Claim the Veteran asserted that her right knee scar is painful, tender, adhesed, unsightly, and disfiguring.
During a June 2014 VA examination, the examiner noted that the Veteran was diagnosed with basal cell carcinoma of the skin of the right cheek in 2005 and underwent surgery at Walter Reed Hospital in Maryland, and that a reoccurrence to her left neck in 2012 was surgically treated at a hospital in Lincoln, Nebraska.  The examiner identified a 2 x 0.2 cm scar on the right cheek, and a 1 x 0.5 cm scar on the left neck as residuals of the 2005 and 2012 basal cell carcinoma resections, and identified the scars as superficial well healed and nontender.  Additionally, the examiner identified a scar on the middle right knee, 6 cm in length status post-bursectomy from 1990.  The examiner noted that the scars were linear, were not due to burns, and were not painful or unstable.  On examination, there was no elevation, depression, or adherence to underlying tissue, or missing underlying soft tissue.  There was no abnormal pigmentation or texture of the scars, no gross distortion or asymmetry of facial features, or visible or palpable tissue loss, and no nerve damage.  The scarring was noted not to have resulted in debilitating or non-debilitating episodes in the prior 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis.  The examiner stated that the Veteran did not have any residual conditions or complications due to the cancers or surgeries.  The scars did not limit functionality or impact the Veteran’s ability to work.
Given the available evidence, including the photographs submitted by the Veteran, the evidence clearly shows that the Veteran has surgical scars over the right knee, and on her right cheek and left neck, and she has consistently asserted throughout the appeal period that these scars cause pain.  See Statements in Support of Claim dated May 21, 2012 and September 4, 2013.  While the VA examiner has not indicated that the scarring is objectively painful, in giving the Veteran the benefit of the doubt the Board finds that the scars are painful based on her lay statements.  The Board notes that the Veteran is competent to report an observable symptom such as pain.  Layno v. Brown, 6 Vet. App. 465 (1994).
Accordingly, a 20 percent rating under DC 7804 is warranted for the entire period on appeal because the Veteran has three painful scars.  A higher rating under DC 7804, which requires competent evidence of five or more unstable or painful scars, is not warranted because the evidence does not demonstrate that the Veteran has five or more scars that are unstable or painful, and the Veteran has made no such claim.  See 38 C.F.R. § 4.118, Diagnostic Code 7804.  The medical evidence does not indicate that any of the three scars are unstable.
The Board has considered other related DCs in order to ensure that the Veteran would be awarded the maximum benefit available for her service-connected scar disabilities.  However, the Board finds that the Veteran’s scars do not satisfy the rating criteria under DCs 7800, 7801, or 7802 as shown by competent evidence of record, namely, the VA examination reports.  See VA Examination reports dated July 26, 2013 and June 4, 2014.
DC 7800 is not applicable here because the Veteran’s scars do not result in disfigurement for VA purposes.  While the Board acknowledges the Veteran’s belief that the scars on her right cheek and left neck are disfiguring, the criteria for a finding of disfigurement under DC 7800 are not satisfied in that neither of the right cheek and left neck scars at issue are noted to be 13 cm or more in length or at least 0.6 cm wide, the surface contour of the scars are not elevated or depressed on palpation, the scars are not adherent to underlying tissue, and there is no indication of an area of skin exceeding 39 square cm that is hypo- or hyper-pigmented, of abnormal skin texture, indurated or inflexible, or where underlying soft tissue is missing.
DC 7801 is not for application because the evidence does not demonstrate that the Veteran’s right knee scar is deep and nonlinear.  DC 7802 is not for application because the Veteran’s right knee scar has been shown to be linear.  Lastly, DC 7805 is not for application because none of the Veteran’s service-connected scars impact functionality.  Indeed, the July 2013 and June 2014 VA examination reports specifically state that there is no loss of function due to the Veteran’s cheek, neck, or knee scars.  Therefore, ratings under other related DCs are not warranted.
Additionally, the Board acknowledges the Veteran’s assertion that her scars of the right cheek and left neck should be assigned separate disability ratings on the basis that the cheek and neck are entirely separate bodily systems.  See Statement in Support of Claim dated April 16, 2014.  Assuming, arguendo, that the cheek and neck are separate body systems, given the evidence of record, on this record separate ratings for each scar would result in noncompensable ratings for each scar.  Mindful that the Veteran is presumed to be seeking the maximum possible evaluation, see A.B. v. Brown, 6 Vet. App. 35 (1993), the Board grants a 20 percent rating on the basis of the combined impact of painful scars under DC 7804.
REASONS FOR REMAND
The issue of entitlement to a compensable rating for right knee chondromalacia status post bursectomy (now claimed as right knee instability) for the period from December 1, 2014, to December 21, 2016, is remanded.
The issue of entitlement to an increased rating in excess of 10 percent for right knee chondromalacia status post bursectomy (now claimed as right knee instability) for the period from December 21, 2016, is remanded.
The Board finds deficiencies with the December 2016 VA knee examination. While the examiner indicated that the Veteran reported flare-ups of the right knee, which caused increased pain with long-term walking, kneeling, or climbing stairs, the examiner could not say without resorting to mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability of the Veteran’s right knee joint during flare-ups because the Veteran was not being examined during a flare-up.  Likewise, the examiner could not say without resorting to mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability of the Veteran’s right knee with repeated use over a period of time because the Veteran was not being examined following repeated use of the joint over time.
The United States Court of Appeals for Veterans Claims (“Court”), in a recent precedential opinion, held that “before the Board can accept an examiner’s statement that an opinion cannot be provided without resorting to speculation, it must be clear that this is predicated on a lack of knowledge among the “medical community at large and not the insufficient knowledge of the specific examiner.”  See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017) (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)).
Accordingly, the Board finds that the December 2016 VA examinations was inadequate.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate).  Therefore, on remand, the Veteran is to be afforded a new VA examination.
The issue of entitlement to service connection for herpes is remanded.
The Board finds deficiencies with the August 2015 VA gynecological examination.  The deficiencies appear to have taken root in the apparent misstatement of fact by the Veteran’s representative in the January 2015 NOD, in which he asserted that the Veteran contracted “HPV-2” during service.  See NOD dated January 12, 2015 at pg. 2.  This assertion was construed by the RO as a claim for service connection for HPV-2, the medical abbreviation for human papillomavirus Type 2.  Consequently, the RO requested that the VA examiner determine if the Veteran was diagnosed with HPV-2, and whether it was likely that the virus was contracted during service.  The August 2015 VA examiner determined that the Veteran was negative for HPV-2, noting that the Veteran pointed out during the examination that she was diagnosed with herpes.  See VA Examination report dated August 25, 2015 at pgs. 1, 4.  The Veteran’s representative clarified the issue in his September 2015 remarks on appeal, stating that the Veteran has herpes, not HPV-2, and that she seeks service connection for herpes.  Notably, testing for HSV-2 was not conducted.
Accordingly, the Board finds that the August 2015 VA examination is inadequate.  Barr, supra.  On remand, the Veteran will be afforded a new VA examination.
While the record reflects that the Veteran has occasionally reported to clinicians that she was previously diagnosed with herpes, the treatment records in the claims file do not appear to include an actual objective diagnosis of the virus.  Therefore, on remand the RO will afford the Veteran an opportunity to submit medical records that reflect an objective diagnosis of herpes.
The matters are REMANDED for the following action:
1. Ensure that all outstanding VA treatment records are associated with the claims file.  
Also, contact the Veteran and invite her to submit any medical treatment records reflecting a current diagnosis of herpes (HSV-2).
2.  Then, provide the Veteran with a VA examination to ascertain whether she has a current diagnosis of herpes.  If diagnosis is contingent on the Veteran being symptomatic, coordinate, to the extent possible, with the Veteran on the scheduling of the examination.  The claims file must be made available to and be reviewed by the examiner.  All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail.
After a thorough review of the record and examination of the Veteran, the examiner is asked to respond to the following:
(a) Clarify the presence of the herpes (HSV-2) virus.
(b) Is it at least as likely as not (50 percent or higher degree of probability) that any current herpes virus is etiologically related to the Veteran’s active service?
**In providing the requested opinion, the examiner should consider the Veteran’s competent and credible lay statements of record asserting how herpes was contracted.
The examiner should provide a complete rationale for the opinion, whether favorable or unfavorable, and cite to specific evidence of record, as necessary.
3. Provide the Veteran with a VA examination to ascertain the severity of her service-connected right knee disability.  The claims file must be made available to and be reviewed by the examiner.  All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail.
After a thorough review of the record and examination of the Veteran, the examiner is asked to respond to the following:
(a) Elicit from the Veteran all signs and symptoms of her right knee disability.  Indicate any and all associated orthopedic and neurologic manifestations.
**In doing so, also obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups.
(b) Full range of motion testing must be performed where possible.  The joints involved should be tested, including for pain, in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing.  See Correia v. McDonald, 28 Vet. App. 158 (2016).
If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 
(c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered.  The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion, including impact on occupational functioning.
**If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment.  The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation.  Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017).
4. Then, readjudicate the issues on appeal.  If the benefits sought on appeal are not granted, the Veteran and her attorney should be provided with a Supplemental Statement of the Case and afforded the appropriate time period within which to respond.

 
S. B. MAYS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Brad Farrell, 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

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency