Citation Nr: 18146457 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 18-36 817 DATE: October 31, 2018 ORDER Entitlement to a compensable rating for scar, residuals of surgery for peripheral neuropathy of right hand, associated with peripheral neuropathy right hand, is denied. Entitlement to a compensable rating for scars, residuals of surgeries for peripheral neuropathy left hand, associated with peripheral neuropathy left hand, is denied. REMANDED Entitlement to a rating in excess of 10 percent for degenerative joint disease left wrist is remanded. Entitlement to a rating in excess of 10 percent for status post right wrist fracture with residual pain and weakness is remanded. Entitlement to a rating in excess of 20 percent for peripheral neuropathy, left hand prior to May 27, 2015, and a rating in excess of 40 percent thereafter, is remanded. Entitlement to a rating in excess of 20 percent for peripheral neuropathy, right hand prior to May 27, 2015, and a rating in excess of 30 percent thereafter, is remanded. Entitlement to special monthly compensation (SMC) for loss of use of the bilateral hands is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s scar, residuals of surgery for peripheral neuropathy of right hand, associated with peripheral neuropathy right hand, is linear and stable with no objective evidence of pain or tenderness. 2. The Veteran’s scars, residuals of surgeries for peripheral neuropathy left hand, associated with peripheral neuropathy left hand, are linear and stable with no objective evidence of pain or tenderness. The Veteran is being separately compensated for his painful, non-linear scar on the dorsum of the left hand from below the long finger to mid-wrist, as a result of subsequent surgeries to the left wrist. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for the Veteran’s scar, residuals of surgery for peripheral neuropathy of right hand, associated with peripheral neuropathy right hand, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.118, Diagnostic Code 7805. 2. The criteria for a compensable rating for the Veteran’s scars, residuals of surgeries for peripheral neuropathy left hand, associated with peripheral neuropathy left hand, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1958 to January 1960. This matter is on appeal from April 2014 (increased rating claims) and March 2015 (TDIU) rating decisions. In a May 2018 rating decision, the RO increased the ratings for the service-connected left and right hand peripheral neuropathy. As the highest possible evaluation for these disabilities have not been assigned, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). In July 2015, the Veteran filed a claim for entitlement to SMC based on loss of use of the bilateral hands. In July 2015, the Veteran’s representative asserted that the claim for SMC based on loss of use of the bilateral hands should be considered as part and parcel of the increased rating claims on appeal; the Board agrees. See Akles v. Derwinski, 1 Vet. App. 118 (1991) (finding that the issue of entitlement to SMC is part and parcel of a claim for increased rating). As such, the Board has included the issue of entitlement to SMC for loss of use of the bilateral hands as an issue on appeal. Increased Rating Entitlement to a compensable rating for scar, residuals of surgery for peripheral neuropathy of right hand, and scars, residuals of surgery for peripheral neuropathy of left hand Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 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; 38 C.F.R. §§ 3.321, 4.1. 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. However, the United States Court of Appeals for Veterans Claims has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the appeal, the assignment of staged ratings would be necessary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Here, the Veteran’s scar, residuals of surgery for peripheral neuropathy of right hand, and scars, residuals of surgery for peripheral neuropathy of left hand are provided noncompensable ratings under Diagnostic Code (DC) 7805. The Veteran is seeking entitlement to a compensable rating for his scars. The Board notes that VA regulations regarding the skin have been recently updated, effective August 13, 2018. As the Veteran’s claim was pending as of this date, both the pre- and post-August 13, 2018, regulations are for application, whichever are more favorable to the Veteran. However, as application of the post-August 13, 2018, regulations do not result in a more favorable rating for the Veteran, they will not be considered. The Board notes that the diagnostic criteria for disorders of the skin are found at 38 C.F.R. § 4.118, DCs 7800 to 7805. Although the Veteran’s scars are rated under DC 7805, the Board will consider the criteria set forth in the other potentially applicable DCs. As the evidence of record indicates that the Veteran’s scars are not on his head, face or neck, and that he does not have any disfigurement of the head, face, or neck, consideration under DC 7800 is not warranted. 38 C.F.R. § 4.118, DC 7800. Under DC 7801, pertaining to scars not of the head, face, or neck that are deep and nonlinear, a 10 percent evaluation is warranted when the area(s) is at least 6 sq. inches (39 sq. cm), but less than 12 sq. inches (77 sq. cm). A 20 percent evaluation is warranted when the area(s) is at least 12 sq. inches (77 sq. cm) but less than 72 sq. inches (465 sq. cm). A 30 percent evaluation is warranted when the area(s) is at least 72 sq. inches (465 sq. cm) but less than 144 sq. inches (929 sq. cm). A maximum 40 percent evaluation is assigned when the area(s) exceeds 144 sq. inches (929 sq. cm). Note 1 provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801. Under DC 7802, a maximum schedular evaluation of 10 percent is warranted for superficial and nonlinear scars not of the head, face, or neck with an area(s) of 144 sq. inches (929 sq. cm) or greater. Note 1 provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802. Under DC 7804, which applies to scars that are unstable or painful, a 10 percent evaluation is warranted for one or two scars that are unstable or painful. A 20 percent evaluation is warranted for three or four scars that are unstable or painful. A maximum 30 percent evaluation is warranted for five or more scars that are unstable or painful. 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 should be added to the evaluation that is based on the total number of unstable or painful scars. Note 3 provides that scars evaluated under DC 7800, 7801, 7802, and 7805 may also receive an evaluation under this diagnostic code, when applicable. 38 C.F.R. § 4.118, DC 7804. DC 7805 applies to other scars (including linear scars) and other effects of scars evaluated under DC 7800, 7801, 7802 and 7804. Any disabling effects not considered in a rating provided under DC 7800 through 7804 should be evaluated under an appropriate diagnostic code. The Veteran was provided a VA examination for his scars in December 2013. He was noted to have an 8 cm. linear scar from the right thumb to the wrist from his right hand peripheral neuropathy surgery. The scar was well-healed, nontender, normal, with no discoloration, no atrophy or hypertrophy, and no adhesion to the underlying tissue. The Veteran was noted to have three linear scars on his left hand from his left hand peripheral neuropathy surgery. The first scar was located on the left dorsum from below the long finger to mid-wrist and measured 8 cm. The second scar was located on the plantar area at 4 o’clock and measured 4 cm. The third scar was located on the plantar area at 1 o’clock and measured 3 cm. These scars were well-healed, nontender, with no atrophy or hypertrophy, no discoloration, and no adhesion to the underlying tissue. There was no functional impairment. Further, during a May 2015 VA examination for his service-connected wrist disabilities, the Veteran was again noted to have an 8 cm. linear scar from the right thumb to the wrist from his right hand peripheral neuropathy surgery. He was also noted to have three linear scars on his left hand from his left hand peripheral neuropathy surgery. The first scar was located on the dorsum from below the long finger to mid-wrist and measured 8 cm. The second scar was located on the left plantar area at 4 o’clock and measured 4 cm. The third scar was located on the left plantar area at 1 o’clock and measured 3 cm. The scars well-healed and nontender. On VA examination in October 2017, it was noted that the Veteran had recently undergone multiple surgeries to his left wrist over the last year, and that the surgeon used the same left wrist scar when performing the surgeries. As a result of the recent surgeries, the Veteran’s scar on the dorsum of the left hand from below the long finger to mid-wrist was noted to be superficial, non-linear, slightly larger, and elevated on palpation, measuring 9 cm. x .5 cm. It was also noted to be painful; examination revealed a well-healed scar with tenderness in the middle from recent surgeries. The Veteran was again noted to have an 8 cm. linear scar from the right thumb to the wrist, a 4 cm. linear scar on the plantar area of the left hand at 4 o’clock, and a 3 cm. linear scar on the plantar area of the hand at 1 o’clock. There was no functional impairment from any of the scars. In light of the foregoing, the Board finds that the Veteran’s scars are rated as noncompensable under DC 7805. The Veteran’s scars are linear; thus, evaluation under DCs 7801 and 7802 is not warranted. Further, there is no objective evidence of pain or tenderness, and there is no limitation of function due to these scars. All the scars were noted to be well-healed. Further, there is no evidence of instability; thus, a rating under DC 7804 is not warranted. The Board acknowledges that the October 2017 VA examination revealed a painful and non-linear scar on the dorsum of the left hand from below the long finger to mid-wrist, as a result of additional left wrist surgeries. However, in a June 2018 rating decision, the RO granted entitlement to service connection for a painful scar on the left hand status-post surgery, and assigned a 10 percent rating under DC 7804 effective May 2, 2018. The RO also granted entitlement to service connection for a superficial non-linear scar of the left hand status-post surgery, and assigned a noncompensable rating under DC 7802 effective May 29, 2018. As such, the Veteran has been separately compensated for his painful non-linear scar, and those matters are not for consideration here. REASONS FOR REMAND With respect to the Veteran’s claims for entitlement to increased evaluations for degenerative joint disease left wrist, status post right wrist fracture with residual pain and weakness, peripheral neuropathy left hand, and peripheral neuropathy right hand, the Veteran has alleged worsening and increased symptomatology, and the evidence supports this assertion. See October 2018 correspondence and April 2018 private treatment record. In the October 2018 correspondence, the Veteran described worsening symptomatology in the bilateral wrists and hands. He also submitted a private treatment record from Dr. A.W. which revealed that in April 2018, he underwent a revision of his left total wrist arthroplasty with cultures and cemented implant. As such, new VA examinations are necessary so that the current state of the Veteran’s disabilities can adequately be evaluated. Moreover, as noted above, the Veteran has claimed entitlement to SMC based on loss of use of the bilateral hands. Loss of use of a hand will be held to exist when, as the result of a service-connected disability, no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow with use of a suitable prosthetic appliance. See 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a)(2), 4.63. Following examination of the service-connected bilateral wrist and hand disabilities, an appropriate clinician should provide an opinion as to whether the Veteran has loss of use of the bilateral hands as a result of his service-connected wrist and peripheral neuropathy disabilities under this standard. With respect to the claim for entitlement to TDIU, the Board concludes that further development and adjudication of the Veteran’s claims for increased ratings for the bilateral hand and wrist disabilities and his claim for SMC based on loss of use of the bilateral hands may provide evidence in support of his claim for TDIU. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991) (where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined). The matters are REMANDED for the following action: 1. Schedule the Veteran for examination by an appropriate clinician to determine the current severity of his service-connected degenerative joint disease left wrist and status post right wrist fracture with residual pain and weakness. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service connected disabilities alone and discuss the effect of the Veteran’s disabilities on any occupational functioning and activities of daily living. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected peripheral neuropathy of the left and right hands. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to the peripheral neuropathy disabilities alone and discuss the effect of the Veteran’s disabilities on any occupational functioning and activities of daily living. 3. Obtain an opinion from an appropriate clinician regarding whether, as a result of the service-connected bilateral wrist and hand disabilities, no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow with use of a suitable prosthetic appliance. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of entitlement to TDIU and entitlement to SMC based on loss of use of the bilateral hands. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs