Citation Nr: 1808385	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  14-09 074	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to an increased rating for a medial scar of the right leg, rated as noncompensable prior to December 10, 2013, and as 10 percent disabling thereafter.

2.  Entitlement to an increased rating for a lateral scar of the right leg, rated as noncompensable prior to December 10, 2013, and as 10 percent disabling thereafter.

3.  Entitlement to an increased rating for a medial scar of the right thigh, rated as noncompensable prior to December 10, 2013, and as 10 percent disabling thereafter.

4.  Entitlement to an increased rating for a second medial scar of the right thigh, rated as noncompensable prior to December 10, 2013, and as 10 percent disabling thereafter.

5.  Entitlement to an increased rating for status post popliteal artery tear and contusion, currently rated as 10 percent disabling.

6.  Entitlement to a total disability rating based upon individual unemployability (TDIU).
REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


WITNESSES AT HEARING ON APPEAL

Appellant and spouse


ATTORNEY FOR THE BOARD

R. Erdheim, Counsel


INTRODUCTION

The Veteran served on active duty from September 1972 to July 1993. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Veteran provided testimony at a hearing before the undersigned Veterans Law Judge.

The issues of entitlement to an increased rating for status post popliteal artery tear and contusion and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Prior to December 10, 2013, the Veteran's four scars of the right leg and thigh have been painful.

2.  Since December 10, 2013, the Veteran's four scars of the right leg and thigh have been painful, but have not been shown to be superficial and nonlinear, or deep and nonlinear.


CONCLUSIONS OF LAW

1.  Prior to December 10, 2013, the criteria for a 20 percent rating for four painful scars have been met.  38 U.S.C. §§ 1155, 5103, 5107(2012); 38 C.F.R. § 3.102, 3.159, 4.118, DCs 7801, 7802, 7804 (2017).

2.  Since December 10, 2013, a rating in excess of 10 percent for a medial scar of the right leg have not been met.  38 U.S.C. §§ 1155, 5103, 5107(2012); 38 C.F.R. § 3.102, 3.159, 4.118, DCs 7801, 7802, 7804 (2017).

3.  Since December 10, 2013, a rating in excess of 10 percent for a lateral scar of the right leg have not been met.  38 U.S.C. §§ 1155, 5103, 5107(2012); 38 C.F.R. § 3.102, 3.159, 4.118, DCs 7801, 7802, 7804 (2017).

4.  Since December 10, 2013, a rating in excess of 10 percent for a medial scar of the right thigh have not been met.  38 U.S.C. §§ 1155, 5103, 5107(2012); 38 C.F.R. § 3.102, 3.159, 4.118, DCs 7801, 7802, 7804 (2017).

5.  Since December 10, 2013, a rating in excess of 10 percent for a second medial scar of the right thigh have not been met.  38 U.S.C. §§ 1155, 5103, 5107(2012); 38 C.F.R. § 3.102, 3.159, 4.118, DCs 7801, 7802, 7804 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  Separate diagnostic codes identify the various disabilities.  38 C.F.R. Part 4.  When rating a service-connected disability, the entire history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

Diagnostic Code 7801 concerns deep and nonlinear scars.  A 10 percent evaluation is warranted for a deep and nonlinear scar that encompasses an area or areas of at least 6 square inches but less than 12 square inches. 

Diagnostic Code 7802 concerns scars that are superficial and nonlinear.  A 10 percent rating is warranted for a superficial and nonlinear scar that involves an area or areas of 144 square inches or greater.

Diagnostic Code 7804 provides a 10 percent rating for one or two scars that are unstable or painful.  A 20 percent rating is warranted for three or four scars that are unstable or painful.  38 C.F.R. § 4.118, Diagnostic Code 7804.  If one or more scars are both unstable and painful, 10 percent will be added to the evaluation that is based on the total number of unstable or painful scars.  See Note (2).

Diagnostic Code 7805 provides for other scars to be evaluated by any disabling effects not considered in a rating provided under codes 7800-04 under an appropriate diagnostic code.  38 C.F.R. § 4.118, Diagnostic Code 7801-7805.

The Board finds that prior to December 10, 2013, a 20 percent rating is warranted for four painful scars of the right leg and thigh.  Specifically, on December 2013 VA examination, the Veteran reported that all four scars located on his right leg and thigh were uncomfortable or tender when touched or rubbed.  Thus, the Board finds that pursuant to DC 7804, a 20 percent rating is warranted for four painful scars.  In that regard, the Board notes that the Veteran's fifth scar, located on his right wrist, has not been reported or shown to be painful or unstable.  Thus, the Veteran would not be entitled to a higher 30 percent rating under DC 7804.  Moreover, none of the examinations of record reflect that the Veteran's scars are both deep and nonlinear, or both superficial and nonlinear, or that the scars result in functional impairment that has not otherwise been compensated.  Mainly, the Veteran reports that his right leg disability is manifested by severe neurological symptoms, to include right foot drop, weakness, and pain.  However, he is already in receipt of a 40 percent rating for complete paralysis of the right sciatic and peroneal nerves, and a 10 percent rating for status post popliteal artery tear and contusion affecting the right leg.

The Board notes that since December 10, 2013, the Veteran has been in receipt of four separate 10 percent ratings for painful scars of the right leg and thigh, and that these ratings do not follow the instructions set forth under the rating criteria located at 38 C.F.R. § 4.118, DC 7804.  These four 10 percent ratings result in a rating higher than 20 percent.  However, the Board will not disturb these ratings at this time, and instead finds that higher ratings are not warranted.  Specifically, under the remaining scar rating codes, the necessary criteria have not been met.  While the Veteran has set forth the contention that his scars are disfiguring, the Board notes that ratings for disfigurement are only applicable for scars affecting the head, face, and neck.  The reiterates that the VA's Schedule for Rating Disabilities is based, as far as practically can be determined, on average impairment in earning capacity.  The Veteran has not contended or shown that the long scars located on his right leg and thigh have caused functional impairment to earning capacity outside of the degree contemplated by his current ratings.


ORDER

Prior to December 10, 2013, a 20 percent rating for four painful scars is granted, subject to the laws and regulations governing the award of monetary benefits.

Since December 10, 2013, a rating in excess of 10 percent for a medial scar of the right leg is denied.

Since December 10, 2013, a rating in excess of 10 percent for a lateral scar of the right leg is denied.

Since December 10, 2013, a rating in excess of 10 percent for a medial scar of the right thigh is denied.

Since December 10, 2013, a rating in excess of 10 percent for a second medial scar of the right thigh is denied.


REMAND

Additional development is necessary with regard to the claims of entitlement to an increased rating for status post popliteal artery tear and contusion and a TDIU.

At his hearing, the Veteran reported that his right leg would swell.  The most recent VA examination regarding the Veteran's popliteal artery injury was conducted in May 2011, at which time no edema was noted to be present.  In light of the Veteran's statements and the time that has passed since the most recent examination, the Board finds that a new VA examination is necessary to accurately assess the Veteran's claim.  

The Board notes that the Veteran's claim has been inaccurately rated pursuant to DC 7122 during the appeal period, however, the disability was originally evaluated pursuant to DC 7121, and such is the accurate code to rate the Veteran's disability on remand.

With regard to the Veteran's claim for a TDIU, the Board finds that an opinion regarding the effects of the Veteran's right leg disability on his employability should also be obtained.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for an examination to determine the current severity of his status post popliteal artery tear and contusion.  The appropriate Disability Benefits Questionnaire, (DBQ), should be utilized if possible.

The examiner should also provide an opinion as to the limitations of the Veteran's right lower extremity disabilities (right sciatic and peroneal palsy, right knee disability, popliteal artery tear and contusion, and right femoral fracture) on his occupational functioning.

2.  Then, readjudicate the claims for increased rating for status post popliteal artery tear and contusion under DC 5121 and a TDIU.  If the appeal remains denied, furnish the Veteran and his representative with a Supplemental Statement of the Case before the case is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (2012).



______________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs