Citation Nr: 1751623 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 13-23 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a spinal cord condition. 2. Entitlement to service connection for brain damage. 3. Entitlement to a disability rating in excess of 40 percent for service-connected thoracolumbar spine degenerative joint/disc disease. 4. Entitlement to an initial compensable disability rating for service-connected history of anterior scalp laceration with scar. 5. Entitlement to a total disability evaluation based on individual unemployability (TDIU) for the period prior to July 11, 2011. 6. Entitlement to an initial disability rating in excess of 70 percent for a psychotic disorder due to another medical condition. 7. Entitlement to an effective date earlier than July 11, 2011, for basic eligibility to Dependents' Educational Assistance (DEA). REPRESENTATION Appellant represented by: Christopher Loiacono, Attorney ATTORNEY FOR THE BOARD K. Churchwell, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1991 to January 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2010, March 2013, June 2013, July 2013, and December 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The March 2010 rating decision denied a disability rating in excess of 40 percent for the Veteran's thoracolumbar spine degenerative joint/disc disease, declined to reopen a claim for service connection for a spinal cord condition, and denied service connection for brain damage. The Veteran's notice of disagreement (NOD) was received in January 2011. A statement of the case (SOC) was issued in January June 2013, and a substantive appeal was received in August 2013. The March 2013 rating decision and its accompanying March 2013 notification letter, in pertinent part, denied service connection for paranoid schizophrenia/ chronic degenerative mental illness and entitlement to TDIU. The Veteran's NOD was received in June 2013. Thereafter, in a December 2015 rating decision and accompanying May 2016 notification letter, entitlement to TDIU was granted, effective July 11, 2011. An SOC was issued in December 2015 for the issue of entitlement to TDIU prior to July 11, 2011, and the Veteran's substantive appeal was received in February 2016. The June 2013 rating decision granted service connection for a scar on the scalp, rated 0 percent, effective November 19, 2009. A July 2013 rating decision determined that the Veteran had been previously granted service connection for history of anterior scalp laceration with scar, rated 0 percent, effective January 8, 1993. As regulations prohibit granting service connection for the same disability twice, the July 2013 rating decision was issued to correct that harmless error, and the 0 percent rating assigned for the Veteran's history of anterior scalp laceration with scar was continued. The Veteran's NOD was received in August 2013. An SOC was issued in October 2015, and a substantive appeal was received in December 2015. Also in the aforementioned December 2015 rating decision and accompanying May 2016 notification letter, the RO granted service connection for a psychotic disorder due to another medical condition, rated 70 percent, effective July 11, 2011; as well as basic eligibility to DEA, effective July 11, 2011. The award of service connection for a psychotic disorder resolves the June 2013 NOD as to that issue; however, in May 2017, the Veteran filed an NOD with the May 2016 notification letter. Specifically, the Veteran disagrees with the initial rating assigned for his psychotic disorder as well as the effective date assigned for his basic eligibility to DEA. The May 2017 NOD also disagreed with the effective date assigned for the Veteran's award of TDIU; however, as noted above, that issue is already on appeal. See December 2015 SOC; February 2016 VA Form 9, substantive appeal. In his February 2016 VA Form 9 substantive appeal, the Veteran requested a hearing before a member of the Board. In March 2017 he withdrew his request for a hearing and VA therefore has no duty to provide an opportunity for a hearing in this case. See 38 C.F.R. § 20.704(e) (2016). The issues of entitlement to service connection for brain damage, entitlement to an initial disability rating in excess of 70 percent for a psychotic disorder due to another medical condition, and entitlement to an earlier effective date for basic eligibility to DEA are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an unappealed November 2004 rating decision, the RO denied the claim of entitlement to service connection for a spinal cord decision. 2. Evidence added to the record since the November 2004 final rating decision is cumulative and redundant of evidence then of record and does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a spinal cord condition; there is not a reasonable possibility of substantiating that claim raised by the record. 3. For the entire period on appeal, even with consideration of the Veteran's complaints of pain and functional loss, there is no evidence his thoracolumbar spine degenerative joint/disc disease has resulted in ankylosis. 4. For the entire period on appeal, the Veteran's scalp scar was not painful or unstable and there were no characteristics of disfigurement associated with the scar. 5. For the period prior to July 11, 2011, the Veteran's service-connected disabilities did not render him unable to obtain and secure substantially gainful employment. CONCLUSIONS OF LAW 1. The November 2004 rating decision that denied service connection for a spinal cord condition is final. 38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. § 3.104 (2016). 2. The evidence received subsequent to the November 2004 rating decision is not new and material and does not serve to reopen the Veteran's claim of entitlement to service connection for a spinal cord condition. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2016). 3. The criteria for disability rating in excess of 40 percent for service-connected thoracolumbar spine degenerative joint/disc disease have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, Diagnostic Codes 5237-5243 (2016). 4. The criteria for an initial compensable disability rating for service-connected history of anterior scalp laceration with scar have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Codes 7800-7805 (2016). 5. For the period prior to July 11, 2011, the criteria for TDIU have not been met. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2014). The exception is that, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 2014). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2016). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156(a) (2016); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Service connection for a spinal cord condition was initially denied in November 2004. The RO determined, in pertinent part, that there was no evidence the claimed condition existed or that it was occurred in or caused by service. The Veteran did not appeal his claim for service connection for a spinal condition, nor did he submit any additional evidence within a year following this decision. See 38 C.F.R. § 3.156(b). The decision denying service connection for a spinal cord condition became final. 38 U.S.C.A. § 7104(b) (West 2014); 38 C.F.R. § 20.1103 (2016). The evidence that has been received since the November 2004 rating decision pertaining to the Veteran's spinal cord condition includes additional postservice treatment records and Social Security Administration (SSA) records. Despite receiving the additional records, there remains no evidence that the Veteran has a diagnosis relating to a spinal cord condition. Moreover, while there is evidence of a head injury in-service, there remains no evidence of an in-service injury or occurrence relating to the Veteran's spinal cord. The Board notes that in January 2010, the RO requested that the Veteran provide evidence to support his claim to reopen but no response was received. The Board finds that none of the new evidence provides material evidence which would warrant reopening the November 2004 decision. Little information regarding that condition was discussed in the additional evidence received, and the new evidence provides no additional information relating to an unestablished fact necessary to substantiate this service connection claim. The Veteran's statements are cumulative and redundant. Therefore, the new evidence does not create a reasonable possibility of an allowance of the claim and is not material. Accordingly, the Board concludes the November 2004 final rating decision will not be reopened because new and material evidence has not been received. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). The duty to notify has been met. See January 2010 correspondence. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. VA also has a duty to assist a claimant in the development of a claim. That duty includes assisting the claimant in the procurement of service and other relevant records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has associated the Veteran's service treatment records and VA treatment records with the claims file. The Veteran was also afforded adequate examinations. The examiners considered the relevant history, provided a detailed description of the condition, and provided an extensive analysis to support the conclusions reached. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2016). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2016); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2016). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2016). The Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). Degenerative Disc Disease of the Lumbar Spine The General Rating Formula for Diseases and Injuries of the Spine assigns ratings with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides that a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is only warranted if there is forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A maximum 100 percent rating is warranted for unfavorable ankylosis of the entire spine. The normal range of motion for the thoracolumbar spine is from 0 degrees to 90 degrees forward flexion, 0 degrees to 30 degrees extension, 0 degrees to 30 degrees left and right lateral flexion, and 0 degrees to 30 degrees left and right lateral rotation. 38 C.F.R. § 4.71, Diagnostic Codes 5235 to 5242, General Rating Formula, Note (2); see also 38 C.F.R. § 4.71, Plate V. Combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. Id. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71, Diagnostic Codes 5235 to 5242, General Rating Formula, Note (5). Unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension and ankylosis results in one or more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. Id. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). There is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain, without objective functional loss, does not require that a higher rating be assigned. The assignment of highest rating for pain without other objective findings would lead to potentially 'absurd results'. Id. at 43. The General Rating Formula also provides for the assignment of separate disability ratings under appropriate diagnostic codes for any objective neurologic abnormalities associated with a disease or injury of the spine, including, but not limited to, bowel or bladder impairment. 38 C.F.R. § 4.71, Diagnostic Codes 5235 to 5242, General Rating Formula, Note (1). The Board notes at the outset that at various times the Veteran has been given a diagnosis of intervertebral disc syndrome (IVDS), while at other times IVDS has not been diagnosed. Under Diagnostic Code 5243, the next higher (and maximum) rating available is 60 percent, which requires incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71, Diagnostic Codes 5243. In this regard, the record does not show that the Veteran's thoracolumbar joint disease/disc disease has ever resulted in prescribed bed rest and treatment for a total duration of at least 6 weeks during a 12-month period. Therefore, Diagnostic Code 5243 will not be discussed further herein. A VA examination was performed in March 2010. The Veteran was diagnosed with degenerative disc disease, stenosis, reverse lordosis and bulging discs. He reported his pain and movement had decreased, including pain in both legs but more in the left leg. He also reported moderate stiffness and weakness resulting from his back. He took prescription medication to treat his back pain. Severe flare-ups caused by prolonged standing, lasting 1 to 3 days were also reported. While he did not use any ambulatory aids for walking, he could only walk about a half mile and reported walking unsteady. He also experienced symptoms including numbness and weakness. His gait, posture, head position, and curvature of the spine were all abnormal. Range of motion testing showed the Veteran had 15 degrees of forward flexion, 5 degrees of extension, 10 degrees of left lateral flexion, 3 degrees of right lateral flexion, 16 degrees of left lateral rotation and 10 degrees of right lateral rotation. Again, pain and weakness as well as painful motion and tenderness were found on examination. No muscle spasms, bladder dysfunction, bowel dysfunction or erectile dysfunction were found. There was some loss of range of motion in the back following repetitive use, mainly 9 degrees of forward flexion. The examiner noted his positive straight leg test showed signs of IVDS but did not diagnose IVDS. Incapacitating episodes during the past 12 months were reported and were treated by additional medication. Specifically, five episodes lasting two to four days were reported. The examiner indicated it was more likely that the IVDS was related to established diagnosis of degenerative joint/disc disease of the lumbar spine because degenerative of the lumbar discs can lead to nerve root compression causing IVDS symptoms. A July 2011 private treatment record shows the Veteran was treated with continued back pain. He indicated he took prescription medication for the pain but it had worsened. The March 2013 VA examination diagnosed the Veteran with degenerative disc disease of the lumbosacral spine. The Veteran reported flare-ups with prolonged walking or standing. On examination, range of motion testing showed 40 degrees of forward flexion with painful motion, 20 degrees of extension with painful motion, 25 degrees of right lateral flexion with no evidence of painful motion, 25 degrees of left lateral flexion with no evidence of painful motion, 30 degrees of right lateral rotation with no evidence of painful motion and 25 degrees of left lateral rotation with no evidence of painful motion. The Veteran was able to perform repetitive use testing with no additional loss of range of motion shown on testing. Functional loss caused by the Veteran's back included less movement than normal and pain on movement. Pain and muscle spasms were noted but guarding or muscle spasms did not result in abnormal gait or spinal contour. The Veteran retained his normal strength and did not have any muscle atrophy. No radiculopathy, no neurologic abnormalities, IVDS or ankylosis were diagnosed. Moreover, the Veteran did not use assistive devices for ambulation. The Veteran's back condition was found to impact the Veteran's ability to work due to pain and range of motion restrictions limiting physically demanding work situations. The Board notes there are no subsequent treatment notations for the Veteran's back until re-evaluation in 2014. A May 2014 MRI of the lumbar spine was normal except mild degenerative disc disease of the upper lumbar area with very mild congenital spinal stenosis was found. A July 2014 private treatment notation documented pain in the low lumbar area. The Veteran reported bilateral buttock and bilateral lower extremity radiation as well as periodic muscle spasms. The pain was constant and was aggravated with walking, bending, sitting and standing to be relieved by resting. An MRI was performed in May 2014 and the physician indicated his lower lumbar spine was perfectly normal. The Veteran did have some disc degeneration in the upper lumbar spine associated with very mild congenital spinal stenosis associated with short pedicles. The Veteran was diagnosed with minor degenerative disc disease of the lumbar spine and congenital stenosis of the lumbar spine. An October 2014 private treatment notation indicated the Veteran had done some work moving his home and had aggravated his back symptoms. His lumbar x-rays showed satisfactory alignment and the boney architecture was good. The Veteran was diagnosed with acute aggravation of chronic low back problems, likely associated with his recent activities such as moving. An October 2015 VA examination diagnosed the Veteran with degenerative arthritis of the spine and disc disease. The Veteran did not report any flare-ups of the back but did report functional loss including no jogging, aerobic or strength exercising. On examination, his range of motion was 30 degrees of forward flexion, 15 degrees of extension, 15 degrees of right lateral flexion, 10 degrees of left lateral flexion, 25 degrees of right lateral rotation and 20 degrees of left lateral rotation. The reduced range of motion causes functional loss in that the Veteran must stand from chairs by pushing off of both arms, walks slightly flexed at the waist with slight left antalgia. Pain complaints with active range of motion all referred to left low lumbar area, except with seated lateral rotations both cause additional more marked left lumbar muscle complaints of pain. Evidence of pain on weight bearing was found. Pain was also noted on range of motion after three repetitions, mainly decreased range of motion in the left lateral rotation. The Veteran also exhibited guarding or muscle spasms of the back resulting in abnormal gait or abnormal spinal contour. Decreased muscle strength was found in the hip flexion but no muscle atrophy. However, no radiculopathy or ankylosis of the spine was found. Additionally, the Veteran had no neurologic abnormalities and no diagnosis of IVDS. Moreover, he did not use assistive devices. Based on the above, a disability rating of 50 percent is not warranted under the criteria for the General Rating Formula as there is no evidence of unfavorable ankylosis of the entire thoracolumbar spine. Lastly, the Board notes the Veteran does not exhibit any neurologic abnormalities to warrant a separate rating pursuant to Diagnostic Codes 5235 and 5242. Also, while the Board is sympathetic to the Veteran's clear pain and functional loss due to his lumbar spine, the provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Accordingly, a rating in excess of 40 percent for the Veteran's degenerative disc disease thoracolumbar spine degenerative joint/disc disease is not supported. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3 (2016). Disfigurement of the Head The Veteran's service-connected history of anterior scalp laceration with scar is currently rated under Diagnostic Code 7800, which pertains to burn scars of the head, face, or neck; scares 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, Diagnostic Code 7800. Under Diagnostic Code 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. 38 C.F.R. § 4.118, Diagnostic Code 7800. 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. Id. 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. Id. 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. Id. For purposes of evaluation of under 38 C.F.R. § 4.118, the eight characteristics of disfigurement are: a scar that is five or more inches, or thirteen centimeters, in length; a scar that is at least one-quarter of an inch, or 0.6 centimeters, 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 six square inches, or 39 square centimeters; skin texture that is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches, or 39 square centimeters; underlying soft tissue that is missing in an area exceeding six square inches, or 39 square centimeters; and skin that is indurated and inflexible in an area exceeding six square inches, or 39 square centimeters. 38 C.F.R. § 4.118 , Diagnostic Code 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 Diagnostic Code 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. Diagnostic Code 7801 applies to burn scars or scars due to other causes, not of the head, face, or neck that are deep and nonlinear. 38 C.F.R. § 4.118, Diagnostic Code 7801. A deep scar is one that is associated with underlying soft tissue damage. Id. at Note 1. Diagnostic Code 7802 pertains to burn scars or scars due to other causes, not of the head, face, or neck that are superficial and nonlinear. 38 C.F.R. § 4.118, Diagnostic Code 7802. A superficial scar is one that is not associated with underlying soft tissue damage. Id. at Note 1. Pursuant to Diagnostic Code 7804, which applies to unstable or painful scars, a 10 percent rating is warranted for one or two scars that are unstable or painful; a 20 percent rating is warranted for three or four scars that are unstable or painful; and a 30 percent rating is warranted for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note 1. If one or more scars are both unstable and painful, VA is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. at Note 2. Additionally, scars that are evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804 when applicable. Id. at Note 3. According to Diagnostic Code 7805, which applies to other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804, VA is to evaluate any disabling effect(s) not considered in a rating provided under such Diagnostic Codes under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. A March 2013 VA examination diagnosed the Veteran with three scars, one on his scalp, left knee and a left inguinal hernia scar. The scars were located on the head, face or neck as well as the trunk or extremities of the body. No scars were found to be painful or unstable. The scar on his left lower extremity measured 2 centimeters by .25 centimeters. The scar on his anterior trunk measured 4 centimeters by .1 centimeters. The scar on his scalp measured 6 centimeters by .25 centimeters. An October 2015 VA examination diagnosed the Veteran with three scars located on the trunk or extremities, as well as on the head, face or neck. While the Veteran has three scars, he declined to have two re-evaluated, stating they do not have any symptomatic limitations or residuals. The scar he did have evaluated is located on his scalp. He stated it is never painful, reddened or raised and only that touching it is always different/decreased from touching all adjacent scalp areas. He denied any hyperalgesia symptomatology and denied pain combing or shampooing hair. He also denied further medical evaluation or treatment. The scar was 6 centimeters by .2 centimeters. The Board finds that a compensable rating is not warranted under Diagnostic Code 7800, the Diagnostic Code under which the Veteran's neck scar is currently rated. As detailed above, a 10 percent rating is warranted only when there is one characteristic of disfigurement. Based on the VA scars examination, the maximum width of the Veteran's scalp scar was 0.25 centimeters, and the maximum length was six centimeters, neither of which satisfies the criteria for characteristics of disfigurement under 38 C.F.R. § 4.118 . 38 C.F.R. § 4.118, Diagnostic Code 7800, Note 1. Additionally, there is no indication that the Veteran has surface contour of the scar that is elevated or depressed on palpation; that the scar is adherent to underlying tissue; that the Veteran's skin is hypo- or hyper-pigmented in an area exceeding six square inches, or 39 square centimeters; that the Veteran has abnormal skin texture (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches, or 39 square centimeters; that underlying soft tissue is missing in an area exceeding six square inches, or 39 square centimeters; or that the Veteran's skin is indurated and inflexible in an area exceeding six square inches, or 39 square centimeters. As there is no competent evidence of characteristics of disfigurement, a compensable rating is not warranted under Diagnostic Code 7800. See id. As Diagnostic Codes 7801 and 7802 only pertain to scars that are not of the head, face, or neck, those provisions are inapplicable and do not support a rating in excess of 10 percent at any time during the course of the appeal. See 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802. Additionally, there is no evidence of painful or unstable scars at either examination so a rating pursuant to Diagnostic Code 7804 is not for applicable. Finally, as there is no indication of any other disabling effects that would warrant evaluation under an appropriate diagnostic code, an increased rating under Diagnostic Code 7805 is not warranted. See 38 C.F.R. § 4.118, Diagnostic Code 7805. In summary, the Board finds that an initial compensable disability rating, is not warranted for the Veteran's history of anterior scalp laceration with scar pursuant to Diagnostic Code 7800. See 38 C.F.R. § 4.118 , Diagnostic Code 7804; see also 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). TDIU Prior to July 11, 2011 Total ratings, referred to as TDIU, may be assigned in the first instance by the Board or the RO when the disabled person is determined to be unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a) (2016). In cases where these percentages are not met, but the disabled person is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities, the case should be submitted to the Director, Compensation Service, for consideration of extra-schedular TDIU. See 38 C.F.R. § 4.16(b) (2016). Neither the effect of nonservice-connected disabilities nor of the veteran's age may be considering in determining whether TDIU is warranted. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a) (2016). Prior to July 11, 2011, the Veteran was service-connected for thoracolumbar spine degenerative joint/disc disease with a 40 percent disability rating, history of bilateral testicle hydrocele with a noncompensable disability rating, history of anterior scalp laceration with scar with a noncompensable disability rating, left leg scar at the knee with a noncompensable disability rating, and history of herniorrhaphy with caricocelectomy with a noncompensable disability rating. The combined disability rating for this period was 40 percent. Therefore, the Veteran did not meet the schedular requirements for assignment of a TDIU under 38 C.F.R. § 4.16(a) prior to July 11, 2011. Turning to whether referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is warranted, the Board notes the Veteran's claim for TDIU was raised in the January 2011 correspondence from his representative. At that time, the Veteran requested due consideration to be given to the issue of individual unemployability. At the outset, the Board notes the objective evidence relating to his unemployability for the period at issue is limited to a March 2010 VA examination for the Veteran's thoracolumbar spine. This examination revealed difficulty with physical exertion, including prolonged standing. Based on the foregoing evidence, it is not the opinion of the Board that referral for consideration under 38 C.F.R. § 4.16(b), for a TDIU rating is warranted. Full consideration has been given to the Veteran's ongoing limitations with his thoracolumbar spine. However, the Board does not find substantial evidence in the record to support the Veteran's inability to perform work for which he was qualified, particularly sedentary employment with limited physical exertion and physical movement. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against entitlement to TDIU for the period prior to July 11, 2011. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. 49 (1990). ORDER New and material evidence has not been presented, and the Veteran's claim for entitlement to service connection for a spinal cord condition is not reopened. A disability rating in excess of 40 percent for service-connected thoracolumbar spine degenerative joint/disc disease is denied. An initial compensable disability rating for service-connected history of anterior scalp laceration with scar is denied. Entitlement to a TDIU prior to July 11, 2011 is denied. REMAND Regarding the Veteran's claim for service connection for brain damage, an August 2014 letter from R.R., M.D., the Veteran's treating private physician, diagnosed the Veteran with organic brain syndrome. This satisfies the first prong of the service connection claim. Additionally, the Veteran's service treatment records show the Veteran was treated for a blow to the head in December 1991. In particular, he was hit with a broom handle by an intoxicated assailant and punched in the left eye while he was sleeping. In light of the fact the Veteran has a present diagnosis of organic brain syndrome and a head injury in-service was documented, the Board finds a medical examination is necessary to determine whether there is a causal connection between the in-service injury to the Veteran's current organic brain syndrome prior to adjudication. Additionally, as noted in the Introduction, in May 2017, the Veteran filed a timely NOD with the issues of entitlement to an initial disability rating in excess of 70 percent for a psychotic disorder due to another medical condition and entitlement to an earlier effective date for basic eligibility to DEA. The Veteran has not been provided with an SOC that addresses either of those issues; thus, the Board is required to remand, rather than refer, the issue to the attention of the AOJ. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with an SOC addressing the issue of entitlement to an initial disability rating in excess of 70 percent for a psychotic disorder due to another medical condition and denial of an earlier effective date for basic eligibility to DEA. The claims should only be returned to the Board if the Veteran files a timely substantive appeal as to any of the issues. 2. Obtain updated VA and private treatment records and associate the records with the claims file. Any negative reply should be properly included in the claims file. 3. Following the completion of the above, make arrangements for the Veteran to be afforded a VA examination for his brain. The claims file must be provided to the examiner for review. The examiner is asked to provide an opinion on the following: a. whether it is at least as likely as not ( a 50 percent of greater probability) that the Veteran's organic brain syndrome is etiologically related to his service. A complete rationale must be provided for all opinions presented. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Thereafter, review the claims folder to ensure that all of the foregoing development has been conducted and completed in full. If not, corrective action should be taken. The AOJ should then re-adjudicate the claim. If the benefit sought on appeal is not granted, the AOJ must provide a supplemental statement of the case to the Veteran and his representative. An appropriate period of time should be allowed for response. The claims folder should then be returned to the Board, 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). ______________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs