Citation Nr: 18147907 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 18-46 983 DATE: November 6, 2018 ORDER An initial compensable rating for scars of the bilateral shoulders and base of the neck (status post surgeries and partial thyroidectomy) is denied. A total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s scars of the bilateral shoulders and base of the neck cover areas of less than 39 square centimeters (6 square inches) and were not found to be painful or unstable. 2. For the entire period on appeal, the Veteran has been precluded from securing or following a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a compensable rating scars of the bilateral shoulders and base of the neck have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.118, Diagnostic Codes 7800-7805 (2018). 2. The criteria for a TDIU rating have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1957 to December 1986. 1. Entitlement to an initial compensable rating for scars of the bilateral shoulders and base of the neck. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s service-connected scars of the bilateral shoulders and base of the neck are currently rated 0 percent disabling under Diagnostic Code 7805. Scars are evaluated under Diagnostic Codes 7800-7805. As a preliminary matter, the Board notes that Diagnostic Code 7800 (pertaining to scars of the head, face, or neck) is not applicable in this case. The Board also notes that under Diagnostic Code 7805, the rater is directed to consider the applicability of Diagnostic Codes 7800-7804. Therefore, the Board will assess this claim under Diagnostic Codes 7801-7804. Diagnostic Code 7801 rates deep scars other than those of the head, face, or neck; a 10 percent rating is warranted if the area or areas affected is/are at least 6 square inches (39 square centimeters (sq. cm.)). Similarly, Diagnostic Code 7802 rates superficial scars other than those of the head, face, or neck; a 10 percent rating is warranted if the area or areas affected is/are at least 144 square inches (929 sq. cm.) or greater. Under Diagnostic Code 7804 for scars that are unstable or painful, a 10 percent rating is warranted 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. 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, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. The Veteran has three service-connected scars: a left shoulder scar status post acromioplasty, a right shoulder scar status post acromioplasty, and a scar on the base of the neck status post surgeries and partial thyroidectomy. During a March 2017 VA examination, the examiner found that the Veteran’s scars included a linear acromioplasty surgical scar on his left anterior shoulder measuring 7 cm., a linear acromioplasty surgical scar on his right anterior shoulder measuring 9 cm., and a scar on the anterior base of the neck from thyroid surgery measuring 8 cm. The Board notes that the examiner analyzed several more scars that are not service-connected. Since the service-connected scars cover a total area of less than 39 sq. cm., Diagnostic Codes 7801 and 7802 are not applicable. The Veteran’s service-connected scars may receive a compensable rating if they are unstable or painful. Throughout the period on appeal, the Veteran’s service-connected scars have never been described as painful or unstable. Notably, the Veteran never stated that his service-connected scars were painful or unstable. Based on a review of the foregoing evidence, the Board finds that the Veteran’s service-connected scars cover a total area of less than 39 sq. cm., are not painful, and are not unstable. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an initial compensable rating for scars of the bilateral shoulders and base of the neck; therefore, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to TDIU. Period on Appeal The Veteran submits that he should be granted TDIU effective November 20, 2012. The issue of TDIU was first denied in an October 2013 rating decision. The Veteran filed a notice of disagreement in March 2014 (signed in January 2014), but he cancelled his appeal in May 2014 (signed April 2014). In the statement cancelling his appeal, the Veteran requested that his physical examination be rescheduled. Therefore, in June 2014, the Regional Office sent the Veteran a correspondence stating that they considered that statement to be an informal claim and requested that he fill out the appropriate application to file a claim within one year. The Veteran did not file anything within a year. Therefore, the Board finds that the Veteran abandoned his claim to TDIU. 38 U.S.C. § 3.158(a). The Veteran did not file another claim until his intent to file, received on February 1, 2017. That claim, which was ultimately filed a couple weeks later, included a claim for TDIU. Generally, the effective date for an increased rating, including TDIU, is the date of receipt of the claim or date entitlement arose, whichever is later. If, however, the claim is filed within one year of the date that the evidence shows that an increase in disability has occurred, the effective date is the earliest date as of which an increase is factually ascertainable. 38 U.S.C. § 5110 (b)(3) (2012); 38 C.F.R. § 3.400(o) (2015). See also Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010). Therefore, the period on appeal for TDIU is from February 1, 2017. If TDIU is granted for the entire period on appeal, the Board will determine whether the symptoms of the Veteran’s service-connected disabilities increased in severity to preclude securing or following a substantially gainful occupation within the one-year look back period prior to the date of the claim. TDIU VA regulations provide that total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to permanently render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 4.15. A total disability rating may be assigned where the schedular rating is less than total when the disabled claimant is unable to secure or maintain substantially gainful employment by reason of one or more service-connected disabilities. 38 C.F.R. § 4.16(a). In order for claimants who have one service-connected disability to qualify for TDIU under section 4.16(a), that disability must be rated 60 percent or greater. Id. In order for claimants who have two or more service-connected disabilities to qualify for a total disability rating, one of the disabilities must be rated 40 percent or greater, and the combined disability rating of all the claimant’s disabilities must be 70 percent or greater. Id. For the purpose of determining whether the Veteran’s disability ratings constitute a single disability rated 60 percent or multiple disabilities one of which is rated 40 percent or greater, certain disabilities can be combined if, among other possibilities, the disabilities are of one or both upper extremities, or of one or both lower extremities, including the bilateral factor. Id. It is VA’s 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. 38 C.F.R. § 4.16(b). Rating boards should refer to the Director, Compensation Service for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). A veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Id. By itself, the fact that a veteran is unemployed or has difficulty obtaining employment is not enough to establish entitlement to TDIU. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). “The question is whether the veteran is capable of performing the physical and mental acts required by employment.” Id. As an initial matter, the Board finds that the Veteran has met the schedular requirement for TDIU throughout the period on appeal. Prior to March 16, 2017, the Veteran was assigned a 30 percent rating for diabetic nephropathy with hypertension associated with type II diabetes mellitus; a 30 percent rating for left hand tremors associated with type II diabetes mellitus; a 20 percent rating for type II diabetes mellitus; a 20 percent rating for status post right shoulder acromioplasty; a 20 percent rating for status post left shoulder acromioplasty; a 10 percent rating for insomnia disorder (claimed as depression) associated with type II diabetes mellitus; a noncompensable rating for status post left hand third finger fracture; a noncompensable rating for a respiratory condition; a noncompensable rating for hemorrhoids; a noncompensable rating for status post partial thyroidectomy; a noncompensable rating for numbness on the left side of the face; a noncompensable rating for erectile dysfunction associated with type II diabetes mellitus; and a noncompensable rating for scars of the bilateral shoulders and base of the neck (status post surgeries and partial thyroidectomy). The Veteran’s status post left shoulder acromioplasty and status post right shoulder acromioplasty are considered disabilities of one or both upper extremities, which combine for a 40 percent rating. See 38 C.F.R. § 4.16(a), 4.25. The Veteran had a combined disability rating of 80 percent. 38 C.F.R. § 4.25. Therefore, the Veteran met the schedular requirement of one disability with a rating of 40 percent or higher and a total disability rating of 70 percent or higher. 38 C.F.R. § 4.16(a). From March 16, 2017, the Veteran’s diabetic nephropathy with hypertension associated with type II diabetes mellitus has been raised to 60 percent and all of his other service-connected disabilities continued at the ratings levels listed above. His combined disability was raised to 90 percent. 38 C.F.R. § 4.25. Therefore, the Veteran continued to meet the schedular requirement. 38 C.F.R. § 4.16(a). The record indicates that the Veteran has not been employed for several years. The symptomatology of the Veteran’s service-connected disabilities were detailed in March 2017 VA examinations, a November 2018 left hand tremor VA examination, and the Veteran’s statements. Physically, the Veteran is limited in his ability to conduct work-related tasks by his right shoulder disability, left shoulder disability, left hand tremors, and left hand finger disability. The Veteran’s right shoulder disability prevents him from putting up his right arm and from putting anything above his head. His left shoulder disability prevents him from raising his left arm above his chest. His left hand tremors interfere with his ability to type or hold things with his left hand without dropping them. His left hand finger disability results in his finger catching on things and limits his ability to type easily. Based on his physical limitations, the Veteran could be expected to work a job where he could take breaks from typing and is not required to stock shelves. However, one of the symptoms of his service-connected insomnia is memory loss for names of close relatives, own occupation, or own name. That high level of memory loss combined with the physical inability to work a more physical job, like stocking shelves, combine to make securing or following a substantially gainful occupation unlikely. Therefore, the Board finds that the Veteran is precluded from securing or following a substantially gainful occupation due to his service-connected disabilities for the entire period on appeal. (Continued on the next page)   The record does not include a factually ascertainable date within one year prior to the February 2017 claim for when the Veteran’s service-connected disabilities increased in severity to preclude securing or following a substantially gainful occupation. Accordingly, the Board finds that the Veteran is granted TDIU from February 1, 2017, the date he filed an intent to file the instant claim. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Shah, Associate Counsel