Citation Nr: 1803076 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 13-16 561 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial compensable rating for scars of the left thigh. 2. Entitlement to an initial compensable rating for status post surgery spontaneous pneumoarthrosis. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jonathan M. Estes, Associate Counsel INTRODUCTION The Veteran had active duty service from July 2003 to August 2010. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decisions issued in October 2010 and January 2011 by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2015, the Board remanded the issues on the title page to afford the Veteran his requested hearing. Thereafter, in December 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The issue of entitlement to an initial compensable rating for status post surgery spontaneous pneumoarthrosis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving all doubt in his favor, the Veteran's two scars of the left thigh are painful, but do not affect the head, face, or neck, are not deep, are not of a size to warrant a compensable rating, and do not result in any additional disabling effects. CONCLUSION OF LAW The criteria for an initial rating of 10 percent, but no higher, for scars of the left thigh have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.118, Diagnostic Code (DC) 7804 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Preliminary Matters 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); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). While the Veteran alleged that the March 2010 and February 2013 exams were inadequate in regards to his thigh scars, which will be discussed herein, neither the Veteran nor his representative has alleged any other deficiency with respect to VA's duties to notify or assist. See Scott, supra (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 duty to assist argument). II. Analysis Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). In an October 2010 rating decision, the AOJ granted service connection for the Veteran's left thigh scars with a noncompensable rating pursuant to 38 C.F.R. § 4.118, DC 7802, effective August 23, 2010, the day after his discharge from active duty. Scars are rated under 38 C.F.R. § 4.118, DCs 7800 through 7805. DC 7800 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. DC 7801 pertains to burn scars or scars due to other causes, not of the head, face, or neck that are deep and nonlinear. The Veteran's scars are currently rated as noncompensably disabling under DC 7802, which pertains to burn scars or scars due to other causes not of the head, face, or neck that are superficial and nonlinear. Under this DC, a 10 percent rating is assigned when the scar(s) cover an area or areas of 144 square inches (929 sq. cm) or greater. No other rating is provided by this DC. Note (1) states that a superficial scar is one not associated with underlying soft tissue damage. DC 7804 provides that one or two scars that are unstable or painful warrant a 10 percent evaluation; three or four scars that are unstable or painful warrant a 20 percent rating; and five or more scars that are unstable or painful warrant a 30 percent rating. 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, the rater is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. at Note (2). Scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804, when applicable. Id. at Note (3). DC 7805 provides that any disabling effect(s) associated with scars not considered in a rating provided under DCs 7800-7804 are to be evaluated under an appropriate DC. As an initial matter, the Board finds that, while the AOJ assigned an initial noncompensable rating under DC 7802, it is appropriate to change the DC under which the Veteran's scars of the left thigh are rated to DC 7804 in light of the fact that such are painful. In Butts v. Brown, 5 Vet. App. 532 (1993), the United States Court of Appeals (Court) held that the selection of the proper diagnostic code is not a question of law subject to the de novo standard of review. Accordingly, the Court held that, as VA and the Board possess specialized expertise in determining the application of a particular diagnostic code to a particular condition, their determination is due greater deference. Indeed, the Court has also held that, although the reason for the change must be explained, the VA and the Board may change the diagnostic codes under which a disability or disabilities are evaluated. Pernorio v. Derwinski, 2 Vet.App. 625 (1992). As such, in the instant case, the Board finds it appropriate to change the DC under which the Veteran's scars of the left thigh is rated from DC 7802 to DC 7804. In this regard, the Board notes that such change does not result in severance of service connection for the Veteran's service-connected disability, or a reduction in the evaluation of such disability (in fact, such allows for the award of a 10 percent rating), and, therefore, there is no prejudice to him in the Board's actions herein. Read v. Shinseki, 651 F.3d 1296, 1300 (Fed. Cir. 2011), Murray v. Shinseki, 24 Vet.App. 420 (2011). In this regard, the Board finds that the Veteran is entitled to an initial 10 percent rating, but no higher, for his scars of the left thigh under DC 7804. Specifically, at a March 2010 VA examination, the Veteran reported that his multiple scars, to include those located on his thighs, were painful. Upon examination, two scars were located on the left thigh that measured 1.0 cm by 1.5 cm and 1.0 cm by 1.0 cm. The scars were not painful on examination and there was no skin breakdown. Such scars were noted to be superficial with no underlying tissue damage, inflammation, edema, keloid formation, or disfigurement. Further, the scars did not limit the Veteran's motion and there was no limitation of function due to such scars. In February 2013, the Veteran was afforded another VA examination which addressed, among other things, his left thigh scars. The examiner noted two superficial and non-linear scars on the left thigh measuring 1 x 1 cm, and 1 x 1.5 cm, for a total of 2.25 sq. cm. Upon examination, it was noted that the scars were not painful or unstable. During his December 2016 Board hearing, when asked if his left thigh scars were painful, the Veteran testified that they were. The Veteran also testified that he felt a numbing discomfort when they were touched, and he reported a twitching or cramping sensation in the area around his scars. He reported these symptoms had been constant through the appeal period. The Veteran is competent to report symptoms he experienced. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms). Further, the Veteran's reports of experiencing pain in his left thigh scars throughout the appeal period is reinforced by his report during the March 2010 examination. Consequently, the Board finds that an initial 10 percent, but no higher, for such scars is warranted under DC 7804. In this regard, there are only two scars present on the Veteran's left thigh and such are not shown to be unstable. Consequently, a higher rating under such DC is not warranted. Similarly, a higher or separate rating is not warranted under any other potentially applicable DC, to include DC 7800, 7801, 7802, and 7805. Specifically, such scars do not affect the head, face, or neck, are not deep, are not of a size to warrant a compensable rating, and do not result in any additional disabling effects. In this regard, the Board is cognizant of the Veteran's reports that his left thigh scars result in numbing and a twitching or cramping sensation in the area around his scars; however, objective examination fails to reveal any neurological impairment associated with such scarring. Specifically, at the March 2010 VA examination, neurological examination of the lower extremities was within normal limits. The Board further notes that, during the December 2016 hearing, the Veteran alleged that the March 2010 and February 2013 examinations were inadequate because the examiners did not describe the symptoms he experienced as a result of his left thigh scars. In this regard, a VA examiner is presumed to have properly discharged his or her duties as a medical professional (presumption of regularity) in a review of the record, in interviewing the veteran, and with medical analysis applied to the significant facts of the case. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed Cir. 2009) (applying the presumption of regularity to VA medical examiners in the discharge of their regular duties). The presumption of regularity is rebuttable by clear evidence to the contrary. Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). In this case, the March 2010 examiner actually noted the Veteran's reports of experience pain related to his scars. As to the February 2013 examination, such scars were found to not be painful on examination. There is no indication that either examiner failed in their duties in providing a thorough examination. Nonetheless, the Board herein resolves doubt in the Veteran's favor and has awarded an initial 10 percent rating for his left thigh scars based on his subjective complaints of pain throughout the appeal period. The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected left thigh scars; however, the Board finds that his symptomatology has been stable during the period on appeal. Therefore, assigning staged ratings for such disability is not warranted. Neither the Veteran nor his representatives have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim. See Doucette v. Shulkin, 28 Vet. App. 366 (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). Therefore, the Board an initial rating of 10 percent, but no higher, for the Veteran's scars of the left thigh is warranted. In reaching such determination, the Board has considered and applied the benefit of the doubt doctrine. However, insofar as the Board has denied an initial rating in excess of 10 percent for such disability, the preponderance of the evidence is against such aspect of the Veteran's claim. See 38 U.S.C. § 5107; 38 C.F.R. §§4.3, 4.7. ORDER For the entire appeal period, an initial 10 percent rating, but no higher, for scars of the left thigh is granted, subject to the laws and regulations governing the payment of monetary awards. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran's lung disability is currently rated under DC 6843, which is based primarily on pulmonary function testing results. In this regard, he underwent VA examinations in connection with his initial rating claim in March 2010, August 2011, and February 2013. At the time of all three examinations, his pulmonary function test results did not meet the criteria for a compensable rating under DC 6843. However, at his December 2016 Board hearing, the Veteran testified that his lung disability had worsened in severity since the February 2013 VA examination. Furthermore, the Veteran has described symptoms associated with his lung disability that are not contemplated by DC 6843. In this regard, at his August 2011 VA examination, the examiner noted muscle pain and spasms located around the incision site from his surgery on the upper back. At the February 2013 VA examination, it was observed that the Veteran experienced discomfort on deep inspiration and shortness of breath with increased activity. Furthermore, at his December 2016 Board hearing, he reported experiencing cramp-like pain, numbness, and a burning sensation in the area where his surgeries occurred. Based on the foregoing, the Board finds that a remand is necessary in order to schedule the Veteran for an appropriate VA examination in order to assess the current nature and severity of his lung disability, to include all associated impairments. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded an appropriate VA examination to determine the current severity of his service-connected lung disability. The record, to include a copy of this Remand must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. (A) The examiner should describe the nature and severity of all manifestations of the Veteran's lung disability. In this regard, the examiner should specifically determine whether the Veteran's lung disability results in any muscle, neurologic, or musculoskeletal manifestations in light of his reports of cramp-like pain, numbness, and a burning sensation in the area where his surgeries occurred, and, if so, the nature and severity of such manifestations. (B) Pulmonary function tests should be performed. A maximum exercise capacity test (in terms of ml/kg/min oxygen consumption) should be performed unless the examiner determines that the maximum exercise capacity test may be detrimental to the Veteran. The examiner should state which test most accurately reflects the Veteran's level of disability. (C) The examiner should describe the functional impairment associated with the Veteran's lung disability. A rationale for any opinion offered should be provided. 2. 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 paragraph, 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. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter 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 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. §§ 5109B, 7112 (2012). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs