Citation Nr: 1806205 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-02 286 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 0 percent for a right upper extremity scar. 2. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Thaddaeus J. Cox, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in St. Petersburg, Florida. The Veteran appeared before the undersigned Veterans Law Judge in a July 2015 Board Hearing at the RO. A copy of the transcript is of record. The Board remanded this matter in November 2015 for a VA examination. FINDINGS OF FACT 1. The Veteran's right upper extremity scar is manifested by healed and stable, but painful surgical scar, which is not larger than 6 square centimeters. 2. The preponderance of the competent and credible evidence indicates that the Veteran's service-connected disabilities do not preclude him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating of 10 percent, but not higher, for a right upper extremity scar have been met as of August 31, 2009, but not earlier. 38 U.S.C. § 1155, 5107 (2012), 38 C.F.R. § 3.102, 3.321, 4.118, Diagnostic Code 7804 (2017). 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.340, 3.341(a), 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify a claimant of any information necessary to substantiate a claim, and to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim, to include requesting records and providing an examination. 38 U.S.C. § 5103, 5103A (2012). VA has requested and received service personnel and medical records, private medical records, and has compiled VA medical records. The Veteran does not assert that VA did not meet any duty to notify, that there are any outstanding records that need to be secured on behalf of the Veteran, or that the VA examinations during the course of this appeal are inadequate to decide this claim. Therefore, no further notification or assistance is necessary. 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 claimant does not raise them before the Board. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). Increased Rating Disability ratings are based on VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017). Separate Diagnostic Codes identify various disabilities and the criteria for a specific percentage rating to be assigned for that disability. The percentage ratings represent as far as practicably can be determined the average impairment in earning capacity due to a service-connected disability. 38 U.S.C. § 1155 (2012). A rating is assigned by comparing the extent to which a Veteran's service-connected disability impairs the ability to function under the ordinary conditions of daily life, as demonstrated by the Veteran's symptomatology, with the criteria for the percentage ratings. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.10 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1 (2017). Examination reports must be interpreted, and if necessary reconciled, into a consistent picture so that the evaluation rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2 (2017). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). However, any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Rating Schedule provides various criteria for rating scars. 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7801, 7802, 7804, 7805 (2017). Diagnostic Code 7800 applies to scars of the head, face, or neck, and is not applicable in this claim. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2017). Diagnostic Code 7801 applies to deep and nonlinear scars, and assigns 10 percent for scars with an area of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters), and 20 percent for scars with an area of at least 12 square inches (77 square centimeters) but less than 72 square inches (465 square centimeters). 38 C.F.R. § 4.118, Diagnostic Code 7801 (2017). Diagnostic Code 7802 applies to scars that are superficial and nonlinear. A 10 percent rating is warranted for a deep (associated with underlying soft tissue damage) and nonlinear scar in an area of at least 144 square inches (929 square centimeters). 38 C.F.R. § 4.118, Diagnostic Code 7802 (2017). Diagnostic Code 7804, which is the basis of the current rating, assigns a 10 percent rating for one or two scars which are painful or unstable on examination. A 20 percent rating is assigned for three or four scars which are painful or unstable on examination. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2017). Diagnostic Code 7805 directs that any other disabling effects not considered in Diagnostic Codes 7800 to 7804 be rated under an appropriate Diagnostic Code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2017). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. 38 C.F.R. § 3.159 (2017). Competent lay evidence may establish the presence of observable symptomatology and may also be sufficient to support a claim of service connection. Layno v. Brown, 6 Vet. App. 465 (1994). The Board must determine the probative weight to be assigned among evidence in a case, and to state reasons or bases for favoring one opinion over another. Winsett v. West, 11 Vet. App. 420 (1998). If all the evidence is in relative equipoise, reasonable doubt shall be resolved in the Veteran's favor, and the claim should be granted. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). If the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran, through representation, contends that the service connected residual scar from an open laceration is painful and itches. The Veteran testified in a Board hearing that the scar is tender to touch. In a February 2010 VA examination, the Veteran reported the right upper extremity scar as painful and that it itches. The scar measured 11 centimeters in length and 0.5 centimeters in width, and was located on the elbow. Underlying tissue damage was noted. The scar was noted as curved and non-linear, and encompassed an area of 5.5 square centimeters. No pain on palpation, instability, loss of covering of the skin over the scar, or loss of function was noted. A March 2012 VA examination noted the scar as non-linear and superficial. The measured length was 7 centimeters, width was 0.5 centimeters, and encompassed an area of 3.5 square centimeters. No pain or tenderness on palpation, or loss of covering of the skin over the scar was noted. A June 2017 VA examination noted the scar as linear, and 9.5 centimeters in length. The scar was noted as non-painful, non-tender, and well healed. The Board finds that a 10 percent rating is supported by the evidence. The Veteran reported a painful and itchy scar in the February 2010 VA examination. The Veteran also reported the scar was tender in the Board hearing. The Board finds the Veteran credible in those reports. As objective evidence of pain is not necessary for a rating under Diagnostic Code 7804, the Board finds the lay statements are competent and credible to support a 10 percent rating. Additionally, the Board finds that a higher or separate rating under Diagnostic Code 7801 or 7802 is not warranted since the area of the scar was only 5.5 square centimeters at largest measurement in the objective medical evidence. In addition, the evidence does not show any other disabling effects not considered in Diagnostic Codes 7800 to 7804 that must be rated under an appropriate Diagnostic Code, pursuant to Diagnostic Code 7805. Accordingly, resolving reasonable doubt in favor of the claimant, the Board finds that the evidence supports the assignment of a 10 percent rating, but not higher, as of August 31, 2009, but not earlier, for a painful scar. The Board finds the preponderance of the evidence is against the assignment of any higher or separate rating. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016). TDIU TDIU may be assigned when a Veteran's service-connected disabilities are rated less than total, but prevent the Veteran from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. If a Veteran has one service-connected disability, that disability must be rated 60 percent or more. If the Veteran has two or more service-connected disabilities, there must be at least one rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2017). Nevertheless, it is VA's established policy that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation and Pension Service, for consideration of the assignment of TDIU. 38 C.F.R. § 4.16(b) (2017). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). To establish TDIU, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2017). In reaching that determination, the central inquiry is whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Total disability will be considered to exist when there is present any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15 (2017). The Veteran, through representation, contends that the service-connected disabilities prevent gainful employment. The Veteran's current service-connected disabilities are diabetes mellitus, rated 20 percent; peripheral neuropathy of the left and right lower extremities, rated 10 percent each; and a right upper extremity scar, now rated 10 percent. Even with the granted 10 percent increased rating, the Veteran's combined service-connected disability rating is 40 percent. Thus, the Veteran does not meet the schedular criteria for TDIU. 38 C.F.R. § 4.16(a) (2017). Nevertheless, a Veteran may be entitled to a TDIU if it is established that he is unable to secure or follow substantially gainful employment as a result of the effects of the service-connected disabilities. 38 C.F.R. § 4.16(b) (2017). Therefore, the Board must determine whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment, or work that is more than marginal, which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The Veteran submitted a statement from a prior employer who attested that the Veteran's construction work with the company ended due to dizzy spells and fainting. The Veteran has claimed difficulty holding onto tools, aching in the hand and legs, and that he has to sit down often. The Veteran also stated having no experience with computers. A February 2010 VA diabetes mellitus examination noted that diabetes caused no effects on occupation. The examiner noted that the Veteran's non-service connected vertigo prevented work in construction. The March 2012 VA scar examination noted that the scar did not impact the ability to work. An April 2015 VA diabetes mellitus examination noted no impact on the ability to work. A VA peripheral neuropathy examination in April 2015 noted no impact on the ability to work. The June 2017 VA scar examination noted that the scar did not impact the ability to work. The Board finds the preponderance of the evidence is against a finding that service-connected disabilities prevent gainful employment. Lay evidence indicated the inability to work in construction or with computers. However, gainful employment does not consist solely of construction or computer work. Neither the Veteran nor representative presented any evidence which indicated the Veteran could not work a sedentary job as a result of the service-connected disabilities. Additionally, four VA medical examiners opined that the Veteran's individual service-connected disabilities did not impact the ability to secure gainful employment. The evidence does not show any occupational effects of the combination of service-connected disabilities that could be reasonable expected to preclude employment. Consequently, the Board finds that preponderance of the evidence shows that the Veteran is not unemployable solely due to service-connected disabilities. The impact of nonservice-connected disabilities may not be considered under the criteria for TDIU, which only considers service-connected disabilities. In making that determination, the Board is not refuting the Veteran's noted physical limitations or his contentions that his disabilities affect his ability to work. However, the Board finds that the objective examinations which found that the disabilities did not preclude employment are more persuasive because of the experience and training of the examiners. Therefore, the Board finds that the criteria for entitlement to TDIU, or for invoking the procedures in 38 C.F.R. § 4.16(b), for entitlement to TDIU are not met. As the Board finds that the preponderance of the evidence is against the claim, entitlement for a TDIU is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to a 10 percent rating, but not higher, as of August 31, 2009, but not earlier, for a painful right elbow scar is granted. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs