Citation Nr: 18156410 Decision Date: 12/10/18 Archive Date: 12/07/18 DOCKET NO. 16-57 079 DATE: December 10, 2018 ORDER Entitlement to a compensable rating for a restrictive lung disease, characterized status post pneumothorax with thoracotomy and pleurodesis, is denied. Entitlement to a disability rating in excess of 20 percent for penile deformity with loss of urinary control, status post IED blast with reconstruction, is denied. A disability rating of 30 percent, but no more, for right chest wall scars is granted. Entitlement to a compensable rating for a scrotal scar is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s restrictive lung disability is characterized by some exertional dyspnea; a Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent predicted, a ratio of FEV-1 to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, a Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 66- to 80-percent predicted, and a gunshot wound of the pleural cavity with bullet or missile retained in the lung, pain or discomfort on exertion, or with scattered rales or some limitation of excursion of the diaphragm or of lower chest expansion, have been shown. 2. The Veteran’s service-connected penile deformity with loss of urinary control is assigned a 20 percent rating, which is the maximum schedular rating available; renal dysfunction, voiding dysfunction requiring the wearing of absorbent material, urinary frequency manifested by daytime voiding between two and three hours or awakening to void two times per night, obstructive voiding, urinary tract infections, removal of both testes, chronic epididymo-orchitis, prostate gland injuries, and removal of half or more of the penis have not been shown. 3. The Veteran has five painful scars on the anterolateral chest wall; scars that are deep and nonlinear, covering an area of 144 square inches (929 sq. cm) or greater and that are unstable have not been shown. 4. The Veteran’s scrotal scar was not shown to be painful, unstable, deep and nonlinear, covering an area of at least 6 sq. in. (39 sq. cm) but less than 12 sq. in., or superficial and nonlinear covering an area of 144 sq. in (929 sq. cm) or greater. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for a restrictive lung disease have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.31, 4.97, Diagnostic Code (DC) 6844. 2. Given that the Veteran has been assigned a 20 percent rating for penile deformity with loss of urinary control, which is the maximum rating authorized by DC 7522, there is no legal basis for the assignment of a schedular evaluation in excess of 20 percent for penile deformity with loss of urinary control. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7522. 3. The criteria for a disability rating of 30 percent, but no more, for right chest wall scars have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.14, 4.118, DC 7805. 4. The criteria for a compensable rating for a scrotal scar have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.14, 4.118, DC 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2002 to July 2011. As a preliminary matter, the Board notes that in his February 2014 notice of disagreement, the Veteran disagreed with the denial of his claims seeking a compensable rating for abdominal scars, a rating in excess of 10 percent for degenerative joint disease of the left knee, a rating in excess of 10 percent for left knee instability, and a compensable rating for a right ring mallet finger disability. However, the Veteran did not file a substantive appeal to the denial of these claims. Accordingly, the Board has no jurisdiction over these claims and these issues are not properly before the Board. Increased Ratings The Veteran is seeking compensable ratings for his service-connected restrictive lung disease, right chest wall scars, and scrotal scar, and an increased rating for his service-connected penile deformity with loss of urinary control. Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. 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 Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a compensable rating for a restrictive lung disease, characterized status post pneumothorax with thoracotomy and pleurodesis The Veteran asserts that he is entitled to a compensable rating for a restrictive lung disease because he “had part of his lung taken out.” Here, the Veteran’s restrictive lung disease has been assigned a noncompensable rating under DC 6844. Under the General Rating Formula for Restrictive Lung Disease (DCs 6840 through 6845), a 10 percent evaluation is assigned if the evidence shows FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) of 66- to 80-percent predicted. 38 C.F.R. § 4.97, DC 6844. Further, Note (2) to the General Rating Formula for Restrictive Lung Disease, gunshot wounds of the pleural cavity with bullet or missile retained in the lung, pain or discomfort on exertion, or with scattered rales or some limitation of excursion of diaphragm or of lower chest expansion shall be rated at least 20 percent disabling. After review of the evidence of record, the Board concludes that a compensable rating is not warranted. Specifically, in the May 2013 VA examination report, the examiner found that the Veteran had a FEV-1 of 116 percent predicted, a FEV-1/FVC of 85 percent, and a DLCO (SB) of 104 percent predicted. Additionally, although the Veteran reported exertional dyspnea at the January 2014 VA examination, it does not indicate that any FEV-1, FEV-1/FVC, or DLCO (SB) testing was performed. Moreover, the May 2013 examiner did not report that the Veteran sustained any gunshot or fragment wound of the pleural cavity. Finally, the Veteran has not submitted any evidence contradicting the findings of the May 2013 VA examiner. Thus, the evidence does not support a compensable rating under DC 6844. Additionally, the Board notes that the Veteran refused a February 2017 VA examination for respiratory conditions, including his restrictive lung disease. When a claimant does not report for an examination in conjunction with a claim for an increased rating of a service-connected disability, the claim shall be denied unless good cause is established as to why the claimant failed to appear. 38 C.F.R. § 3.655(a). Here, the Veteran did not provide any explanation or reason for his refusal to attend the scheduled February 2017 VA examination, or request a new examination. Accordingly, under 38 C.F.R. § 3.655, an increased rating would also not be warranted on this basis. 38 C.F.R. § 3.655. 2. Entitlement to a disability rating in excess of 20 percent for penile deformity with loss of urinary control The Veteran asserts that he is entitled to a rating in excess of 20 percent for penile deformity with loss of urinary control. DC 7522 provides for a sole and maximum 20 percent rating for a penile deformity with loss of erectile power. 38 C.F.R. 4.115b, DC 7522. Here, the Board finds that the Veteran has been assigned a 20 percent rating, which is the maximum schedular rating available for penile deformity with loss of erectile power. 38 C.F.R. §4.115b, DC 7522. Thus, a disability rating in excess of 20 percent under DC 7522 is not warranted. The Board has considered whether the Veteran should be awarded a higher rating under 38 C.F.R. § 4.115b, but finds that a higher rating is not warranted because no evidence, including the January 2014 VA examination report, shows removal of half or more of the Veteran’s penis (30 percent under DC 7520), removal of both testes (30 percent under DC 7524), chronic epididymo-orchitis (DC 7525, which refers to 38 C.F.R. § 4.115a and would entitle a claimant to a 30 percent rating), or prostate gland injuries (DC 7527, which refers to 38 C.F.R. § 4.115(a) and could entitle him to a rating in excess of 20 percent). Specifically, the examiner reported that the Veteran’s penis, testes, and epididymis were normal, and that his prostate was not examined because it was not relevant to his condition. The Board has also considered the Veteran’s entitlement to a separate rating under 38 C.F.R. § 4.115a, but finds that a separate rating is not warranted. Ratings of the genitourinary system are provided by 38 C.F.R. § 4.115a. Specifically, 38 C.F.R. § 4.115a provides for the assignment of the following ratings: • 0 percent for renal dysfunction manifested by albumin and casts with history of acute nephritis; or, hypertension noncompensable under DC 7101; • 20 percent for voiding dysfunction requiring the wearing of absorbent material that must be changed less than 2 times per day; • 10 percent for urinary frequency manifested by daytime voiding interval between two and three hours, or; awakening to void two time per night; • 0 percent for obstructed voiding manifested by obstructive symptomatology with or without stricture disease requiring dilatation one to two times per year; or • 10 percent for urinary tract infections manifested by long-term drug therapy, one to two hospitalizations per year and/or requiring intermittent intensive management. 38 C.F.R. § 4.115a. Here, no separate rating under 38 C.F.R. § 4.115a is warranted. Initially, there is no evidence that the Veteran experiences renal dysfunction. Next, the January 2017 VA examination report shows that although the Veteran has a voiding dysfunction that causes urine leakage, it does not require the wearing of absorbent material, it does not require the use of an appliance, it does not cause increased urinary frequency, and it does not cause signs or symptoms of obstructive voiding. Further the VA examination report shows that he does not have a history of recurrent symptomatic urinary tract or kidney infections. Given that there is no legal basis upon which to award a separate schedular evaluation or higher schedular rating for erectile dysfunction, the Veteran’s claim for such a benefit is without legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). Moreover, the Note to 38 C.F.R. 4.115b provides that entitlement to special monthly compensation (SMC) under 38 C.F.R. § 3.350 should be considered. However, the Board observes that the Veteran is already in receipt of SMC based on loss of use of a creative organ. Finally, the Board notes that the Veteran refused a February 2017 VA examination for his reproductive system. As set forth above, when a claimant does not report for an examination in conjunction with a claim for an increased rating of a service-connected disability, the claim shall be denied unless good cause is established as to why the claimant failed to appear. 38 C.F.R. § 3.655(a). Here, the Veteran did not provide any explanation or reason for his refusal to attend the scheduled February 2017 VA examination, or request a new examination. Accordingly, under 38 C.F.R. § 3.655, an increased rating would also not be warranted on this basis. 38 C.F.R. § 3.655. 3. Entitlement to a compensable rating for right chest wall scars The Veteran asserts that he is entitled to a compensable rating for his right chest wall scars because his scars cause him to experience pain. The Veteran’s service-connected right chest wall scars have been assigned a noncompensable rating under 38 C.F.R. § 4.118, DC 7805. In order to warrant a compensable rating for such scars, the evidence must show that the scar is or scars are: • Deep and nonlinear, covering an area or areas of at least 6 square inches (39 cm sq.) but less than 12 square inches (77 sq. cm) (10 percent under DC 7801); • Superficial and nonlinear, covering an area or areas of 144 sq. inches (929 sq. cm.) or greater; • One or two in number that are unstable or painful (10 percent under DC 7804); or, • One or two in number that are unstable and painful (20 percent under DC 7804, Note (2)). 38 C.F.R. § 4.118. DC 7804 further provides that if a veteran has three or four scars that are painful or unstable he will be entitled to a 20 percent rating, and if he has five or more scars that are painful or unstable, he will be entitled to a 30 percent rating. Additionally, pursuant to Note (2) to DC 7804, if a veteran has scars that are both painful and unstable, 10 percent is added to the evaluation that is based on the total number of painful and unstable scars (i.e., three or four painful and unstable scars receive a 30 percent rating and five or more painful and unstable scars receive a 40 percent rating). After review of the evidence of record, the Board concludes that a rating of 30 percent, but no more, is warranted. Specifically, at a January 2014 VA examination, the Veteran presented with five linear scars on the right anterolateral chest wall that measured 1.5 cm, 2 cm, 1 cm, 2 cm, and 1 cm. The examiner noted that the scars were not painful or unstable. The treatment records do not evidence a larger size scar or any complications associated therewith. Although the January 2014 VA examiner did not document any pain associated with the Veteran’s chest wall scars, the Veteran has provided competent and credible statements, including a statement in his substantive appeal, that his right chest wall scars are painful. Therefore, a rating of 30 percent, but no more, for painful scars is for application. The Board has also considered whether a higher rating is warranted under DC 7805 for “other” scars, which are to be rated based on limitation of function of the part affected. Here, the January 2014 VA examiner noted that the Veteran’s chest wall scars are associated with cutaneous nerve damage and referred to the peripheral nerve examination. Consistent with the report from the January 2014 VA examination assessing his chest wall scars, the report from the January 2014 VA examination for peripheral nerve conditions indicated that his chest wall scars were not painful or unstable, that they did not cover an area greater than 39 square cm, and that there were no pertinent physical findings, complications, conditions, signs, or symptoms. Further, the examiner reported that although the Veteran had damage to the cutaneous nerves over the right lateral chest wall, she did not report that such damage caused any disabling effects and denied that it had any functional impact. Additionally, there is no evidence of any other disabling effects that would warrant a higher and/or additional rating. Therefore, a rating under DC 7805, or any other relevant Diagnostic Code is not for application. 4. Entitlement to a compensable rating for a scrotal scar The Veteran asserts that he is entitled to a compensable rating for his scrotal scar. The Veteran’s service-connected scrotal scar has been assigned a noncompensable rating under 38 C.F.R. § 4.118, DC 7805. As set forth above, in order to warrant a compensable rating for his scrotal scar, the evidence must show that the scar is: • Deep and nonlinear, covering an area or areas of at least 6 square inches (39 cm sq.) but less than 12 square inches (77 sq. cm) (10 percent under DC 7801); • Superficial and nonlinear, covering an area or areas of 144 sq. inches (929 sq. cm.) or greater; • One or two in number that are unstable or painful (10 percent under DC 7804); or, • One or two in number that are unstable and painful (20 percent under DC 7804, Note (2)). 38 C.F.R. § 4.118. After review of the evidence of record, the Board concludes that a compensable rating is not warranted. Specifically, at a January 2014 VA examination, the Veteran presented with a scrotal scar that was not painful or unstable and the total area covered by the scar was less than 6 square inches (39 square cm). The Veteran did not submit any statements, medical evidence, or provide testimony showing that his scrotal scar was painful. Further, the treatment records do not evidence a larger size scar or any complications associated therewith. Thus, based upon the evidence of record, the Board concludes that the Veteran is not entitled to a compensable rating for his scrotal scar because the scar is not deep and nonlinear, covering an area or areas of at least 6 square inches (39 cm sq.) but less than 12 square inches (77 sq. cm) (10 percent under DC 7801), superficial and nonlinear, covering an area or areas of 144 sq. inches (929 sq. cm.) or greater, or unstable or painful. The Board has also considered whether a higher rating is warranted under DC 7805 for “other” scars, which are to be rated based on limitation of function of the part affected. Here, the January 2014 VA examiner noted that the Veteran had no other pertinent physical findings, complications, signs, or symptoms. Moreover, there is no evidence that the scar causes any other disabling effects that would warrant a compensable rating. Further, to the extent that the Veteran has penile deformity symptoms, as discussed above, the Veteran is service-connected for that deformity and is already receiving compensation for those symptoms. Therefore, a rating under DC 7805, or any other relevant Diagnostic Code is not for application. Finally, the Board notes that the Veteran refused February 2017 VA examinations for his scars and his reproductive system. As set forth above, when a claimant does not report for an examination in conjunction with a claim for an increased rating of a service-connected disability, the claim shall be denied unless good cause is established as to why the claimant failed to appear. 38 C.F.R. § 3.655(a). Here, the Veteran did not provide any explanation or reason for his refusal to attend the scheduled February 2017 VA examination, or request a new examination. Accordingly, under 38 C.F.R. § 3.655, an increased rating would also not be warranted on this basis. 38 C.F.R. § 3.655. The Board has also considered the Veteran’s statements that his service-connected restrictive lung disease, penile deformity with loss of urinary control, right chest wall scars, and scrotal scar are worse than the ratings that he receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Although the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of his service-connected disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s restrictive lung disease, penile deformity with loss of urinary control, right chest wall scars, and scrotal scar have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the veteran’s level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that the Veteran’s disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his symptoms related to the issues on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes, as they include symptoms related to restrictive lung diseases, penile deformity with loss of urinary control, right chest wall scars, and scrotal scars. See DC 6844, 7522, 7805. Thus, the Veteran’s symptoms are not which are so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran’s disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. When a veteran submits a claim for an increased rating for a service-connected disability, it is a claim for the highest rating available, to include entitlement to TDIU, if raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Here, the evidence shows that the Veteran meets the criteria for schedular TDIU because he is service connected for 20 disabilities, with an overall combined rating of 90 percent since June 14, 2013, with his service-connected PTSD assigned a 50 percent rating from June 14, 2013. See 38 C.F.R. § 4.16(a). Moreover, the evidence, including numerous statements made by the Veteran to VA examiners such as the January 2014 PTSD examiner, shows that he asserts that he is unable to maintain gainful employment due to his service-connected disabilities. Nevertheless, a remand is required because the record lacks sufficient evidence, including evidence concerning his education and vocational history. The matter is REMANDED for the following action: 1. Obtain all of the Veteran’s medical records from the VA medical center in Dallas, TX since September 2016, or any VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an opportunity to submit the medical records of such treatment. 2. The RO should undertake any other development deemed necessary in order to adjudicate the Veteran’s entitlement to TDIU, including obtaining any VA examinations or opinions. If TDIU is denied, advise the Veteran of this and of his procedural and appellate rights.   If the Veteran files a timely notice of disagreement and, after receiving a statement of the case, also files a timely substantive appeal (VA Form 9 or equivalent), then return this derivative claim to the Board for further appellate consideration. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Crosnicker, Associate Counsel