Citation Nr: 1804628 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 11-00 258A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a right elbow disability. 2. Entitlement to a compensable rating for right hand scar to include the propriety of the reduction from 10 percent to 0 percent, effective September 1, 2010. 3. Entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from July 1986 to November 1989, March 2006 to July 2006, and from May 2007 to March 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky (hereinafter Agency of Original Jurisdiction (AOJ)). This case was remanded for further development in November 2013. The Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in August 2017. A copy of the transcript is of record. The issue of entitlement to service connection for a right elbow disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The AOJ's decision to reduce the Veteran's service connected right hand scar from 10 percent to 0 percent, effective September 1, 2010, was not proper as the AOJ failed to consider whether the evidence demonstrated material improvement reasonably certain to continue under the ordinary conditions of life. 2. Right hand scar is not manifested by three or four scars that are unstable or painful. CONCLUSIONS OF LAW 1. As the AOJ's reduction of the disability rating for the service connected right hand scar from 10 percent to 0 percent disabling, effective September 1, 2010, was not in accordance with law, the criteria for restoration of the 10 percent rating are met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.105(e), 3.159, 4.3, 4.7, 4.118, DC 7804 (2017). 2. The criteria for a rating higher than 10 percent for right hand scar are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118 Diagnostic Codes 7804 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The Board initially notes that VA has procedural requirements pursuant to The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096(Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). A review of the record does not disclose that the Veteran and his representative have specifically raised any procedural issues to the AOJ or the Board, even when construing the Veteran's contentions liberally. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (Board required to address only those procedural arguments specifically raised by the Veteran, though at the same time giving the Veteran's pleadings a liberal construction). ANALYSIS Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal concerning an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In a January 2009 rating decision, the Veteran was granted service connection for a right hand scar evaluated as 10 percent disabling, effective March 9, 2008. This was based on the results from a VA examination reflecting a small scar on his right palmer crease which was tender to palpation. In February 2010, the AOJ informed the Veteran of its proposal to reduce his disability rating from 10 to 0 percent. This was based on the results from a VA examination wherein the examiner stated that there was no pain in the Veteran's scar. In a June 2010 rating decision, the Veteran's service-connected right hand scar was reduced from 10 to 0 percent disabling, effective September 1, 2010. The Veteran appeals the reduction in his rating. At his hearing in 2017, the Veteran testified that his scar was painful to the touch. A veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155. Prior to reducing a veteran's disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (2017); see also Brown v. Brown, 5 Vet. App. 413, 420 (1993). Such review requires in any rating reduction case VA to determine (1) based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability; (2) whether the examination reports reflecting such change are based upon thorough examinations; and (3) whether any improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014) (citing Brown, 5 Vet. App. at 421). It is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. C.F.R. § 4.1. If an examination report does not contain sufficient detail, or the diagnosis is not supported by the findings on the examination report, it must be returned as inadequate for rating purposes. 38 C.F.R. § 4.2. When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examinations or in use of descriptive terms. 38 C.F.R. § 4.13. Finally, it must be considered that 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. As to the propriety of the reduction, for reductions in rating to be properly accomplished, specific requirements must be met. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The requirements for reduction of ratings in effect for five years or more are set forth at 38 C.F.R. § 3.344(a) and (b). The Board is required to establish, by a preponderance of the evidence, that a rating reduction on appeal is warranted. See Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). Upon review of the evidence, the Board finds that the reduction in the rating from 10 percent to 0 percent for the Veteran's service-connected right hand scar under DC 7804 was not proper, and restoration of the 10 percent rating is therefore warranted. To that end, the Board recognizes that, in implementing the proposed rating reduction, the AOJ weighed the evidence of record, which indicated that the Veteran's service-connected right hand scar no longer met the criteria for a 10 percent rating under DC 7804. However, review of the February 2010 and June 2010 rating decisions, the December 2010 Statement of the Case, and the November 2012 and June 2013 Supplemental Statement of the Case, all reflect that the AOJ failed to make a specific determination that there was an actual improvement in the Veteran's ability to function under the ordinary conditions of work and life. See 38 C.F.R. §§ 4.10, 4.13. The AOJ's failure to make such a determination in this case renders the reduction improper. The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In fact, the Court has consistently held that when VA reduces a Veteran's disability rating without following the applicable regulations, the reduction is void ab initio and will be set aside. Greyzck v. West, 12 Vet. App. 288, 292 (1999); Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). Here, the AOJ failed to consider whether any improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Kitchens, 7 Vet. App. at 324 (1995); Brown, 5 Vet. App. at 420-421 (1993). Such an omission is error and not in accordance with the law. Greyzck, 12 Vet. App. at 292; Hayes, 9 Vet. App. at 73; Kitchens, 7 Vet. App. at 324. At his hearing in 2017, the Veteran testified that his scar was painful and the Board finds insufficient evidence of record which impeaches his testimony. Accordingly, the 10 percent rating assigned for right hand scar under DC 7804 is restored. In making this decision, the Board will next address whether a rating higher than 10 percent disabling is warranted for the Veteran's right hand scar. The Veteran's disability is rated under DC 7804. Under Diagnostic Code 7804, 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 evaluation. Five or more scars that are unstable or painful warrant a 30 percent evaluation. Note (2) for that code provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. The January 2010 VA examination disclosed that the Veteran had a .4 x1.6 cm scar located on the dorsum of the right hand between the distal portion of the fourth and fifth metacarpal and a .1x 2. 5cm L shaped scar that was located on the ventral side of the hand (palm) between the fourth and fifth distal metacarpal. The scars were not painful on examination and there was no adherence to underlying tissue. The texture of the skin was smooth with no irregularity, atrophy, shininess or scaliness. The scars were not unstable but were described as superficial with no underlying soft tissue damage and not deep. There was no limitation of motion or other limitation of function caused by the scars, nor were the scars disfiguring. When examined in June 2012, the examination disclosed that the Veteran had three linear scars. One scar measured 1.5 x 1/4 cm and two scars were 1.0 x 1/8 cm. He also had a superficial nonlinear scar that measured 1/8 x 1/8 cm. The scars were not painful on examination and/or unstable. There was no limitation of motion or other limitation of function caused by the scars, nor were the scars disfiguring. While the VA examinations found that the Veteran did not have painful scars of the right hand, the Board notes that the Veteran has testified that he has two scars of the right hand that are painful to touch. The Veteran is competent to report his pain. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board has considered the Veteran's testimony and finds that he is competent and credible in reporting the severity of his disability. Accordingly, as the Veteran has described two scars that are painful the criteria for a 10 percent rating are met. The objective and subjective evidence of record, however, does not show three or four scars that are unstable and/or painful as to warrant a rating higher than 10 percent. At most, the Veteran's right hand scar demonstrates there are two painful scars that are not unstable. At his hearing in 2017, the Veteran denied unstable skin symptoms. The evidence shows that the scars associated with the Veteran's disability are not of the size and/or severity so as to warrant a rating higher than 10 percent under the rating criteria pertaining to scars. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7804. Accordingly, a rating higher than 10 percent is denied. The Board has also considered Diagnostic Code 7805 which provides that the scar be rated on limitation of function of the affected part. Throughout this appeal, at most, the Veteran has complained that the scar is painful. The Board notes, however, that pain itself does not rise to the level of functional loss as contemplated by VA regulations. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Nothing in the record suggests that the Veteran has limitation of function of the part affected other than the 10 percent evaluation assigned for the characteristics of right hand strain. Therefore, Diagnostic Code 7805 is inapplicable. ORDER As the reduction in the disability rating from 10 percent to 0 percent for the Veteran's service connected right hand scar was not proper, restoration of the 10 percent rating is granted. Entitlement to a rating higher than 10 percent for right hand scar is denied. REMAND The Veteran appeals the denial of service connection for a right elbow disability. During his August 2017 hearing, the Veteran testified that he punctured his right hand with a nail during service in 2007. While recovering, he said he was trying to brace himself but fell and hit his elbow against a table or something. He claims that his right elbow was injured in service and that he has been informed that he has damaged nerves in the elbow. The record shows that the Veteran had surgery on his right extremity in April 2009. At that time, his elbow was operated on because of possible nerve compression. The Veteran had a cervical fusion in August 2010 due to pain radiating to the right arm. During the November 2010 VA examination, the Veteran was diagnosed with right arm pain with unclear etiology and status post penetrating wound right hand well healed. X rays of the elbow at that time were unremarkable. With regards to the right elbow, the VA examiner found that the Veteran did not have any organic pathology which would give rise to the symptoms reported and that there was no disability on examination. In September 2017, however, Dr. S stated that the Veteran has a history of cervical disc disease and reflex sympathetic dystrophy causing significant dysfunction of his right upper extremity. The Veteran claims that he has a right elbow disability that is related to service. The Veteran has not been afforded a VA examination addressing whether he has a right elbow disability that is related service. Pursuant to 38 U.S.C. § 5103A (d)(2) and 38 C.F.R. § 3.159 (c)(4)(i), VA will obtain an examination or an opinion if it is necessary to decide the claim. In light of the record, the Board finds that a VA compensation examination(s) is needed for proper adjudication of the above claim. Furthermore, the Veteran claims that he is unemployable because of his service connected right hand disabilities. The Board finds that a TDIU claim is considered to have been raised by the record and thus is a component of the increased rating claim on appeal before the Board. Accordingly, the Board has jurisdiction over this issue. The Board notes, however, an opinion has not been obtained to determine what impact, if any, the Veteran's service-connected disabilities have on his ability to maintain employment. On remand, such an opinion should be obtained and associated with the record. Ongoing VA treatment records should also be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder complete VA treatment records since 2017. 2. Schedule the Veteran for a VA examination to address the nature and etiology of his right elbow disability. The examiner must be provided access to the Veteran's VBMS file. As to each and every right elbow disability diagnosed at the examination, or diagnosed in the record, the examiner must opine whether it is at least as likely as not, i.e., is there a 50/50 chance that the Veteran's disability had its onset in service or was caused by service. The VA examiner should provide a complete rationale for any opinions provided. The examiner must reconcile any opinion with the service treatment and personnel records, any post-service diagnoses, lay statements and testimony of the Veteran. If he or she rejects the lay evidence, an explanation must be provided, and the examiner should note that the mere passage of time without treatment is not a sufficient basis for finding that no relationship between a current disability and service exists. 3. Schedule the Veteran for a VA examination(s) to determine the impact his service connected disabilities, either singly or cumulatively, have on his ability to obtain or retain employment. The examiner must be provided access to VBMS. All findings should be reported in detail. All functional impairment caused by service connected disorders should be set out in detail in the report. A complete rationale for all opinions should be provided. 4. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the issues on appeal. If the benefits sought are not granted, issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his representative an opportunity to respond. 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). ______________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs