Citation Nr: 1723752 Decision Date: 06/23/17 Archive Date: 06/29/17 DOCKET NO. 12-01 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial compensable rating for disfiguring facial scars, and in excess of 10 percent disabling from January 10, 2017. 2. Entitlement to an initial compensable rating for a residual scar, status-post laceration, of the middle front torso. 3. Entitlement to an initial compensable rating for a residual scar, status-post laceration, of the low back torso. 4. Entitlement to an initial compensable rating for a residual scar, status-post laceration, of the right upper extremity. 5. Entitlement to service connection for erectile dysfunction, to include as secondary to post-traumatic stress disorder (PTSD). 6. Entitlement to special monthly compensation based on loss of use of a creative organ. 7. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Rachel E. Jensen, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1976 to June 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, and a February 2017 rating decision by the RO in Montgomery, Alabama. The Court has indicated that in claims for increased ratings the Board must consider whether the record raises the issue of unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). This case raises the issue of whether the Veteran's service-connected disabilities preclude him from maintaining a substantially gainful occupation. An inferred TDIU issue is addressed in the remand portion of the decision. For the reasons expressed below, the issues of entitlement to service connection for erectile dysfunction, entitlement to special monthly compensation based on loss of use of a creative organ, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's facial scar manifested one characteristic of disfigurement throughout the entire appeal period. 2. The Veteran's facial scar did not display visible or palpable tissue loss and either gross distortion or asymmetry of feature(s) at any time during the entire appeal period. 3. The Veteran's middle front torso scar is not at least 6 square (sq.) inches (39 sq. centimeters (cm)) in size and does not have any additional uncompensated disabling effects. 4. The Veteran's low back torso scar is a deep, non-linear scar, that is not 144 sq. inches (929 sq. cm.) or greater, but does manifest symptoms of pain. 5. The Veteran's right upper extremity scar is not 144 sq. inches (929 sq. cm.) or greater and does not have any additional uncompensated disabling effects. CONCLUSIONS OF LAW 1. The criteria for a disability rating for facial scars, under Diagnostic Code (DC) 7800, of 10 percent disabling, and no higher, have been met from November 19, 2009. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.118, DC 7800 (2016). 2. The criteria for an initial compensable rating for scars on the middle front torso under DC 7801, and for scars on the right upper extremity, under DC 7802, have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.118, DC 7801-7802 (2016). 3. The criteria for a 10 percent rating under DC 7804 have been met for a low back torso scar. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.118, DC 7804 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. 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). 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.A. § 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. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, are to be avoided. 38 C.F.R. § 4.14. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where the schedular criteria does not provide for a noncompensable rating, such a rating is assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service-connected facial scar is currently rated under DC 7800, which pertains to burn scars of the head, face, or neck; scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. 38 C.F.R. § 4.118, DC 7800. The Veteran's service-connected middle front torso scar is currently rated under DC 7801, which pertains to scars not of the head, face, or neck that are deep and nonlinear. The Veteran's service-connected low back torso and right upper extremity scars are currently rated under DC 7802, which pertains to scars not of the head, face, or neck that are superficial and nonlinear. The Board will consider not only the criteria under currently-assigned diagnostic codes, but also the criteria set forth in other potentially applicable diagnostic codes. Under DC 7800, a 10 percent rating is warranted for scars that are located on the head, face, or neck when there is one characteristic of disfigurement. A 30 percent rating is warranted when 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 (including eyelids), ears (auricles), cheeks, or lips), or; with two or three characteristics of disfigurement. A 50 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement. An 80 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characteristics of disfigurement. 38 C.F.R. § 4.118, DC 7800. For purposes of evaluation of under 38 C.F.R. § 4.118, the eight characteristics of disfigurement are: a scar that is 5 or more inches (13 cm), in length; a scar that is at least one-quarter inch (0.6 cm) wide at the widest part; surface contour of the scar that is elevated or depressed on palpation; a scar that is adherent to underlying tissue; skin that is hypo- or hyper-pigmented in an area exceeding 6 sq. inches (39 sq. cm); skin texture that is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 sq. inches (39 sq. cm); underlying soft tissue that is missing in an area exceeding six square inches (39 sq. cm); and skin that is indurated and inflexible in an area exceeding 6 sq. inches (39 sq. cm). 38 C.F.R. § 4.118, DC 7800, Note 1. VA is to consider unretouched color photographs when evaluating under these criteria. Id., at Note 3. Additionally, VA is to separately evaluate disabling effects other than disfigurement that are associated with individual scars of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, under the appropriate diagnostic code(s) and apply 38 C.F.R. § 4.25 to combine the evaluation(s) with the evaluation assigned under DC 7800. Id., at Note 4. Finally, the characteristics of disfigurement may be caused by one scar or by multiple scars; the characteristics that are required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. Id., at Note 5. Under DC 7801, a 10 percent evaluation when the area(s) is at least 6 sq. inches (39 sq. cm) but less than 12 sq. inches (77 sq. cm). A 20 percent evaluation is assigned when the area(s) is at least 12 sq. inches (77 sq. cm) but less than 72 sq. inches (465 sq. cm). A 30 percent evaluation is assigned when the area(s) is at least 72 sq. inches (465 sq. cm) but less than 144 sq. inches (929 sq. cm). A 40 percent evaluation is assigned when the area(s) exceeds 144 sq. inches (929 sq. cm). Note 1 provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801. Under DC 7802, a maximum schedular evaluation of 10 percent is warranted for scars with an area(s) of 144 sq. inches (929 sq. cm) or greater. Note 1 provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802. Under DC 7804, which applies to scars that are unstable or painful, a 10 percent evaluation is warranted for one or two scars that are unstable or painful. A 20 percent evaluation is warranted for three or four scars that are unstable or painful. A 30 percent evaluation is warranted for five or more scars that are unstable or painful. 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 provides that if one or more scars are both unstable and painful, 10 percent should be added to the evaluation that is based on the total number of unstable or painful scars. Note 3 provides that scars evaluated under DC 7800, 7801, 7802, and 7805 may also receive an evaluation under this diagnostic code, when applicable. 38 C.F.R. § 4.118, DC 7804. DC 7805 applies to other scars (including linear scars) and other effects of scars evaluated under DC 7800, 7801, 7802 and 7804. Any disabling effects not considered in a rating provided under DC 7800 through 7804 should be evaluated under an appropriate diagnostic code. At the outset, the evidence available to determine the appropriate ratings for the Veteran's scars includes three VA examination reports and his lay statements. The January 2014 and January 2017 examinations contain very similar findings from two different examiners with consistent observations and conclusions. The January 2010 examination report contains findings that are largely at odds with the findings of the other examinations. Everything from the size and depth of the scars, to the symptoms and characteristics of disfigurement observed, differ from the findings of the two later examinations. The sizes of all of the scars reported by the January 2010 examiner are much smaller than those reported in the 2014 and 2017 examination reports, and all are deemed superficial by that examiner and not so in the latter examinations. It is unlikely that stable, healed scars from an injury suffered in 1977 would have worsened without an intervening cause from 2010 to 2014. The January 2010 examination was conducted by a nurse practitioner, board certified in maternal health and holding a bachelor of midwifery. The January 2014 and January 2017 examinations were conducted by a fee-basis physician and a certified registered nurse practitioner with a master of science in nursing, respectively. Although all of the clinicians have the training and expertise necessary to provide medical opinions, the Board finds the latter two examinations to be more competent, credible, and probative, given the consistent findings and conclusions, the lack of evidence of an intervening cause that would have exacerbated the size and depth of the scars, and the training and specialization of the clinicians. Therefore, the analysis below will include only the findings of the 2014 and 2017 examinations. I. Facial Scar During the January 2014 VA examination, the clinician observed a scar at the lower part of the left eyebrow descending below the lower right eyelid 7 sq. cm in length and 0.25 sq. cm in width. Additionally, a subcutaneous tender granuloma due to the scar was found at the left eyebrow. The granuloma was determined to be a swollen nodule of 0.75 sq. cm that resulted in tenderness at the end of the scar. At another VA examination conducted in January 2017, the clinician observed a scar from the left side of the Veteran's eyebrow extending below the lower right eyelid 7 sq. cm in length and 0.25 sq. cm in width. A 0.75 sq. cm nodule was tender to the touch. An addendum opinion was obtained in February 2017 wherein the examiner stated that the nodule palpated at the January 2017 examination was the same as that observed in the January 2014 VA examination and was etiologically related to the scar. In February 2017, the RO increased the Veteran's facial scar evaluation to 10 percent disabling, effective January 10, 2017, the date of the VA examination. The higher evaluation was based on the 0.75 sq. cm diameter nodule fitting the criteria of one characteristic of disfigurement, namely, a scar at least one-quarter inch (0.6 sq. cm) wide at its widest part. 38 C.F.R. 4.118, DC 7800, Note 1. The Board finds that the Veteran's facial scar evaluation warrants a 10 percent disabling evaluation, effective November 19, 2009. Although the painful nodule that forms the basis of the 10 percent evaluation was first observed in January 2014, because the results of the January 2010 examination are in question, the Board gives all benefit of the doubt to the Veteran that the symptomatology was similar at the time of the claim. The Board also finds that a higher evaluation is not warranted throughout the appeal period. There has been no visible or palpable tissue loss, gross distortion, or asymmetry of feature(s), and no other characteristics of disfigurement. Further, there are no other disabling effects other than disfigurement associated with the scar that are not otherwise already compensated. The Veteran experiences pain at the point of the nodule. The RO accounted for this when an additional rating was awarded under DC 7804, evaluated at 10 percent disabling. II. Middle Front Torso Scar During the January 2014 VA examination, a deep, nonlinear scar measuring 3 sq. cm long by 1.5 sq. cm wide was seen beneath the right breast area on the right upper torso. No symptoms were reported. The January 2017 VA examination report lists a deep, nonlinear scar below the right breast measuring 3 sq. cm long by 1.5 sq. cm wide. The Veteran reported that he had pain at intervals with all of his scars, but the clinician noted no pain at the scars of the trunk. The Board finds that because the scar has not reached a length of at least 6 sq. inches (39 sq. cm) throughout the appeal period, the rating evaluation is noncompensable. As there is no consistent evidence that the scar is unstable or painful, and there is no other disabling effects not covered by DC 7801, no additional rating is warranted. III. Low Back Torso Scar During the January 2014 VA examination, a deep, nonlinear scar at the mid-right flank to the posterior torso measuring 17 sq. cm long and 1 sq. cm wide was found. It was noted that the Veteran experienced an aching soreness with movement at the scar extending from the middle right flank to the posterior torso. Some loss of fascia and muscle bulk was observed, along with pain and fatigue of the right oblique musculature with use. The January 2017 VA examiner reported a deep, nonlinear scar of the low back torso measuring 17 sq. cm long and 1 sq. cm wide. The Veteran reported that he had pain at intervals with all of his scars, but the clinician noted no pain at the scars of the trunk. The low back torso scar was first rated under DC 7802, appropriate for superficial scars. However, the probative evidence of record indicates that this scar is a deep, nonlinear scar and has been described as painful. The Board finds that because the scar has not reached a length of at least 6 sq. inches (39 sq. cm) throughout the appeal period, a compensable rating under DC 7801 is not warranted. However, because pain with movement has been observed, the low back torso scar may be rated as 10 percent disabling under DC 7804. The Veteran already has a 10 percent disabling rating under that diagnostic code for the painful facial nodule, as noted above. As there are no other disabling effects not covered by DC 7801 and 7804, no additional rating is warranted. IV. Right Upper Extremity Scar The January 2014 VA examination report included a superficial, nonlinear scar found on the right upper arm measuring 7 sq. cm long and 1 sq. cm wide. No symptoms are listed. At the January 2017 VA examination, the clinician observed a 7 sq. cm long by 1 sq. cm wide superficial, nonlinear scar. The Veteran reported that he had pain at intervals with all of his scars, but the clinician noted no pain at the scars of the trunk. The Board finds that because the scar has not reached an area of 144 sq. inches (929 sq. cm), a noncompensable rating is appropriate throughout the entire appeal period. As there is no consistent evidence that the scar is unstable or painful, and there are no other disabling effects not covered by DC 7802, no additional rating is warranted. 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, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 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)." ORDER An initial disability rating of 10 percent, but no higher, for a facial scar is granted from November 19, 2009. Initial compensable ratings for scars on the middle front torso and right upper extremity are denied. A 10 percent disability rating for a painful low back torso scar is granted under DC 7804. REMAND I. Erectile Dysfunction The Veteran seeks entitlement to service connection for erectile dysfunction, as secondary to service-connected PTSD. Review of the claims file reflects a September 2009 medical record indicating that the Veteran was diagnosed with hypogonadism. His low testosterone levels were treated with a testosterone patch (Levitra). The Veteran underwent a VA examination in January 2010 in which the Veteran reported the onset of symptoms in 2004 consisting of decreased libido and difficulty obtaining and sustaining an erection. A testosterone level of 591.30 was recorded. The examiner concluded that the Veteran's erectile dysfunction was less likely as not permanently aggravated by PTSD. The rationale offered was that testosterone is a hormone produced by the testicles and is responsible for the proper development of male sexual characteristics; inadequate production of testosterone is not a common cause of erectile dysfunction, however, when erectile dysfunction does occur due to decreased testosterone production, testosterone replacement therapy may improve the problem. The Board finds that this examination is inadequate to determine the likely etiology of the Veteran's erectile dysfunction. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The examiner appears to conclude that the cause of the Veteran's erectile dysfunction is his hypogonadism, or low testosterone, based on the one medical record in the claims file and the average level of testosterone recorded. The rationale states that low testosterone is not a common cause of erectile dysfunction, but medication may help. This in no way discusses the relationship between the Veteran's PTSD and his erectile dysfunction symptoms. Further, the question posed - whether it is at least as likely as not that the Veteran's erectile dysfunction was caused by or is a result of PTSD - was not answered. The report merely gave an opinion as to aggravation. Additionally, when determining if a disorder is secondary to a service-connected disability, the treatments and medications used to treat the underlying disability must be examined in order to determine whether they have resulted in or aggravated the claimed disorder. The record shows that the Veteran has been prescribed Prazosin and Fluoxetine to treat his service-connected PTSD. The examiner did not opine as to whether these medications could cause or aggravate the Veteran's erectile dysfunction or hypogonadism. A new VA examination is needed to determine the likely etiology of the disorder and to provide an adequate opinion and rationale. Further, relevant medical treatment records are not currently associated with the claims file. Therefore, remand is necessary to obtain relevant VA treatment records or any identified private treatment records. See 38 C.F.R. § 3.159(c)(2) (2016); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). II. Special Monthly Compensation The Veteran has claimed entitlement to special monthly compensation based on loss of use of a creative organ. The VA Adjudication Procedure Manual specifies an award for special monthly compensation based on loss of use of a creative organ in a male Veteran if loss of erectile power is shown, without the need for penile deformity. The loss of erectile power must be secondary to a service-connected disease process, such as diabetes or multiple sclerosis. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section H, Topic 39, Blocks b, c (August 3, 2009); 38 U.S.C.A. § 1114(k) (West 2014); 38 C.F.R. § 3.350(a) (2016). As such, the Board finds that the issue of entitlement to a special monthly compensation is inextricably intertwined with the issue of entitlement to service connection for erectile dysfunction, secondary to PTSD. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Therefore, this issue is remanded for further development, as well. III. TDIU The Veteran's service-connected disabilities include: right eye injury, with traumatic cataract, rated 30 percent; PTSD due to personal trauma or assault, rated 30 percent; facial scar, disfigurement, rated 10 percent; facial scar, painful nodule, and painful low back torso scar, rated 10 percent; and residual scars, status post laceration, middle front torso, low back torso, and right upper extremity, all rated 0 percent. The Veteran's combined disability rating is 60 percent, effective November 19, 2009, as per this Board decision. As the Veteran has disabilities resulting from one common etiology (the 1977 armed robbery), he meets the criteria for a rating of "one disability" rated at 60 percent or more. The threshold requirements for a TDIU are met. 38 C.F.R. § 4.16(a). Minimal information is contained in the record regarding the Veteran's employability. In an April 2010 statement, he noted that he last worked as a lineman in December 2008 and became too disabled to work in February 2009. In lay statements he has indicated he had confrontations with coworkers and trouble interacting with others. In order to determine whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, more information is needed. Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records, as indicated by the Veteran. Ask the Veteran to identify and provide appropriate releases for relevant private records of treatment. Associate any new or additional (non-duplicative) evidence with the claims file. 2. Schedule the Veteran for a VA examination(s) with an appropriate medical professional to determine the nature, extent, onset, and etiology of any erectile dysfunction, hypogonadism, or any other genitourinary disorder found to be present. The claims folder should be provided to and reviewed by the examiner. After a review of the examination findings and the entire evidence of record, the examiner is asked to render an opinion on the following: a. Is it at least as likely as not (50 percent or greater probability) that the Veteran's service-connected PTSD (or treatment thereof, including medication) caused or aggravated his erectile dysfunction? b. Is it at least as likely as not (50 percent or greater probability) that the Veteran's service-connected PTSD (or treatment thereof, including medication) caused or aggravated his hypogonadism or any other genitourinary disorder identified? c. If aggravation is found, the examiner should address the baseline manifestations of the disorder found prior to aggravation. The examiner is advised that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms. d. The examiner must explain the rationale for all opinions, citing to supporting factual data and medical literature, as appropriate. If he or she determines that the questions cannot be resolved without resorting to speculation, then an explanation as to why this is so must be provided. e. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The case should thereafter be returned to the Board for further appellate consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs