Citation Nr: 18153821 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 10-39 341 DATE: November 29, 2018 ORDER Prior to October 5, 2015, a compensable rating for a right leg scar is denied. From October 5, 2015, a 10 percent rating for right leg scar is granted. REMANDED Entitlement to service connection for bilateral vision loss (also claimed as eyes and sight) is remanded. Entitlement to service connection for left ankle pain is remanded. Entitlement to service connection for headaches is remanded. FINDINGS OF FACT 1. Prior to October 5, 2015, the Veteran’s right leg scar was manifested by one superficial scar which was stable and not painful and measured less than 12 square inches (77 sq. cm.) in area. 2. From October 5, 2015, the right leg scar was painful, was not unstable, and measured less than 12 square inches (77 sq. cm.) in area. CONCLUSIONS OF LAW 1. Prior to October 5, 2015, the criteria for a compensable rating for a right leg scar were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7801-7805. 2. From October 5, 2015, the criteria for a 10 percent rating, but no higher, for a right leg scar have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7801-7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from August 1971 to August 1975. On August 16, 2018, the Federal Circuit ordered the appeal of Procopio v. Wilkie, No. 17-1821 (U.S. Fed. Cir.). The order stated that the questions before the Federal Circuit include the following: “Does the phrase ‘served in the Republic of Vietnam’ in 38 U.S.C. § 1116 unambiguously include service in the offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within landmass of the Republic of Vietnam?” As of the date of this decision, Procopio is still pending. As this appeal contains at least one issue that may be affected by the resolution of Procopio, the Board will “stay” or postpone action on this matter. Entitlement to an increased rating for right leg scar Disability evaluations (ratings) are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In both claims for an increased rating on an original claim and an increased rating for an established disability, only the specific criteria of the Diagnostic Code are to be considered. Massey v. Brown, 7 Vet. App. 204, 208 (1994). In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Diagnostic Codes 7800-7805 were revised, effective for claims filed on and after October 23, 2008. See 73 Fed. Reg. 54708 -54712 (Sept. 23, 2008). The Veteran's service connection claim was received in February 2009; therefore, the revised rating criteria for scars are applicable to this claim. Scars are rated under 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. Diagnostic Code 7801 Diagnostic Code 7801 provides that burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrant a maximum 10 percent rating. Note (1) states that a deep scar is one associated with underlying soft tissue damage. Diagnostic Code 7802 provides that burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater warrant a maximum rating of 10 percent. Note (1) states that a superficial scar is one not associated with underlying soft tissue damage. Note (2) under that code provides that if multiple qualifying scars are present, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation. Three or four scars that are unstable or painful warrant a 20 percent evaluation. Five or more scars that are unstable or painful warrant a 30 percent evaluation. Note (2) for that code 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. Note (3) under that provides that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under diagnostic code 7804, when applicable. Diagnostic Code 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 7800-04 under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. The Veteran had a VA examination in August 2009. The examiner noted a history of a right leg laceration in service. On physical examination, there was a scar on the anterior right leg over the mid-tibia. The etiology of the scar was from slipping and falling on a piece of iron. The maximum width of the scar was 2 centimeters, and the maximum length of the scar was 5 centimeters. The scar was superficial. It was not painful, had no signs of skin breakdown, inflammation, edema, or keloid formation. There were no other disabling effects. The Veteran had a VA examination in October 2015. The Veteran reported aching behind the scar on his right leg. He reported using a Lidocaine patch on the scar every day for 12 hours, as prescribed, which did not really provide any relief. There was no loss of skin covering over the scar. The scar was not both painful and unstable. The scar was not due to burns. Physical examination of the scar showed a superficial, non-linear scar, measuring 4 centimeters by 1.5 centimeters. The evidence prior to October 5, 2015 reflects that the right leg scar was superficial, not unstable or painful, less than 144 square inches in areas, and did not have disabling effects. Accordingly, the criteria for an initial compensable rating are not met prior to October 5, 2015. The Board finds that a 10 percent rating is warranted from October 5, 2015, as the evidence from that date reflects that the scar was painful as reported by the Veteran. A rating in excess of 10 percent is not warranted at any point during the appeal, as the scar is stable and is less than 12 square inches in area. There are no other disabling effects of the scar which would warrant a higher rating. The Board has considered the benefit of the doubt doctrine in making this determination. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for bilateral vision loss (also claimed as eyes and sight) is remanded. The Veteran is currently service-connected for residuals of a right eye laceration. His post-service treatment records reflect various eye diagnoses other than his right eye laceration. A VA treatment record reflects that he reported right eye pain in July 2013. A July 2013 VA treatment record reflects a diagnosis of a history of iritis and conjunctivitis. A March 2016 treatment record noted a history of a cataracts lens in the right eye. The claim is being remanded for a VA examination and medical opinion to ascertain whether a current eye disability is caused or aggravated by the Veteran’s service-connected right eye laceration residuals. 2. Entitlement to service connection for left ankle pain is remanded. Service treatment records reflect that a diagnosis of left foot sprain was noted in August 1972. An August 1973 entry in the service treatment records shows that the Veteran complained of a swollen left foot. He was diagnosed with a fracture of the left great toe. Post-service treatment records reflect complaints of left ankle pain. The Veteran was afforded a VA examination in October 2015, which did not include any findings regarding the left ankle. A VA examination is necessary, given the complaints of left foot and toe pain noted in service and his post-service history of left ankle pain. The claim is being remanded for a VA examination and medical opinion. 3. Entitlement to service connection for headaches is remanded. The Veteran had a VA examination in July 2017. He reported headaches since a fall from a ladder in September 1971. He reported that his condition had gotten worse. The examiner diagnosed migraines, with a date of diagnosis in 1971. The examiner opined that it is less likely as not that the Veteran’s headaches are related to service, as there are no medical records showing a diagnosis or treatment for headaches during active duty. VA treatment records dated in January 2009 reflect diagnoses of alcohol dependence and headaches associated with alcohol withdrawal. The claim is being remanded for a VA examination and medical opinion to ascertain whether a current headache disability is caused or aggravated by his service-connected PTSD. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right eye disability. The examiner must opine whether a current right eye disability, to include iritis, conjunctivitis, or cataract is (1) proximately due to the service-connected right eye laceration, or (2) aggravated beyond its natural progression by the service-connected right eye laceration. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of a left ankle disability. The examiner must opine whether a left ankle disability is at least as likely as not related to an in-service injury, event, or disease, including the left foot pain and left toe fracture in service. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his headache disability. 4. The examiner must opine whether a current headache disability is (1) proximately due to the service-connected PTSD, including any associated alcohol dependence, or (2) aggravated beyond its natural progression by the service-connected PTSD, including any associated alcohol dependence. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Catherine Cykowski