Citation Nr: 18153719 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-21 201 DATE: November 28, 2018 ORDER Entitlement to a compensable evaluation for a scar located on the left hip is denied. REMANDED Entitlement a compensable evaluation for limitation of flexion of the left femur stress fracture beginning March 9, 2015 is remanded. Entitlement to a compensable evaluation for limitation of abduction, adduction and rotation of the left femur stress fracture beginning March 9, 2015 is remanded. Entitlement to a compensable rating prior to March 9, 2015 and a rating in excess of 10 percent beginning March 9, 2015 for limitation of extension of left femur stress fracture is remanded. Entitlement to a rating in excess of 20 percent for left femur stress fracture for the period prior to March 9, 2015 is remanded. FINDING OF FACT The left hip scar is not painful or unstable; it measures 6 centimeters by 1 centimeter; there is no evidence of underlying tissue damage or limitation of function caused by the scar. CONCLUSION OF LAW The criteria for a compensable evaluation for a left hip scar, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.10 (2017); 38 C.F.R. § 4.118, Diagnostic Code 7805 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 2005 to February 2007. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Board acknowledges that the Veteran has a current claim pending for entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) which is being developed by the Agency of Original Jurisdiction (AOJ). As the Veteran claims that she is unable to work due to both her depression and bilateral hip disability, the Board will not take jurisdiction of this issue at this time. But see Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a compensable evaluation for scar located on the left hip Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, as here, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). 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. See 38 C.F.R. § 4.7. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. DC 7804 provides a 10 percent rating for 1 or 2 scars that are unstable or painful. Note (1) states 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, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118. DC 7805 provides that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800 through 7804 under an appropriate diagnostic code. 38 C.F.R. § 4.118. The AOJ granted service connection for a left hip scar in a July 2012 rating decision. A noncompensable evaluation was assigned at that time as the scar was neither painful or unstable. The evidence continues to show that the Veteran’s scar is neither painful or unstable. See November 2011 examination report; see March 2015 examination report; see June 2016 examination report; see May 2018 examination report; see September 2018 examination report. The scar measures 6 centimeters in length and 1 centimeter in width and is located on the left hip. See March 2015 examination report. Having reviewed the evidence pertaining to this claim, the Board concludes that a compensable evaluation is not warranted for a left hip scar. In this regard, a compensable evaluation requires that there are one or two scars that are unstable or painful. Such is not shown by the record. The evidence also does not show that limitations of her hip are due to the scar. The Board accepts that the Veteran has experienced functional impairment due left hip pain; but the Veteran is already in receipt of separate evaluations for a left hip disability. Therefore, a compensable evaluation for a left hip scar is denied. REASONS FOR REMAND The record shows that the AOJ first assigned a 20 percent evaluation under Diagnostic Code 5255 from February 7, 2007 to March 9, 2015 for the Veteran’s left femur stress fracture, status post internal fixation of the left femur. Later, the AOJ separated the Veteran’s hip disability into separate ratings for limitation of extension, limitation of flexion and limitation of abduction, adduction and rotation. A noncompensable evaluation was assigned from May 3, 2011 for limitation of extension of the left femur stress fracture. A 10 percent evaluation was assigned for limitation of extension beginning March 9, 2015. A noncompensable evaluation was assigned for limitation of flexion beginning March 9, 2015 and a noncompensable evaluation was assigned for limitation of abduction, adduction and rotation beginning March 9, 2015. The Board finds that a new examination is needed. As the evaluations assigned appear to overlap during the period of this appeal, the Board finds that all issues related to the left hip disability must also be remanded. The Veteran was afforded a Hip and Thigh Conditions Disability Benefits Questionnaire in September 2018. The examiner provided range of motion measurements and indicated that pain was exhibited on examination of flexion, extension, abduction, adduction, external rotation and internal rotation. Despite this, the examiner did not indicate when pain began and at what degree the pain limited hip motion. Therefore, a new examination is needed that provides this information. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from August 2018 to the Present. All records/responses received must be associated with the electronic claims file. 2. Schedule the Veteran for an examination of the current severity of her left hip disability, including flexion, extension, abduction, adduction and rotation. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to her left hip disability alone and discuss the effect of the Veteran’s left hip on any occupational functioning and activities of daily living. 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). 3. Readjudicate the Veteran’s claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, she and her attorney should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel