Citation Nr: 18160011 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 17-05 427 DATE: December 20, 2018 ORDER An effective date earlier than June 12, 2012, for a 20 percent rating for left lower extremity chronic exertional compartment syndrome is denied. An effective date earlier than June 12, 2012, for a 20 percent rating for right lower extremity chronic exertional compartment syndrome is denied. An effective date earlier than June 12, 2012, for a 20 percent rating for scars of the bilateral lower extremities, right third finger, inguinal hernia repair surgery, and left shoulder is denied. Entitlement to a rating in excess of 20 percent rating for scars of the bilateral lower extremities, right third finger, inguinal hernia repair surgery, and left shoulder is denied. REMANDED Entitlement to a rating in excess of 20 percent rating for left lower extremity chronic exertional compartment syndrome is remanded. Entitlement to a rating in excess of 20 percent rating for right lower extremity chronic exertional compartment syndrome is remanded. FINDINGS OF FACT 1. On June 12, 2012, and no earlier, the Veteran’s claim for an increased rating was received. It is not factually ascertainable that the Veteran’s bilateral lower extremity chronic exertional compartment syndrome or scars of the bilateral lower extremities, right third finger, inguinal hernia repair surgery, and left shoulder (scars) warranted a 20 percent rating within a year prior to June 12, 2012. 2. The Veteran’s scars are not nonlinear covering an area of at least 72 square inches (465 square centimeters) but less than 144 square inches (929 square centimeters); and the Veteran does not have five or more scars that are unstable or painful. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to June 12, 2012, for a 20 percent rating for service connected left lower extremity chronic exertional compartment syndrome have not been met. 38 U.S.C. §§ 5101(a), 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.158, 3.400 (2018). 2. The criteria for an effective date prior to June 12, 2012, for a 20 percent rating for service connected right lower extremity chronic exertional compartment syndrome have not been met. 38 U.S.C. §§ 5101(a), 5110; 38 C.F.R. §§ 3.151, 3.155, 3.158, 3.400. 3. The criteria for an effective date prior to June 12, 2012, for a 20 percent rating for service connected scars have not been met. 38 U.S.C. §§ 5101(a), 5110; 38 C.F.R. §§ 3.151, 3.155, 3.158, 3.400. 4. The criteria for a disability rating in excess of 20 percent for the Veteran’s scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.118, Diagnostic Codes 7801, 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Coast Guard from April 2002 to June 2009. Effective Date The Veteran originally filed his service connection claim for his bilateral lower extremity chronic exertional compartment syndrome in July 2009, which was granted by a September 2009 rating decision and assigned a noncompensable rating effective June 16, 2009, the day after his separation from active service. An August 2010 rating decision granted service connection for his scars and assigned a 10 percent rating effective June 16, 2009. The August 2010 rating decision also granted an increased rating of 10 percent for his bilateral lower extremity chronic exertional compartment syndrome effective June 16, 2009. The Veteran did not appeal the August 2010 rating decision. On June 12, 2012, the Veteran filed an increased rating claim. A December 2013 rating decision continued his bilateral lower extremity chronic exertional compartment syndrome and granted a 10 percent rating for his bilateral lower extremity scars. An October 2014 rating decision combined the Veteran’s bilateral lower extremity scars, right third finger scar, and scar from residuals from inguinal hernia repair surgery into a single rating of 20 percent and granted an increased rating of 20 percent for the Veteran’s bilateral lower extremity chronic exertional compartment syndrome. The Board notes that the Veteran’s bilateral lower extremity chronic exertional compartment syndrome was previously rated under Diagnostic Code 8723, and as of the October 2014 rating decision, his bilateral lower extremity chronic exertional compartment syndrome was rated under Diagnostic Code 5311. The Veteran’s rating for his bilateral lower extremity chronic exertional compartment syndrome prior to June 12, 2012, is not reflected on the most current rating decision codesheet. The Veteran was granted an increased rating to 20 percent for his bilateral lower extremity chronic exertional compartment syndrome and his scars were consolidated into a single rating by the October 2014 rating decision with an effective date of June 12, 2012, the date the Veteran’s claim for an increased rating was received by VA. The Veteran first noted his desire for an earlier effective date for his bilateral lower extremity chronic exertional compartment syndrome and scars in his October 2014 notice of disagreement. He asserts that his bilateral lower extremity chronic exertional compartment syndrome and scars were initially evaluated under the improper Diagnostic Codes and that his current increased rating should date back to June 16, 2009. An effective date for increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability occurred, if application is received within one year from such date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400(o)(2). “[A]n increase in a veteran’s service connected disability must have occurred during the one year period prior to the date of the veteran’s claim in order to receive the benefit of an earlier effective date.” Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). As noted above, it is the date VA received the application for an increase that primarily controls the effective date of any such increase. With regard to the Veteran’s assertion that he is entitled to an earlier effective date, he did not file an application for an increased rating until June 12, 2012. In addition, he did not appeal the prior August 2010 rating decision, which became final. Any communication indicating an intent to apply for a benefit under the laws administered by VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that “[s]ection 5101(a) is a clause of general applicability and mandates that a claim must be filed in order for any type of benefit to accrue or be paid.” Thus, before VA can adjudicate an original claim for benefits, the claimant must submit a written document identifying the benefit and expressing some intent to seek it. See also Brannon v. West, 12 Vet. App. 32 (1998). Here, the record does not show that the Veteran sought an increased rating for his bilateral lower extremity chronic exertional compartment syndrome or scars prior to June 12, 2012, the date he submitted his increased rating claim. While the RO changed the Diagnostic Codes for the rating of the Veteran’s bilateral lower extremity chronic exertional compartment syndrome, the Veteran has not submitted evidence that the previous Diagnostic Code 8723 was improper. In addition, the Veteran’s scars were previously assigned two 10 percent ratings under Diagnostic Code 7804, which the RO consolidated into a single 20 percent rating that included the Veteran’s bilateral lower extremity scars. The Board has reviewed the evidence of record, but has not found any document in the year prior to June 12, 2012, that would make it factually ascertainable that the Veteran’s bilateral lower extremity chronic exertional compartment syndrome or scars warranted a 20 percent rating. Accordingly, the claim for effective dates earlier than June 12, 2012, for 20 percent ratings for bilateral lower extremity chronic exertional compartment syndrome and the Veteran’s scars is denied. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran was granted an increased rating of 20 percent under Diagnostic Code 7804 for his scars by an October 2014 rating decision effective June 12, 2012, the date his increased rating claim was received. The Veteran disagrees with the assigned rating and asserts that he is entitled to a higher rating. Under Diagnostic Code 7801, a 20 percent rating is assigned for scars not of the head, face, or neck that are dep and nonlinear with an area of at least 12 square inches (77 square centimeters) but less than 72 square inches (465 square centimeters). A 30 percent rating is assigned for scars with an area of at least 72 square inches (465 square centimeters) but less than 144 square inches (929 square centimeters). A 40 percent rating is assigned for scars with an area of 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7801. Under Diagnostic Code 7804, a 20 percent rating is assigned for three or four scars that are unstable of painful. A 30 percent rating is assigned for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. An April 2010 VA examiner noted that the Veteran’s inguinal repair surgery scar was tender and measured 6 centimeters linear. The examiner noted that there was no skin breakdown or adherence to underlying tissue. In June 2012, the Veteran was afforded a VA examination for his scars. The examiner reported that the Veteran’s left lower extremity scar measured 10 centimeters and his right lower extremity scar measured 10 centimeters. The examiner indicated that both scars were adherent to underlying tissue and that underlying soft tissue was missing. A December 2013 VA examiner noted that the Veteran’s left shoulder scar was not painful and/or unstable. The examiner reported that the Veteran’s bilateral lower extremity scars were minimally painful. The Veteran’s left lower extremity scar measured 9 centimeters and his right lower extremity scar measured 8 centimeters. The Veteran’s treatment records do not document findings consistent with higher ratings. The Veteran’s scars consist of his bilateral lower extremity scars, his right third finger scar, his inguinal hernia surgery repair scar, and his left shoulder scar. All scars were noted to be linear. As such, a rating under Diagnostic Code 7801 is not appropriate. While the Veteran has five scars, his left lower extremity, right lower extremity, right third finger, inguinal repair surgery, and left shoulder, only his bilateral lower extremity scars were noted to be painful and the RO previously determined that his right third finger scar and inguinal hernia repair scar were painful, and as such, assigned separate 10 percent ratings under Diagnostic Code 7804. As such, the evidence does not show that the Veteran has five or more scars that are unstable or painful, which is equivalent to a 30 percent rating. As such, the criteria for a rating in excess of 20 percent for the Veteran’s scars have not been met, and the Veteran’s claim is denied. REASONS FOR REMAND Regarding the Veteran’s increased rating claims for his bilateral lower extremity chronic exertional compartment syndrome, the Veteran reported that his bilateral lower extremity chronic exertional compartment syndrome restricted his daily activities in March 2014. He reported that his bilateral lower extremity chronic exertional compartment syndrome worsened in January 2017. The Veteran was last afforded a VA examination for his bilateral lower extremity chronic exertional compartment syndrome in June 2012. As such, a new examination is required to evaluate the current nature and severity of the Veteran’s bilateral lower extremity chronic exertional compartment syndrome. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected bilateral lower extremity chronic exertional compartment syndrome. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berryman, Counsel