Citation Nr: 18142677 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 15-27 343A DATE: October 17, 2018 ORDER Whether new and material evidence has been received to reopen the claim of entitlement to service connection for low back disability is denied. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for right ankle disability is granted. Entitlement to service connection for right ankle disability is granted. Entitlement to a rating in excess of 10 percent for a neck scar is denied. Entitlement to a rating in excess of 10 percent for painful scars of the right wrist and neck is denied. Entitlement to an effective date prior to February 21, 2013 for the assignment of a 10 percent rating for a right wrist scar is denied. REMANDED Whether new and material evidence has been received to reopen the claim of entitlement to service connection for right hand disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a January 2008 rating decision, the Veteran’s claims for service connection for low back and right ankle disabilities were denied; the decision was not appealed and no new and material evidence was submitted within a year of that decision. 2. The evidence received since the January 2008 rating decision as to low back disability is cumulative or redundant of the evidence previously of record and is not sufficient to raise a reasonable possibility of substantiating the claim of entitlement to service connection for low back disability. 3. The evidence received since the January 2008 rating decision as to right ankle disability includes evidence that relates to an unestablished fact necessary to substantiate the claim for service connection for right ankle disability, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claims. 4. The Veteran’s right ankle disability is etiologically related to active service. 5. The Veteran’s service-connected neck scar is not productive of visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or at least two characteristics of disfigurement. 6. The Veteran’s linear scar of the right wrist is painful but not deep or unstable; it does not cover an area of at least 72 square inches (465 square centimeters); and it does not affect the functioning of the affected part, throughout the entire course of the appeal. 7. There was no informal claim, formal claim, or written intent to file a claim for an increased rating for the Veteran’s service-connected right wrist scar following a final January 2008 rating decision and prior to February 21, 2013. 8. It is not factually ascertainable that an increase in the Veteran’s right wrist scar occurred prior the February 21, 2013. CONCLUSIONS OF LAW 1. The January 2008 rating decision denying service connection for low back disability is final. 38 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has not been received since the January 2008 rating decision that is sufficient to reopen the Veteran’s claim of entitlement to service connection for low back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The January 2008 rating decision denying service connection for right ankle disability is final. 38 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. New and material evidence has been received since the January 2008 rating decision that is sufficient to reopen the Veteran’s claim of entitlement to service connection for right ankle disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 5. The criteria for service connection for right ankle disability are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 6. The criteria for a rating in excess of 10 percent for service-connected neck scar has not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.118, Diagnostic Codes 7800-7805. 7. The criteria for a rating in excess of 10 percent for a right wrist scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.118, Diagnostic Codes 7801-7805. 8. The criteria for an effective date prior to February 21, 2013 for the assignment of a 10 percent rating for a right wrist scar have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1975 to March 1979. New and Material Evidence New evidence is defined as 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117-18, the U.S. Court of Appeals for Veterans Claims (Court) clarified that the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability. The Veteran’s claim of entitlement to service connection for low back disability was denied in a January 2008 rating decision. The Veteran did not appeal the January 2008 rating decision, nor was any new and material evidence submitted within a year of the January 2008 rating decision. 38 C.F.R. §3.156 (b). The January 2008 rating decision thereby became final. At the time of the January 2008 rating decision, the record consisted of the Veteran’s service treatment records, VA treatment records, and a December 2007 VA spine examination report. Evidence received since the January 2008 rating decision includes additional VA treatment records and June 2015 VA spine examination report. The Board finds that the evidence added to the record since the January 2008 rating decision is new but not material. The claim of entitlement to service connection for low back disability was previously denied because the evidence of record, to include a VA examination report, showed that the Veteran’s current low back disability diagnosed as arthritis was not related to his in-service low back injury. Evidence added to the record since the last final January 2008 rating decision includes new evidence such as updated VA treatment records and a June 2015 VA spine examination report which concluded that the Veteran’s low back disability was not related to active service. While this evidence is new as it was not before decision makers in January 2008, this evidence is cumulative and redundant of the evidence of record prior the January 2008. The June 2015 VA examiner concluded that the Veteran’s low back disability was less likely than not related to service to include his inservice low back injury, that the disability was likely related to aging. The Board finds that this examination concurs with and has the same conclusions and rationale as the December 2007 VA spine examination report. In any event, it is clearly not supportive of the Veteran’s claim. Therefore, the Board finds that this is redundant evidence of record. Accordingly, the Board finds that new and material evidence has not been received to reopen the claim for entitlement to service connection for low back disability, and the petition to reopen the previously denied claim is denied. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for right ankle disability. The Veteran’s claim of entitlement to service connection for a right ankle disability was denied in a January 2008 rating decision. The Veteran did not appeal the January 2008 rating decision, nor was any new and material evidence submitted within a year of the January 2008 rating decision. See 38 C.F.R. §3.156 (b). The January 2008 rating decision thereby became final. At the time of the January 2008 rating decision, the record consisted of the Veteran’s service treatment records, VA treatment records, and private treatment records. Evidence received since the January 2008 rating decision includes additional VA treatment records and the VA examination reports concerning the Veteran’s claim for entitlement to service connection for right ankle disability that concludes the condition was related to active service. This evidence is presumed credible for the limited purposes of reopening the claim, and when that is done, the new information is considered to be material and is therefore sufficient to reopen the previously-denied claims. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the claims are reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303 (d). The Veteran asserts that service connection is warranted for right ankle disability. A review of the Veteran’s service treatment records shows that the Veteran was treated for a right ankle sprain in March 1978. A June 2015 VA examination reported noted that the Veteran had right ankle instability and after a review of the claims file and a physical examination of the Veteran, it was determined that it was as likely as not that the ankle condition was related to the in-service injury that occurred in 1978. The examiner remarked that the current ankle condition appeared to be an acute and transitory condition related to service. The Board finds that the June 2015 VA examination report of record is adequate to grant the Veteran's claim because the examiner thoroughly reviewed and discussed the relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusion reached that the right ankle disability was as likely as not related to the documented ankle injury noted in the service treatment records. The Board finds that VA examiner's opinion to be competent, credible, persuasive, and probative as to grant the Veteran's claim. Accordingly, the Board finds that the evidence supports the claim and entitlement to service connection for a right ankle disability is granted. Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155, 4.1. Where there is a question as to which of two ratings shall be applied, 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. Diagnostic Code 7800 is for disfigurement of the head, face or neck, considers at Note (1), among other factors, eight (8) characteristics of disfigurement which are: (1) scar 5 or more inches (13 or more cm.) in length; (2) scar at least one-quarter inch (0.6 cm.) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Disfiguring scars of the head, face or neck with one characteristic of disfigurement warrant a 10 percent rating. With 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, lips), or; with two or three characteristics of disfigurement warrant a 30 percent rating. Diagnostic Code 7801 is used for rating scars not of the head, face, or neck that are deep and nonlinear. Such scars in an area of at least 6 square inches (39 square centimeters (cm)) but less than 12 square inches (77 square cm) warrant a 10 percent rating. A 20 percent rating requires an area of at least 12 square inches (77 square cm) but less than 72 square inches (465 square cm). A 30 percent rating requires an area of at least 72 square inches (465 square cm) but less than 144 square inches (929 square cm). A 40 percent rating requires an area of 144 square inches (929 square cm) or greater. A qualifying scar is one that is nonlinear and deep, and is not located on the head, face, or neck. A deep scar is one associated with underlying tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801. Diagnostic Code 7802 is used for rating scars not of the head, face, or neck that are superficial and nonlinear. Such scars in an area of 144 square inches (929 square cm) or greater warrant a 10 percent evaluation. A superficial scar is one not associated with underlying soft tissue damage. If multiple qualifying scars are present, a separate evaluation is assigned for each affected extremity based on the total area of the qualifying scars that affect that extremity. 38 C.F.R. § 4.118, Diagnostic Code 7802. Diagnostic Code 7804 provides a 10 percent rating 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 disability rating is assigned for five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, add 10 percent to the rating that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7804. Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars require the rating of any disabling effects not considered in a rating provided under Diagnostic Codes 7800 to 7804 under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. Effective August 13, 2018, the regulations pertaining to the evaluation of skin disorders were amended. See 83 Fed. Reg. 32592 (July 13, 2018). The amendments to the scar codes were superficial, and are not more favorable than the scar codes in effect prior to the amendments. Consequently the Board finds that the amended regulation is not applicable. The Board notes that the RO in an October 2017 rating decision merged the Veteran’s rating for a painful scar located on the neck with a painful scar located on the wrist for a combined rating of 10 percent for both scars under Diagnostic Code 7804 for one or two painful scars. The Veteran did not appeal this decision, and therefore, the Board will proceed in evaluated the Veteran’s ratings for painful scar of the neck and wrist, and disfiguring scar of the neck, as noted in the most recent codesheet. 3. Entitlement to a rating in excess of 10 percent for a neck scar. After a review of the evidence of record the Board finds that a rating in excess of 10 percent for neck scar under Diagnostic Code 7800 is not warranted. A June 2015 VA examination report noted that the Veteran had a painful scar located on the neck from a laced furuncle that occurred during service. The examiner noted that there was 1 painful scar with the pain described as tingling. The examiner noted that the scar was not unstable with frequent loss covering the scar, nor was the scar both unstable and painful. The scar was noted to be well healed and 2 centimeters long and 0.8 centimeters in width (less than 2 square centimeters). No functional loss was noted to be caused by the scar. As noted above, the scar on the neck only has one disfiguring characteristic regarding its width, but no others were diagnosed by the examiner. Additionally, the scar was not determined to have 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), or cheeks, (lips). Therefore, the Board finds that the currently assigned 10 percent rating under Diagnostic Code 7800 is highest rating available and no increase is warranted. The Board notes that no other Diagnostic Codes are applicable as Codes 7801-7803 pertain to scars other than those on the head, neck, and face. Additionally, Diagnostic Code 7804 regarding pain has been merged with the Veteran’s painful scar of the wrist, which amounts to two painful scars rated at 10 percent is the higher rating available for painful scars. As for Diagnostic Code 7805, the Veteran’s neck scar does not result in any other disabling manifestation not contemplated by the remaining Diagnostic Codes pertaining to the scar. 4. Entitlement to a rating in excess of 10 percent for a right wrist scar in combination with painful neck scar. The Veteran’s scar on the right wrist is rating under Diagnostic Code 7804 for one or two painful scars. In this case the RO has determined that the neck scar and right wrist scar were painful and together a 10 percent rating was warranted. An April 2014 VA examination report regarding the right wrist scar shows that the Veteran had one painful scar on the wrist. The scar was not unstable with frequent loss of covering the skin of the scar. The scar was not both painful and unstable nor due to burns. The scar was noted to be a linear scar of 2 centimeters in length. The examiner noted that per the Veteran’s history the scar caused functional limitation in grasping that would worsen as the day progressed. The examiner remarked that the right wrist scar had no impact on his ability to work. After a review of the evidence of record the Board finds that higher ratings are not warranted for the Veteran’s scar located on the on the right wrist. Initially, the Board notes that the Veteran’s right wrist scar has been described at linear and therefore the Board will only examine the Diagnostic Codes pertaining to linear scars. The Board notes that under Diagnostic Code 7804, is the highest rating available for that Diagnostic Code. The Board has considered other potentially applicable codes. Diagnostic Code 7800 is not for application as it pertains to scars of the head, face, or neck. Similarly, Diagnostic Code 7801 does not apply in this case, as evidence does not demonstrate that the Veteran’s scar causes limited motion, or are nonlinear. Diagnostic Code 7802 also is inapplicable as the Veteran’s right wrist scare does not cover an area of 144 square inches (929 sq. cm.) or greater. Diagnostic Code 7803 is not applicable as the evidence shows the scar is not unstable and is well-healed. As for Diagnostic Code 7805, the Veteran’s right wrist scar, the Board is remanding this matter below to determine if the Veteran has a righthand disability. Therefore, the Board finds that the preponderance of the evidence is against the claim for ratings in excess of a 10 percent rating thereafter is denied. Additionally, the Board notes that the Veteran has not been assessed with more than two painful scars, therefore higher ratings based more than two scars are not warranted. 5. Entitlement to an effective date prior to February 21, 2013 for the 10 percent rating of the right wrist scar. The Veteran contends that he is entitled to an earlier effective date for the grant of the 10 percent rating for the scar on the right wrist prior to February 21, 2013. The Board notes that the Veteran’s scar of the right wrist was initial rated as noncompensable since 2007. The claim for an increase in the rating for the right wrist scar was received in February 21, 2014 and an effective date for the increased 10 percent rating assigned an effective date of February 21, 2013 which is one year prior to the date of filing for an increased rating. Generally, the effective date of a rating and award of compensation for an increased rating claim is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (o)(1). A claim is a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1 (p). An informal claim is any communication or action indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155 (a). VA must look to all communications from a claimant that may be interpreted as applications or claims, formal and informal, for benefits, and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196 (1992). An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 C.F.R. §3.400 (o)(2). Under those circumstances, the effective date of the award is the earliest date at which it was ascertainable that an increase occurred. 38 U.S.C. § 5110 (b)(2) (2012); 38 C.F.R. § 3.400 (o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). The question of when an increase in disability is factually ascertainable is based on the evidence of record. Quarles v. Derwinski, 3 Vet. App. 129 (1992). As to whether a claim for an increased rating for the scar on the right wrist was filed prior to February 21, 2014, a review of the claims file reflects no such communication that would give rise to an earlier effective date. The last rating decision regarding the Veteran’s claim for the scar of the right wrist was in January 2008; that decision granted service connection for a scar on the right wrist, assigned a noncompensable rating, and assigned an effective date of April 12, 2007. The Veteran did not appeal that decision. Additionally, there is no indication that he filed a new claim or otherwise sought an increase for the scar on the right wrist any time between January 2008 and February 2014. The Board thus finds that the evidence does not supports an earlier effective date of prior to February 21, 2013, which was on year prior to the Veteran filing his claim for an increase for the scar on the right wrist, and the claim is denied. REASONS FOR REMAND 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right-hand disability is remanded. Here, the Board finds that a VA examination is required to determine if the Veteran has a current right hand disability. The Board finds that the Veteran is competent to report that his has trouble grasping items. Therefore, the Board finds that a VA examination is warranted to determine if the Veteran has a current right hand disability and if so whether such condition is related to active service to included secondary to a service connected right wrist scar. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Board notes that the issue of entitlement to a TDIU is intertwined with the service connection issues herein remanded. Thus, the Veteran’s claim for a TDIU is remanded for adjudication of the above claim and a consideration of the Boards granted for service connection for a right ankle disability. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine etiology of any right hand disability. The examiner must review the claims file and must note that review in the report. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. The examiner must consider the lay evidence of the Veteran regarding his symptoms. The examiner should include a detailed rationale for all opinions provided. The examiner is requested to set forth all manifestations of the right hand disability, and provide a medical opinion on the following: (a) With respect to any right hand disability present, is it is as least as likely as not (50 percent probability or greater) that any diagnosed right hand condition is etiologically related to active service or to any service connected disability? (b) Is it at least as likely as not (50 percent probability or greater) that any diagnosed right hand condition is due to or the result of service-connected right wrist scar? (c) Is it at least as likely as not (50 percent probability or greater) that any right hand disability been aggravated (increased in severity beyond the natural progress of the disorder) by service-connected right wrist scar? Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Dworkin, Associate Counsel