Citation Nr: 18142729 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-11 529A DATE: October 17, 2018 ORDER An initial 30 percent rating, but no higher, for osteoradionecrosis of the left mandible is granted. From August 19, 2013 to March 14, 2015, an 80 percent rating for facial scars is granted. Since March 14, 2015, a rating in excess of 80 percent for facial scars is denied. FINDINGS OF FACT 1. The Veteran has a low-level infection of his left lower jaw within the 5 years preceding his claim as well as an indication of sequestrum during the claims period. 2. The Veteran’s facial scars result in six or more characteristics of disfigurement, but not additional symptomatology. CONCLUSIONS OF LAW 1. The criteria for a rating of 30 percent, but no higher, for osteoradionecrosis of the left mandible have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.25, 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5000. 2. From August 19, 2013 to March 14, 2015, the criteria for a rating of 80 percent for facial scars have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 38 C.F.R. § 4.118, DC 7800. 3. Since March 14, 2015, the criteria for a rating in excess of 80 percent for facial scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 38 C.F.R. § 4.118, DC 7800. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to August 1969. The case is on appeal from a March 2014 rating decision granting a 10 percent rating for osteoradionecrosis of the left mandible and an October 2015 rating decision granting an 80 percent rating for facial scars, effective March 14, 2015. In an October 2015 notice of disagreement (NOD), the Veteran did not appeal a specific issue decided in the October 2015 rating decision. Rather, he wrote that the specific issue with which he was disagreeing was: “Start date at 100 percent disability should be May 2013.” He marked the box for “Effective Date of Award” and then wrote “100%.” The Board notes that the October 2015 rating decision did not award a 100 percent disability rating, per se. Rather, it awarded an 80 percent rating for scars with disfigurement, together with separate grants of service connection for depressive disorder with anxiety disorder, not otherwise specified, and scars, status post treatment for squamous cell and basal cell carcinomas. This action resulted in a 100 percent rating based on a combination of all his service-connected disabilities under 38 C.F.R. § 4.25. Thus, the October 2015 NOD did not initiate an appeal of any specific issue in the rating decision. The RO construed his NOD as a disagreement with the rating assigned for scars with disfigurement. Obviously, this did not exactly contemplate his area of disagreement as identified in the NOD. However, as the NOD did not clearly indicate the adjudicative determination with which he disagreed, the RO’s action here was a reasonable and liberal interpretation of his NOD. No further action is required as to the NOD as his NOD lacked any further specificity. See 38 C.F.R. § 20.201(a)(4). In the Veteran’s notice of disagreement with the March 2014 rating decision, received by VA on June 9, 2014, the Veteran noted that in August 2013 he underwent an operation to reconstruct the left lower section of his jaw using the fibula and associated tissue and skin from his right leg. NOD at 2. He states that he was hospitalized and/or bedridden for an extended period of time as well as unable to eat, swallow, speak without difficulty, or walk. At the time the notice of disagreement was received, VA did not yet require claims for compensation to be on an official form. Construing the Veteran’s statements liberally, the Board will interpret this correspondence as a claim for a temporary total rating based on hospitalization, 38 C.F.R. § 4.29, and convalescence, 38 C.F.R. § 4.30. In March 2016 correspondence received with his appeal to the Board, the Veteran noted that there was no discussion of his leg scar. At the time, the Veteran was not yet service connected for his leg scar. He subsequently was in a March 2017 rating decision, in which a noncompensable rating was assigned effective March 29, 2016. The Veteran has not noted disagreement with the effective date or rating assigned therein, and the leg scar is not on appeal. Thus, only the rating for the Veteran’s facial scars is before the Board. Increased Ratings Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 1. Entitlement to a rating in excess of 10 percent for osteoradionecrosis of the left mandible The Veteran claims that his osteoradionecrosis of the left mandible should be rated as 100 percent disabling. Specifically, in his May 30, 2014 notice of disagreement, he reports active infections beginning in April 2013, with treatment, including a period of hospitalization and surgery, in the months thereafter. He has also had recurrent infections on his check in 2014. A. Applicable Law The Veteran’s osteoradionecrosis of the left mandible has been rated by analogy to osteomyelitis. Thus, the disability is rated under DC 5000, which provides for a 100 percent rating with involvement of the pelvis, vertebrae, or extending into major joints, or with multiple localization or with long history of intractability and debility, anemia, amyloid liver changes, or other continuous constitutional symptoms; a 60 percent rating is appropriate with frequent episodes, with constitutional symptoms; a 30 percent rating is indicative of definite involucrum or sequestrum, with or without discharging sinus; a 20 percent rating is warranted with discharging sinus or other evidence of active infection within the past 5 years; and a 10 percent evaluation is assigned for inactive osteomyelitis following repeated episodes, without evidence of active infection in past 5 years. 38 C.F.R. § 4.71a, DC 5000. A rating of 10 percent, as an exception to the amputation rule, is to be assigned in any case of active osteomyelitis where the amputation rating for the affected part is zero percent. This 10 percent rating and the other partial ratings of 30 percent or less are to be combined with ratings for ankylosis, limited motion, nonunion or malunion, shortening, etc., subject, of course, to the amputation rule. The 60 percent rating, as it is based on constitutional symptoms, is not subject to the amputation rule. A rating for osteomyelitis will not be applied following cure by removal or radical resection of the affected bone. 38 C.F.R. § 4.71a, DC, Note (1). B. Discussion The Veteran was afforded a VA contract examination of his jaw disability in December 2016. Debridement and excisions over the left jaw were noted as well as the Veteran’s reconstruction surgery. The osteomyelitis condition was said, at that time, to be inactive and without recurrent infections. Sequestrum was noted. As to functional effects, eating, chewing and talking were said to be difficult. The Board notes that the infections cited to by the Veteran entitle him to a 30 percent rating as there was an indication of sequestrum. However, a higher rating is not warranted. As directed under DC 5000, the Veteran has been rated separately for additional disabling effects related to the infection, such as scars and limited neck movement. Those disabilities are not before the Board, but they are recognized as resulting in ratings in excess of 60 percent. Finally, the Veteran’s infections involve the left mandible, which is not a major joint. See 38 C.F.R. § 4.45(f). And, there is no indication of intractability and debility, anemia, or amyloid liver changes. Therefore, the Board finds that a rating in excess of 30 percent for osteoradionecrosis of the left mandible is not warranted. 2. Entitlement to a rating in excess of 80 percent for facial scars The Veteran is claiming that he is entitled to a rating in excess of 80 percent for his scars. B. Discussion The rating schedule effective since October 23, 2008 is set forth as follows: 7800 Burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck: With visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement 80 With visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement 50 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 30 With one characteristic of disfigurement 10 Note (1):The 8 characteristics of disfigurement, for purposes of evaluation under §4.118, are: Scar 5 or more inches (13 or more cm.) in length. Scar at least one-quarter inch (0.6 cm.) wide at widest part. Surface contour of scar elevated or depressed on palpation. Scar adherent to underlying tissue. Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.). Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.). Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.). Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Note (2): Rate tissue loss of the auricle under DC 6207 (loss of auricle) and anatomical loss of the eye under DC 6061 (anatomical loss of both eyes) or DC 6063 (anatomical loss of one eye), as appropriate. Note (3): Take into consideration unretouched color photographs when evaluating under these criteria. Note (4): Separately evaluate disabling effects other than disfigurement that are associated with individual scar(s) of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, under the appropriate diagnostic code(s) and apply §4.25 to combine the evaluation(s) with the evaluation assigned under this diagnostic code. Note (5): The characteristic(s) of disfigurement may be caused by one scar or by multiple scars; the characteristic(s) required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. 7801 Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear: Area or areas of 144 square inches (929 sq. cm.) or greater 40 Area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) 30 Area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) 20 Area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) 10 Note (1): A deep scar is one associated with underlying soft tissue damage. Note (2): If multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under §4.25. Qualifying scars are scars that are nonlinear, deep, and are not located on the head, face, or neck. 7802 Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear: Area or areas of 144 square inches (929 sq. cm.) or greater 10 Note (1): A superficial scar is one not associated with underlying soft tissue damage Note (2): If multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under §4.25. Qualifying scars are scars that are nonlinear, superficial, and are not located on the head, face, or neck. 7804 Scar(s), unstable or painful: Five or more scars that are unstable or painful 30 Three or four scars that are unstable or painful 20 One or two scars that are unstable or painful 10 Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): 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 Note (3): Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable 7805 Scars, other (including linear scars) and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804: Evaluate any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code. Effective since August 13, 2018, the applicable criteria were amended. The new rating schedule is as follows: 7800 Burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck: With visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement 80 With visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement 50 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 30 With one characteristic of disfigurement 10 Note (1):The 8 characteristics of disfigurement, for purposes of evaluation under §4.118, are: Scar 5 or more inches (13 or more cm.) in length. Scar at least one-quarter inch (0.6 cm.) wide at widest part. Surface contour of scar elevated or depressed on palpation. Scar adherent to underlying tissue. Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.). Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.). Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.). Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Note (2): Rate tissue loss of the auricle under DC 6207 (loss of auricle) and anatomical loss of the eye under DC 6061 (anatomical loss of both eyes) or DC 6063 (anatomical loss of one eye), as appropriate. Note (3): Take into consideration unretouched color photographs when evaluating under these criteria. Note (4): Separately evaluate disabling effects other than disfigurement that are associated with individual scar(s) of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, under the appropriate diagnostic code(s) and apply §4.25 to combine the evaluation(s) with the evaluation assigned under this diagnostic code. Note (5): The characteristic(s) of disfigurement may be caused by one scar or by multiple scars; the characteristic(s) required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. 7801 Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage: Area or areas of 144 square inches (929 sq. cm.) or greater 40 Area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) 30 Area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) 20 Area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) 10 Note (1): For the purposes of DCs 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk Note (2): A separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body. Combine the separate evaluations under §4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code 7802 Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage: Area or areas of 144 square inches (929 sq. cm.) or greater 10 Note (1): For the purposes of DCs 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk Note (2): A separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body. Combine the separate evaluations under §4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code 7804 Scar(s), unstable or painful: Five or more scars that are unstable or painful 30 Three or four scars that are unstable or painful 20 One or two scars that are unstable or painful 10 Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): 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 Note (3): Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable 7805 Scars, other; and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, or 7804: Evaluate any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code General Rating Formula For The Skin For DCs 7806, 7809, 7813-7816, 7820-7822, and 7824: At least one of the following 60 Characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or Constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period 60 At least one of the following 30 Characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or Systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period At least one of the following 10 Characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or At least 5 percent, but less than 20 percent, of exposed areas affected; or Intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period No more than topical therapy required over the past 12-month period and at least one of the following 0 Characteristic lesions involving less than 5 percent of the entire body affected; or Characteristic lesions involving less than 5 percent of exposed areas affected Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7804, or 7805), depending upon the predominant disability. This rating instruction does not apply to DC 7824 Claims pending prior to the August 13, 2018 effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. See 83 Fed. Reg. 32592, 32593 (July 13, 2018). B. Discussion The Veteran was afforded a VA examination of his scars in July 2015. Two scars were noted: the first on the left flap, 10 centimeters by 18 centimeters and the second on the neck, 8.5 centimeters by 4.5 centimeters. Both scars were said to be painful. Pain was noted to be relieved by Ibuprofen. The facial scar had surface contour depressed on palpation, underlying soft tissue missing, and hyperpigmentation. The neck scar had surface contour elevated with palpation and hypopigmentation. Total scar area was noted as 218 centimeters squared. Functional limitations included difficulty turning head to the right and left and gross disfigurement to the left side of the face was noted. The Veteran noted feeling embarrassed when little kids stare at him and having difficulty driving because he could not turn his head. Another VA examination was conducted in October 2015. The examiner noted that the Veteran used immunosuppressive medications, Aldera and topical Desitin to treat to treat basal cell carcinoma for six weeks or more during the prior year. The facial scar on the left jaw was said to be healing and 9 centimeters by 5 centimeters. The scar was yellow, tender, though not elevated, depressed, irregular, atrophic, shiny, scaled, unstable ulcerated, or hyper- or hypopigmented. Scar area was said to be 45 centimeters squared. No functional impacts were noted. As noted above, the Veteran’s scars are rated as 80 percent disabling, the highest available schedular rating. The rating code considers the disfiguring characteristics evidenced by the Veteran’s facial scars: scar 13 or more centimeters in length, at least .6 centimeters at widest part, elevated or depressed contour on palpation, hypo- or hyperpigmentation exceeding 39 centimeters squared, underlying soft tissue missing of at least 39 centimeters squared, and skin inflexible in an area exceeding 39 centimeters square. The Veteran also has a separate 30 rating under DC 5322 for limited motion of the muscles of the cervical spine, the maximum rating available. Further, the Board notes that the Veteran uses topical and immunosuppressive medication to treat these scars. The use of such medication is contemplated by DC 7806. A separate rating is not warranted under DC 7806, as that rating code directs VA to rate in the alternative disfigurement of the head, face, or neck under DC 7800. The 80 percent rating under DC 7800 was assigned because it is higher than the ratings available under DC 7806. The effective date of this rating was March 14, 2015. However, the Board notes that the Veteran’s notice of disagreement from which the issue of his scar ratings arise was received by VA on June 9, 2014. Further, hospital records dated August 19, 2013 note the Veteran’s left jaw surgery that resulted in the scarring which warranted an 80 percent rating. Thus, because the worsening occurred within a year prior to the June 9, 2014 date of claim, the Board finds that the 80 percent rating should awarded from August 24, 2013. 38 C.F.R. § 3.400(o)(2). The Board notes that the Veteran has stated that a dentist rather than an otolaryngologist (or ENT) should have conducted the examinations at issue in this appeal. However, VA examiners are presumed qualified. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (physician’s assistant was competent to perform examination). There is no appearance of irregularity in the process resulting in the selection of that medical professional that prevents the presumption of competence from attaching. The Board finds that this presumption has not been rebutted in this case. Wise v. Shinseki, 26 Vet. App. 517, 527 (2014) In summary, a 30 percent rating is granted for osteoradionecrosis; and the current 80 percent for facial scars is now effective August 19, 2013. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. George