Citation Nr: 18152383 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 15-13 822 DATE: November 21, 2018 ORDER Entitlement to a compensable rating of 10 percent and no higher for painful scars associated with coronary artery disease (CAD) surgery is granted. REMANDED Entitlement to an initial rating for CAD in excess of 10 percent prior to September 22, 2016, is remanded. Entitlement to an increased rating for CAD in excess of 60 percent since September 22, 2016, is remanded. Entitlement to service connection for a respiratory condition, claimed as asthma, is remanded. Entitlement to a skin condition, claimed as dermatitis, is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a prostate condition is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU). FINDINGS OF FACT 1. The Veteran has one scar located on the chest, measured 13 cm by 1 cm; one scar on the abdomen, measured 5 cm by .5 cm; and a vein harvest scar of the calf, measured 2.5 cm and .5 cm, all of which are superficial and nonlinear. 2. The Veteran has two scars on the calf and chest which are painful, but are not unstable and no result in functional impairment. CONCLUSIONS OF LAW 1. The criteria for a rating of 10 percent, and no higher, for painful scars associated with CAD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.14.7, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to August 1971, with combat service in the Republic of Vietnam. This appeal comes before the Board of Veterans’ Appeals (Board) from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In June 2018, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. At the hearing, the Veteran raised the issue of entitlement to TDIU as part of his increased rating claims on appeal. Thus, the Board has jurisdiction over this issue. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board also observes that additional records have been added to the claims folder since the last adjudication by the Agency of Original Jurisdiction (AOJ) which are not pertinent to the scar disability claim decided below. Increased Rating - Generally Disability evaluations are determined by the application of VA’s 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 the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Fenderson v. West, 12 Vet. App. 119 (1999). 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. The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Increased Rating - Scars The Veteran’s service-connected scars associated with CAD are currently rated as noncompensable under Diagnostic Code 7805, which applies to other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. Pursuant to Diagnostic Code 7805, VA is to evaluate any disabling effect(s) not considered in a rating provided under such diagnostic codes under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. Diagnostic Code 7800 applies to scars that are located on the head, face, or neck. 38 C.F.R. § 4.118, Diagnostic Code 7800. Diagnostic Code 7801 applies to burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear. 38 C.F.R. § 4.118, Diagnostic Code 7801. A deep scar is one that is associated with underlying soft tissue damage. Id. at Note 1. Diagnostic Code 7802 pertains to burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear. Id., Diagnostic Code 7802. A superficial scar is one that is not associated with underlying soft tissue damage. Id. at Note 1. Under Diagnostic Code 7802, a 10 percent evaluation is warranted for a burn or other scar, not located on the head, face, or neck, that measures an area, or areas, of 144 square inches (929 square centimeters) or greater. Id., Diagnostic Code 7802. 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 posterior portion of the trunk, VA is to 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. Id. at Note 2 (adding that the separate evaluations are to be combined under § 4.25). Pursuant to Diagnostic Code 7804, which applies to unstable or painful scars, 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; and a 30 percent rating is warranted for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note 1. If one or more scars are both unstable and painful, VA is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. at Note 2. Additionally, scars that are evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804 when applicable. Id. at Note 3. The schedular criteria for evaluating scars are set out at 38 C.F.R. § 4.118, Diagnostic Code 7800-7805. Effective August 13,2018, changes were made to the rating criteria for skin disabilities (38 C.F.R. § 4.118). See 83 Fed. Reg. 32,592 (July 13, 2018). The old regulation will be considered for periods both before and after the effective date of the regulatory change. However, the revised criteria will be applied if favorable to the claim from the effective date of the regulatory change. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). To summarize, the revisions to Diagnostic Codes 7801, 7802, and 7805, pertaining to scars: (1) replace the deep/nonlinear/superficial terminology in Diagnostic Code 7801 and 7802 with “underlying soft tissue damage”; (2) streamline the body parts/areas into six zones of the body, defined as each extremity, the anterior trunk and the posterior trunk (Note 1 to DCs 7801 and 7802); and (3) indicate how to assign separate evaluations for each affected zone of the body under § 4.25 (Note 2 to DCs 7801 and 7802). Once the evidence has been assembled, it is the Board’s responsibility to determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996). The Board assesses both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a compensable rating for scars associated with CAD surgery The Veteran contends a higher rating is warranted for his scars of the chest, abdomen and calf related to his coronary artery bypass graft surgery with vein harvest. The Veteran's scar has been rated throughout the appeal period under Diagnostic Code 7805 (scars, other (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804). Diagnostic Code 7805 states to evaluate any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code. The Veteran has scar of the chest, abdomen and calf, therefore, Diagnostic Code 7800 for scars of the head, face, or neck, is not applicable. Under 38 C.F.R. § 4.118, Diagnostic Code 7801, a 10 percent rating is warranted for a scar not of the head, face, or neck that are deep and nonlinear and has an area or area of at least 6 square inches (30 sq. cm) but less than 12 square inches (77 sq. cm.). Under 38 C.F.R. § 4.118, Diagnostic Code 7802, a 10 percent rating is warranted for a scar not of the head, face or neck, that is superficial and nonlinear and have an area or areas of 144 square inches (929 sq. cm.) or greater. Under 38 C.F.R. § 4.118, Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. Higher ratings then outlined above are not relevant to the discussion below. In his June 2018 Board hearing, the Veteran stated With this one on my chest it aches a lot of times, you know. It just comes on and it just aches and I constantly holding it trying to rub it and massage it. And it just aches sometimes. And the one on my leg where they took the arteries out and put ‘em in my heart, it just like a real bad toothache and it’s just about 24 hours a day. And they give me some pain medicine for it. I have to take that twice a day. The Veteran had a VA examination in September 2016. The Veteran’s scars (numbered 1-3) were as follows: scar on the chest, measured 13 cm by 1 cm; one scar on the abdomen, measured 5 cm by .5 cm; and a vein harvest scar of the calf, measured 2.5 cm and .5 cm, all of which are superficial and nonlinear. None of the scars were painful or unstable. Other VA examinations undertaken around the same time for other disabilities also noted these scars, with the same measurements and findings. The prior examination dated from February 2012 showed well-healed scars for cardiac surgery, with no current symptoms and no current treatment used. The examiner noted that the Veteran reported that the scars on his chest and left leg occasionally “ache.” The examiner reported that the Veteran’s scars (numbered 1-3) were as follows: a linear scar on the chest, measured 12.5 cm; and a linear vein harvest scar of the calf, measured 2 cm. both of which were superficial. The examiner did not provide measurements for an abdominal scar. There was pain on examination, but there weren’t any signs of ulceration or breakdown, elevation or depression of scar tissue, or induration or inflexibility. There was also no indication of limitation of motion or function of the affected areas. Given the above examinations, the Board finds that a compensable rating under Diagnostic Code 7801 or 7802 is not warranted, as the scars do not meet the area specifications for a 10 percent rating. However, the Veteran is competent to describe painful scarring characteristics for which he described an aching sensation to the VA examiner in February 2012. He reiterated this report at his hearing with further description of his symptoms that his calf muscle ached like a bad toothache constantly, and his chest scar had similar but not as constant symptoms. Based on the foregoing, the Board finds that the Veteran’s descriptions are analogous to two painful scar which warrants a a higher disability rating of 10 percent, and no higher, is warranted for the two painful scars addressed here under Diagnostic Code 7804. The evidence, when taken in the light most favorable to the Veteran, has indicated that two of the10 percent rating under Diagnostic Code 7804. He has not described painful features of the abdominal scar. Thus, a rating higher than 10 percent is unwarranted based upon painfulness of scar features. See 38 C.F.R. § 4.118, DCs 7804. The lay and medical evidence also does not show the scars cause any other disabling effects or limitations of function that may be rated under any other diagnostic codes. There is no other evidence of record that indicated that the Veteran’s scars resulted in any disabling effects other than his painful sensation. Overall, the evidence indicated that the Veteran’s scars did not result in any disabling effects and accordingly a compensable disability rating is not warranted under Diagnostic Code 7805. The area is not productive of any limitation of motion or any other impairment uniquely addressable under rating codes other than those indicated for rating of scars. REASONS FOR REMAND 1. Entitlement to an initial rating for CAD in excess of 10 percent prior to September 22, 2016, is remanded. 2. Entitlement to an increased rating for CAD in excess of 60 percent since September 22, 2016, is remanded. 3. Entitlement to service connection for a respiratory condition, claimed as asthma, is remanded. 4. Entitlement to a skin condition, claimed as dermatitis, is remanded. 5. Entitlement to service connection for hypertension is remanded. 6. Entitlement to service connection for a prostate condition is remanded. In a June 2011 statement, the Veteran notes additional military service in the National Guard. There is no evidence that these records, both military service and military treatment records have been obtained. Additionally, there is no DD 214 or National Guard computation of service contained in the claims file. These records need to be obtained to allow proper adjudication of the Veteran’s claims for entitlement to service connection for his conditions. In a February 2012 VA hypertension examination, the examiner notes that the Veteran has been receiving treatment for hypertension since the 1970s. However, there are no medical treatment records from this period associated with the claims file. Therefore, the Board finds that a remand is necessary to identify and obtain, if possible, outstanding treatment records from this time-period. Additionally, a recent determination from the National Academy of Sciences upgraded hypertension to the “sufficient” category from “limited or suggestive,” indicating that “there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137. Thus, an opinion is necessary. Additionally, in an August 2018 treatment note, the treating VA physician notes that the Veteran is receiving treatment from a non-VA cardiologist. These records have not been obtained and associated with the claims file. The Board finds that the Veteran’s treatment records are incomplete. The record includes VA records since approximately 2005, however not prior to that period. As such, the Board finds that a remand is necessary to obtain the Veteran’s complete VA and private treatment records. The Board must defer the issue of entitlement to TDIU at this time. The matters are REMANDED for the following action: 1. Contact the Veteran and his representative to obtain information regarding treatment he received immediately after leaving service and thereafter, to include Drs. Polk and Baycock of Flowers Hospital as well as Drs. Monch and Cersi and all records associated with his need for a Life Vest. 2. Verify the Veteran’s service in the National Guard from November 1973 to March 1975. Obtain the Veteran’s military records and associate them with the claims file. 3. Thereafter, schedule the Veteran for appropriate examination to determine the current nature and severity of CAD, and whether hypertension is related to service and/or proximately due to service-connected disability. The examiner should provide all current findings pertaining to the Veteran’s CAD, to include an explanation as to whether the Veteran’s need for a Life Vest is attributable to service-connected CAD. With respect to hypertension, the examiner should provide opinion as whether it is at least as likely as not that hypertension first manifested in service, or is due to service including whether hypertension has been caused by herbicide exposure. In providing this opinion, the examiner should consider the recent report from the National Academy of Sciences which upgraded hypertension to the “sufficient” category from “limited or suggestive,” indicating that “there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137 Additionally, provide opinion whether it is at least as likely as not that hypertension is caused by service-connected CAD, or aggravated beyond the normal progress of the disorder by service-connected CAD. (Continued on the next page)   A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 4. Upon completion of the above requested development and any additional development deemed appropriate, the AOJ should readjudicate the remanded issues. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael J. O'Connor