Citation Nr: 1806502 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-10 805A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased rating for degenerative disc disease (low back disability). 2. Entitlement to an initial increased rating for scarring associated with the service-connected low back disability. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD N. Robinson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1989 to August 2009. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction over the Veteran's case is now with the Atlanta, Georgia RO. The Board notes that in his August 2014 VA Form 9 (substantive appeal), the Veteran indicated that he was only appealing the issue of entitlement to an increased rating for scarring, and that he was not appealing the other issue in the February 2014 statement of the case (SOC), entitlement to an increased rating for a service-connected low back disability. However, the RO subsequently arranged the Veteran's August 2015 VA back conditions examination and certified the back disability increased rating claim appeal to the Board. Furthermore, the Veteran's then representative included both issues in the August 2015 appellate brief. Because VA has treated this claim as if the Veteran had perfected his appeal, and because the Veteran filed a timely notice of disagreement (NOD) and attended his scheduled VA examination, the Board considers this claim as in appellate status. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (the filing of a substantive appeal is not a jurisdictional requirement and may be waived). In addition, the Board finds that the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, and is taking jurisdiction of a claim for a TDIU rating as part and parcel of the claim seeking an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Finally, the Veteran was previously represented by a private attorney and by the American Legion; however, a review of the claims file indicates that he is now unrepresented. The issues of entitlement to an increased rating for a low back disability and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving reasonable doubt in his favor, the Veteran's service-connected back scars are painful. CONCLUSION OF LAW An increased rating of 10 percent, but no higher, is warranted for the Veteran's service-connected back scars. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.7, 4.118, Diagnostic Code (DC) 7804 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veteran has not raised concerns with the duty to notify. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Regarding the duty to assist, the Veteran stated that his report to the VA examiners that his back scarring was painful was not accurately reflected in the examination reports. Because the Board finds the Veteran's statement competent and credible and is granting the benefit requested, the Board finds that this examination report error or omission is harmless. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands that would only result in imposing additional burdens on VA, with no benefit flowing to the claimant, are to be avoided). Legal Criteria, Factual Background, and Analysis In his March 2014 substantive appeal, the Veteran reported that he had explained to the VA examiners that his back scars are painful to the touch and asked for an increased rating of 10 percent under DC 7804. In his August 2015 appellate brief, the Veteran's then representative requested a higher rating for painful scarring. Under DC 7804, a 10 percent rating is awarded for one or two scars that are unstable or painful. 38 C.F.R. §§ 4.118. The Board finds the Veteran competent to report that his scars are painful and finds no reason to doubt his credibility. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, an increased rating of 10 percent for painful back scars is warranted. The Board acknowledges the October 2011 and August 2015 VA examiners' notations that the scars were not painful. However, because this symptom is capable of lay observation and the Veteran stated that he did, in fact, report the scars were painful, the Board assigns less probative weight to the examiners' findings. In order to receive a higher rating under DC 7804, the evidence must show that the scars are unstable and painful or that there are three or more unstable or painful scars. 38 C.F.R. §§ 4.118, DC 7804, Note 2. The August 2015 VA examiner recorded that the Veteran has two linear back scars, measuring 12 cm and 6 cm, and that the scars were not unstable. The remaining evidence does not show and the Veteran does not contend that he has more than two painful low back scars or that these scars are unstable. A higher rating is also not available under the other scarring DCs that provide ratings greater than 10 percent (DC 7800 and DC 7801) because these scars are not head, face, or neck scars or deep and nonlinear scars at least 77 cm. sq. in size. See 38 C.F.R. §§ 4.118, DC 7800-7801. Moreover, as noted above, the Veteran reviewed the pertinent regulation and specifically requested a rating of 10 percent under DC 7804. Accordingly, a rating of 10 percent but no higher for back scarring is warranted. ORDER An increased rating of 10 percent, but no higher, for service-connected back scars is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND Low back disability The Veteran is requesting a higher initial rating for his low back disability, currently rated at 10 percent under DC 5237. His August 2015 VA examination does not comply with the U.S. Court of Appeals for Veterans Claims' decision in Correia v. McDonald because the examiner did not report results of both active and passive range of motion testing. Correia v. McDonald, 28 Vet. App. 158 (2016). This information is necessary because the Veteran's disability rating is dependent on his range of motion. In addition, the examiner stated that she was unable to opine whether pain, fatigability, or incoordination significantly limit the Veteran's functional ability because she would need to observe this in real time. The Board finds this response inadequate because the examiner did not elicit and take into account the Veteran's lay statements about the functional impact of his symptoms. The examiner also did not provide information about the presence or absence of flare-ups. On remand, the examiner should provide information about flare-ups including an estimation of functional loss in degrees based on the lay and medical evidence. See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017) (a VA examination is inadequate when the VA examiner does not "estimate the [Veteran's] functional loss due to flares based on all the evidence of record (including the [Veteran's] lay information) or explain why [he or she] could not do so"). Accordingly, a remand is necessary to arrange a new examination and an adequate opinion. TDIU The TDIU claim is remanded as intertwined with the increased rating claim also being remanded. In other words, additional information obtained during the requested VA back examination (or other information regarding employability provided by the Veteran on remand) could support this claim. Accordingly, the case is REMANDED for the following action: 1. Obtain any updated VA or adequately identified treatment records related to the Veteran's service-connected back disability. 2. Invite the Veteran to submit any additional medical or lay evidence supporting his TDIU claim. 3. Then schedule the Veteran for an appropriate VA examination to assess the severity of his service-connected back disability. The claims folder and all pertinent medical records should be made available to the examiner for review. All necessary diagnostic testing should be performed. The examiner must describe all impairments of the Veteran's back disability; make determinations regarding range of motion, including any additional functional impairment; and identify any related neurological symptoms. The examiner must test active and passive range of motion, and provide weight-bearing and non-weight-bearing information, or detail why such testing is not necessary. Range of motion should be expressed in terms of degrees for active and passive motion. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion caused by flare-ups of the Veteran's back disability (if the Veteran is not experiencing a flare-up at the time of the examination, the examiner should ask the Veteran to describe the frequency, severity, duration, and type of symptoms she experiences during flare-ups and provide an opinion based on that information). The examiner's comments should include whether there was additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc. Any determination concerning this functional loss or loss during flare-ups should be expressed in degrees of additional range of motion loss. The examiner must also: a. Describe the functional impairment caused by the Veteran's back disability taking into account the Veteran's statements and other evidence of record regarding his education and work experience. b. Comment on the Veteran's ability to function in an occupational environment in light of his back disability. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also request in a clarification being requested). 4. The AOJ should then readjudicate the claims on appeal. If any remain denied, the AOJ should issue an appropriate supplemental statement of the case and give the Veteran the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs