Citation Nr: 18159917 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 16-54 918 DATE: December 20, 2018 ORDER Entitlement to an increased evaluation for radiculopathy of the right upper extremity is dismissed. Entitlement to an earlier effective date for Chapter 35 benefits is dismissed. Entitlement to an increased evaluation for a right ankle disability is dismissed. Entitlement to an increased evaluation for a left ankle disability is dismissed. Entitlement to service connection for hypertension is dismissed. Entitlement to an increased evaluation for a left knee disability is dismissed. Entitlement to an increased evaluation for a left shin disability is dismissed. Entitlement to an increased evaluation for a right shin disability is dismissed. Entitlement to a total disability evaluation due to individual unemployability (TDIU) prior to December 29, 2010 is dismissed. Entitlement to an effective date prior to November 8, 2013 for service connection for migraine headaches is dismissed. Entitlement to an effective date prior to December 23, 2015 for service connection for a painful scar due to a lower lip laceration is dismissed. Entitlement to an effective date prior to December 23, 2015 for service connection for a disfiguring scar due to a lower lip laceration is dismissed. Entitlement to an effective date prior to November 20, 2016 for service connection for radiculopathy of the right upper extremity is dismissed. Entitlement to a higher evaluation for a painful scar on the lower lip is denied. Entitlement to a compensable evaluation for a disfiguring scar on the lower lip is denied. REMANDED Entitlement to a compensable evaluation for migraine headaches is remanded. FINDINGS OF FACT 1. The Veteran submitted an August 2018 statement expressing his desire to withdraw his appeals of the following issues: entitlement to an increased evaluation for radiculopathy of the right upper extremity, entitlement to an earlier effective date for Chapter 35 benefits, entitlement to an increased evaluation for a right ankle disability; entitlement to an increased evaluation for a left ankle disability; entitlement to service connection for hypertension; entitlement to an increased evaluation for a left knee disability; entitlement to an increased evaluation for a left shin disability; and, entitlement to an increased evaluation for a right shin disability. 2. The Veteran submitted an October 2018 statements expressing his desire to withdraw his appeal of the following issues: entitlement to an increased evaluation for radiculopathy of the right upper extremity and entitlement to an earlier effective date for Chapter 35 benefits, entitlement to an increased evaluation for a right ankle disability; entitlement to an increased evaluation for a left ankle disability; entitlement to service connection for hypertension; entitlement to an increased evaluation for a left knee disability; entitlement to an increased evaluation for a left shin disability; entitlement to TDIU prior to December 29, 2010; entitlement to an effective date prior to November 8, 2013 for migraine headaches; entitlement to an effective date prior to December 23, 2015 for a painful scar due to a lower lip laceration; entitlement to an effective date prior to December 23, 2015 for a disfiguring scar due to a lower lip laceration is dismissed; and entitlement to an effective date prior to November 20, 2016 for radiculopathy of the right upper extremity. 3. The Veteran’s August 2018 and October 2018 statements withdrawing his claims indicate that he understood the consequences of his actions. 4. The Veteran’s single service-connected scar of the lower lip is painful but not unstable. 5. The Veteran’s single service-connected scar of the lower lip does not have the characteristics of disfigurement as described in 38 C.F.R. § 4.118, Note (1). CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Veteran’s appeal of the issue of entitlement to an increased evaluation for radiculopathy of the right upper extremity have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 2. The criteria for withdrawal of the Veteran’s appeal of the issue of entitlement to an earlier effective date for Chapter 35 benefits have been meet. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 3. The criteria for withdrawal of the Veteran’s appeal of the issue of entitlement to an increased evaluation for a right ankle have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 4. The criteria for withdrawal of the Veteran’s appeal of the issue of entitlement to an increased evaluation for a left ankle disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 5. The criteria for withdrawal of the Veteran’s appeal of the issue of entitlement to service connection for hypertension have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 6. The criteria for withdrawal of the Veteran’s appeal of the issue of entitlement to an increased evaluation for a left knee disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 7. The criteria for withdrawal of the Veteran’s appeal of the issue of entitlement to an increased evaluation for a left shin disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 8. The criteria for withdrawal of the Veteran’s appeal of the issue of entitlement to an increased evaluation for a right shin disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 9. The criteria for withdrawal of the Veteran’s appeal of the issue of entitlement to a TDIU prior to December 29, 2010 have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 10. The criteria for withdrawal of the Veteran’s appeal of the issue of entitlement to an effective date prior to November 8, 2013 for service connection for migraine headaches have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 11. The criteria for withdrawal of the Veteran’s appeal of the issue of entitlement to an effective date prior to December 23, 2015 for service connection for a painful scar due to a lower lip laceration have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 12. The criteria for withdrawal of the Veteran’s appeal of the issue of entitlement to an effective date prior to December 23, 2015 for service connection for a disfiguring scar due to a lower lip laceration have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 13. The criteria for withdrawal of the Veteran’s appeal of the issue of entitlement to an effective date prior to November 20, 2016 for service connection for radiculopathy of the right upper extremity have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018). 14. The criteria for entitlement to a higher evaluation for a painful scar on the lower lip have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code (DC) 7804 (2018). 15. The criteria for entitlement to a compensable evaluation for a disfiguring scar of the lower lip have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7800 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1982 to July 1987. In his October 2016 VA Form 9 Substantive Appeal perfecting his appeal as to the issues of entitlement to an increased evaluation for a depressive disorder associated for pain and entitlement to an increased evaluation for migraine headaches, the Veteran indicated that he would like a Video Conference Board Hearing. In his September 2017 VA Form 9 Substantive Appeal, perfecting his appeals as to the issues of entitlement to an increased evaluation for radiculopathy of the right upper extremity, an increased evaluation for a painful scar, a compensable evaluation for a disfiguring scar, and an earlier effective date for Chapter 35 benefits, the Veteran requested a Video Conference Board Hearing. In August 2018, the Veteran was notified that he had a Video Conference Board Hearing scheduled for September 11, 2018. In August 2018 correspondence from his attorney, the Veteran indicated that he wished to withdraw his request for a hearing. The Board deems the Veteran’s request for a hearing withdrawn. A September 2018 Board decision remanded that claim for an increased evaluation for pes planus and plantar fasciitis for the purpose of furnishing the Veteran of a statement of the case (SOC). See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The Veteran withdrew that claim in an August 2018 statement. As there is no longer an active appeal as to that issue, the issuance of the SOC ordered in the September 2018 Board remand is not necessary. Withdrawn Claims The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed, 38 U.S.C. § 7105, and an appellant may withdraw any issue on appeal at any time prior to the Board’s promulgation of a decision. 38 C.F.R. § 20.204. An appellant or an appellant’s representative may withdraw an issue on appeal. Id. Withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). In August 2018, the Veteran submitted a statement through his attorney stating that he wished to withdraw the following claims: entitlement to an increased evaluations for disabilities of the right ankle, left ankle, depression, radiculopathy of the right upper extremity, left knee, left shin, and right knee; entitlement to service connection for hypertension and a bilateral hand disorder, and entitlement to an earlier effective date for Chapter 35 benefits. The Veteran indicated that he understood the consequences of his action. The Veteran’s submission satisfies the requirements for written withdrawal of an appeal. See 38 C.F.R. § 20.204; DeLisio, 25 Vet. App., at 57. The Veteran reiterated his desire to withdraw the claims listed immediately above in an October 2018 statement attached to November 2018 correspondence from his attorney. He added that he also wished to withdraw the following claims: entitlement to an effective date earlier than December 29, 2010 for a TDIU; entitlement to an effective date earlier than November 8, 2013 for migraine headaches; entitlement to an effective date earlier than December 23, 2015 for a painful lower lip scar; entitlement to an effective date earlier than December 23, 2015 for a disfiguring lower lip scar; and entitlement to an effective date prior to November 20, 2016 for radiculopathy of the upper right extremity. Again, the Veteran indicated that he understood the consequences of his action. The Veteran’s submission satisfies the requirements for written withdrawal of an appeal. See 38 C.F.R. § 20.204; DeLisio, 25 Vet. App., at 57. Hence, with the withdrawal of the appeals being found to be proper, there remain no allegations of errors of fact or law for appellate consideration with respect to the issues identified immediately above. The Board does not have jurisdiction to review the appeal of these issues and they are therefore dismissed. The Board also notes that the Veteran’s August 2018 and October 2018 statements also sought to withdraw his claim for entitlement to an increased evaluation for depression secondary to a pain disorder and service connection for a bilateral hand disorder. A May 2014 Board decision dismissed these claims following the Veteran’s statement during a November 2013 Video Conference Board hearing that he wanted to withdraw them. These claims were no longer pending following the Board’s May 2014 dismissal, and there is no need for the AOJ to take any further action on these withdrawn and dismissed claims. Increased Rating Entitlement to an Increased Evaluations for a Scar of the Lower Lip A. Higher Evaluation for a Painful Scar The Veteran’s service-connected scar of the lower lip is currently evaluated as 10 percent disabling under 38 C.F.R. § 4.118, DC 7804. DC 7804 provides a 10 percent evaluation for one or two scars that are unstable or painful. The next highest evaluation available DC 7804 is a 20 percent evaluation for three or four scars that unstable or painful. 38 C.F.R. § 4.118, DC 7804. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides for an additional 10 percent added to the evaluation that is based on the total number of unstable or painful scars if one or more scars are both unstable and painful. Note (3) provides that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7800, when applicable. The probative evidence of record does not warrant a higher evaluation for a painful scar. A May 2016 VA examination report described a single scar that was easily visible underneath the Veteran’s lower lip and had curvilinear shape. It was 2.5cm x 0.2 cm, deep, hypopigmented, tender to light palpation, disfiguring, and well healed. The examination report documents that the scar was not unstable. Other evidence or record does not document that Veteran’s single service-connected scar is unstable. Because the Veteran has one scar that is painful but not unstable, a higher evaluation of 20 percent is not warranted. B. Compensable Evaluation for a Disfiguring Scar The Veteran’s scar is also evaluated as 0 percent disabling under 38 C.F.R. § 4.118, DC 7800. For burn scars of the head, face, or neck; scars of the head, face, or neck due to other causes; or other disfigurement of the head, face or neck, DC 7800 provides a compensable evaluation of 10 percent for a scar with one characteristic of disfigurement. Note (1) provides 8 characteristics of disfigurement for purposes of § 4.118: (1) Scar 5 or more inches (13 or more cm.) in length; (2) Scar at least one-quarter inch (0.6 cm.) wide at widest part; (3) Surface contour of scar elevated or depressed on palpation (4) Scar adherent to underlying tissue; (5) Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and (8) Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Note (5) the characteristic(s) of disfigurement may be caused by one scar or by multiple scars and that the characteristic(s) required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. The Veteran’s single service-connected scar does not meet the characteristics of disfigurement provided in DC 7800, Note (1). The examiner responsible for the May 2016 VA examination described the Veteran’s scar as disfiguring; however, the examiner’s description is not the same as a determination that the Veteran’s scar satisfies the schedular criteria for a compensable evaluation under DC 7800. See 38 C.F.R. §§ 4.2, 4.10. The examiner noted that the Veteran’s scar was hypopigmented, or lighter in color the surrounding skin. Hypopigmentation is a disfiguring characteristic where it covers an area exceeding 39 sq. cm; the Veteran’s scar only covers an area of approximately 1.25 sq. cm based on its length of 2.5cm and width of 0.2cm. Thus, the hypopigmentation is not disfiguring for purposes of DC 7800. The scar is neither long enough nor wide enough to be disfiguring, and it not elevated or depressed on palpation, soft tissues is not missing beneath the scar, and the scar does not adhere to the underlying tissue. The skin texture is not abnormal or indurated and inflexible. Accordingly, a compensable evaluation for a disfiguring scar on the Veteran’s face must be denied. REASONS FOR REMAND The Veteran’s service-connected migraine headaches are currently evaluated as non-compensable under 38 C.F.R. § 4.124a, DC 8100. The Veteran contends that he is entitled to a compensable evaluation. His VA treatment records thoroughly document his complaints of headaches, about twice a month that begin with impaired vision, cause severe pain leading to vomiting, and make the Veteran sensitive to light. See, e.g., December 2015 VA Treatment Records. February 1, 2016 VA Treatment Records document the Veteran’s report that was receiving care from a private physician for his migraine headaches. The treatment records do not identify the provider, and it is not clear if VA has requested treatment records from the provider and associated them with the Veteran’s claim file. The AOJ should ask the Veteran to identify the doctor and provide a VA Form 21-4142 authorizing the release of the Veteran’s treatment records for the provider from whom the Veteran receives care for his service-connected migraine headaches. Moreover, the Board notes that the Veteran last received a VA examination for migraine headaches in September 2015. While the mere passage of time does not render a VA examination invalid, see Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007), the fact that the Veteran sought care from an outside provider may suggest that the Veteran’s headaches have worsened since September 2015. After the AOJ has requested medical records from the private provider referenced in February 2016 VA treatment records, the Veteran should be afforded a new VA examination to assess the current severity of his migraine headaches. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the non-VA physician (or facility) from whom the Veteran receives care for his service-connected migraine headaches. Make two requests for the authorized records from this physician (or facility), unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected migraine headaches. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. Specifically, the examiner should elicit whether the Veteran’s service-connected migraine headaches manifest as prostrating attacks, and if so, the frequency of such attacks. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Douglas M. Humphrey, Associate Counsel