Citation Nr: 1803378 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 01-07 832A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an effective date earlier than February 3, 2011 for the assignment of a 20 percent disability rating for a lumbar spine disability. 2. Entitlement to an effective date earlier than February 3, 2011 for the assignment of a 10 percent disability rating for a right ankle disability. 3. Entitlement to an increased rating for lumbar spine disability, rated as 0 percent disabling prior to June 2, 2006, as 10 percent disabling prior to February 3, 2011, and as 20 percent disabling after February 3, 2011. 4. Entitlement to an increased rating for a right ankle disability, rated as 0 percent disabling prior to February 3, 2011, and as 10 percent disabling after February 3, 2011. 5. Entitlement to a compensable rating for a right elbow scar. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. R. Higgins, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1977 to January 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2000 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which continued 0 percent ratings for the Veteran's lumbar spine disability, right ankle disability, and right elbow scar. A September 2011 rating decision increased the disability rating for a lumbar spine disability, from 0 percent to 20 percent, effective February 3, 2011, and increased the disability rating for a right ankle disability, from 0 percent to 10 percent, effective February 3, 2011. Moreover, a July 2012 rating decision increased the disability rating for a lumbar spine disability, from 0 percent to 10 percent, effective June 2, 2006. However, as these grants do not represent total grants of benefits sought on appeal, the claims for increase remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Additionally, in November 2011, the Veteran filed a timely notice of disagreement with the assigned effective dates in the September 2011 rating decision for the 20 percent rating for a lumbar spine disability and the 10 percent rating for a right ankle disability. The Board remanded these matters for a statement of the Case in September 2013; however the Veteran did not perfect an appeal of the issues. During the Veteran's September 2017 hearing before the undersigned, he presented testimony in support of these claims. Therefore, the Board will take jurisdiction of these two issues. See Percy v. Shinseki, 23 Vet. App. 37 (2009). In July 2013, the Veteran testified at a travel board hearing before a Veterans Law Judge who is no longer employed by the Board. He elected to have another hearing and in September 2017, he presented testimony before the undersigned Veterans Law Judge. Transcripts of both hearings are associated with the claims file. The issues of earlier effective dates and entitlement to increased ratings for a lumbar spine disability and right ankle disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's right elbow scar is stable, not painful, covers an area of less than 39 square centimeters, and does not cause any functional limitation. CONCLUSION OF LAW The criteria for a compensable rating for a right elbow scar have not been met. 38 U.S.C.A. §§ 1155; 5107 (2012); 38 C.F.R. §§ 4.118, Diagnostic Code 7804 (2007), Diagnostic Code 7804 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. Veterans Claims Assistance Act of 2000 (VCAA) 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. 2017) (applying Scott to a duty to assist argument). This claim was most recently remanded by the Board in September 2013. At that time, the RO was instructed in relevant part to contact the Veteran and afford him the opportunity to identify or submit any outstanding medical records; schedule the Veteran for VA examination related to his right elbow scar; and issue a Supplemental Statement of the Case (SSOC). A claimant has the right to substantial compliance with remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the United States Court of Appeals for Veterans Claims Court (Court) or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see also D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required). Here, the RO contacted the Veteran, who identified outstanding private medical records, and they were obtained and associated with the claims file. The RO scheduled the Veteran for a VA examination for his right elbow scar. The claim was subsequently readjudicated, and an SSOC was issued in June 2016. As such, the Board finds that there has been substantial compliance with its September 2013 remand directives. The Board will now review the merits of the Veteran's claims Increased Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017). Evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder. However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where a veteran appeals the initial rating assigned for a disability, evidence contemporaneous with the claim and the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time. Id. During the rating period on appeal, VA amended the rating criteria for the evaluation of scars, which became effective on October 23, 2008. Under the rating criteria either prior to or after October 23, 2008, Diagnostic Code 7800 applies to scarring of the head, face, and neck. As such, it is inapplicable to the Veteran's scar rating and will not be discussed below. With respect to rating criteria in effect prior to October 23, 2008, under Diagnostic Code 7801, scars other than on the head, face, or neck, which are deep or cause limited motion, warrant a 10 percent rating for an area or areas exceeding 6 square inches (39 square centimeters), and a 20 percent rating for an area or areas exceeding 12 square inches (77 square centimeters). Higher ratings are available for larger affected areas. Note (2) indicates that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2007). Under Diagnostic Code 7802, for scars other than on the head, face, or neck that are superficial and that do not cause limited motion, a 10 percent rating is warranted in an area or areas of 144 square inches (929 square centimeters) or greater. Note (2) indicates that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2007). Under Diagnostic Code 7803, a 10 percent rating is warranted for an unstable and superficial scar. Note (1) indicates that an unstable scar is characterized by frequent loss of skin covering the scar. 38 C.F.R. § 4.118, Diagnostic Code 7803 (2007). This Diagnostic Code was removed from the diagnostic criteria as of October 23, 2008. Under Diagnostic Code 7804, a 10 percent rating is warranted for a superficial scar that is painful on examination. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2007). Under Diagnostic Code 7805, scars were to be rated on limitation of function. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2007). Under the current rating criteria in effect from October 23, 2008, Diagnostic Code 7801 evaluates scars, not of the head, face, or neck, which are deep and nonlinear. A 10 percent rating is assigned for an area or areas of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters), with higher ratings being available for larger affected areas. Note (1) indicates that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2017). Superficial and nonlinear scars not on the head, face, or neck are evaluated under Diagnostic Code 7802. Under this Diagnostic Code, a compensable rating is not available unless such scars cover an area of at least 144 square inches (929 square centimeters). Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2017). Diagnostic Code 7804 (there is no Diagnostic Code 7803) assigns ratings for scars that are unstable or painful. This Diagnostic Code assigns a 10 percent rating for one or two qualifying scars, a 20 percent rating for three or four qualifying scars, and a 30 percent rating for five or more qualifying scars. 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 is added to the evaluation based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2017). Under Diagnostic Code 7805, any other scars, including linear scars, are to be rated based on any disabling effects and the appropriate diagnostic code for such effects. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2017). The Veteran was afforded a VA scar examination in July 2000. The examiner noted that the scar was benign without any problems and did not limit the Veteran's elbow with any difficulty. The April 2011 VA examination noted that the scar was a result of shrapnel wound to his right elbow. The examiner noted that Veteran's complaints were not related to his scar, but his medial epicondyle which was tender and painful to touch. The examiner noted that there was no pain associated with the scar and there was no frequent loss of skin covering the scar, ulcerations, or breakdowns. The scar measured three inches in length and was keloid-like. The Veteran was also noted to have full range of motion of his right elbow. The examiner provided that the Veteran's issue was his medial epicondyle and not his scar, as the scare was not affected at all. The Veteran underwent an April 2016 VA scar examination. The examiner provided that the Veteran's scar was not painful, unstable, or with frequent loss of covering of skin over the scar. The Veteran's scar was not a result of burns. The examiner documented that the scar was along the right elbow, was superficial, and non-linear with a length and width of 8 x 1 centimeters. An absence of superficial and deep non-linear scars was noted. The examiner noted no scar to the Veteran's head, face, or neck. The examiner provided that Veteran's scar did not result in a limitation of function, nor there no other pertinent physical findings, complications, conditions, signs or symptoms associated with the scar. Finally, the examiner noted that the scar did not impact the Veteran's ability to work. Based on the foregoing evidence, the Board determines that a compensable rating cannot be assigned under any of the diagnostic codes available for the Veteran's service-connected scar. Assuming that the Veteran's scars are deep, which they are not, they do not warrant a compensable rating under prior or current Diagnostic Code 7801, as they measure an area less than 39 square centimeters, which is required in order to receive a 10 percent rating. Under prior and current Diagnostic Code 7802 for superficial scars, a compensable rating is not available because the Veteran's scars cover an area of less than 929 square centimeters. A compensable rating also is not available under prior Diagnostic Codes 7803 (for unstable scars) or 7804 (for painful scars) or under current Diagnostic Code 7804 (for unstable or painful scars) because the evidence reflects that pain and instability were not associated with the scar (his medial epicondyle, not his scar) was tender and painful to touch. The Board has considered whether a compensable rating may be assigned under a different diagnostic code. As there is no limitation of function or impact on the Veteran's ability to work associated with the scar, the Board finds that a separate rating under a different diagnostic code is not warranted. The Board finds further that there is no basis for staged ratings of the Veteran's scar pursuant to Fenderson, as the Veteran's scar remanded stable throughout the appeal period. In sum, the Board concludes that the symptomatology noted in the medical and lay evidence has been adequately addressed by the current rating and that the Veteran's service-connected scar does not meet any applicable rating criteria for a compensable rating. 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, 28 Vet. App. 366, 369-370 (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 Entitlement to a compensable rating for a right elbow scar is denied. REMAND The Board notes that the Veteran has been provided multiple VA examinations during the periods on appeal related to his lumbar spine disability and right ankle disability. The Veteran was provided with VA examinations to determine the severity of his lumbar spine disability and right ankle disability in April 2016. However, in light of the U.S. Court of Appeal for Veteran's Claims (Court) decision in Corriea v. McDonald, 28 Vet. App. 158 (2016), the Board finds that the previous examinations are inadequate. In Correia, the Court found that under 38 C.F.R. § 4.59, a VA examination must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing (as appropriate), and, if possible, with rating of motion measurements of the opposite undamaged joint. To date, the Veteran has not been afforded a VA examination that includes such testing. As such, per Corriea, the examinations are inadequate and a remand is necessary to afford the Veteran an adequate examination. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001). The Board finds that the claims for earlier effective dates are inextricably intertwined with the increased rating claims and adjudication of those issues are deferred. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a new VA examination to assess the current severity of his lumbar spine disability. The claims folder must be provided to the examiner in conjunction with the examinations. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies, must be accomplished. All ranges of motion involving the Veteran's spine disability should be tested, and the examiner should note if repeated range of motion testing results in additional limitation of motion, or in functional loss, or there is weakened movement, excess fatigability, or incoordination attributable to the Veteran's disability, expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. In order to comply with the Court's recent precedential decision in Correia v. McDonald, the examiner must test and record the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. 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. Furthermore, an opinion must be given as to whether any pain associated with the Veteran's spine disability could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups. The examiner should also report the total duration of incapacitating episodes during the past 12 months as due to each disability. 2. Schedule the Veteran for a new VA examination to assess the current severity of his right ankle disability. The claims folder must be provided to the examiner in conjunction with the examinations. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies, must be accomplished. All ranges of motion involving the Veteran's right ankle disability should be tested, and the examiner should note if repeated range of motion testing results in additional limitation of motion, or in functional loss, or there is weakened movement, excess fatigability, or incoordination attributable to the Veteran's disability, expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. In order to comply with the Court's recent precedential decision in Correia v. McDonald, the examiner must test and record the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing on both ankles. 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. Furthermore, an opinion must be given as to whether any pain associated with the Veteran's ankle disability could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups. 3. Then, readjudicate the Veteran's increased rating and earlier effective date claims on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case. Allow an appropriate period of time for response. 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. §§ 5109B, 7112 (2012). ______________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs