Citation Nr: 1820002 Decision Date: 04/06/18 Archive Date: 04/16/18 DOCKET NO. 13-09 662A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 10 percent for burn scars on the forehead and bilateral ears. 2. Entitlement to a compensable rating for burn scars of the hands. 3. Entitlement to a rating in excess of 10 percent for painful burn scars. 4. Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Harper, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1970 to October 1973 in the United States Army. The Veteran may have an additional period of service, as he contends in a July 2013 statement. The Veteran contends he served an additional 10 months of service, sent stateside, and then returned to Vietnam after 22 days. The Veteran's DD 214 supports this contention as it notes that the Veteran entered this period of active service in Quinhon, Republic of Vietnam. This matter comes on appeal before the Board of Veterans' Appeals (Board) from April 2012 and July 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. As a procedural matter, the Veteran filed a claim for increased rating for painful scars on his bilateral hands and for "limited use" of the hands in June 2011. A VA examination afforded to the Veteran during the appellate period shows reduced range of motion in his fingers; however, the RO only adjudicated the reduced range of motion in the hands within the context of the claim for an increased rating for the bilateral hand scars under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7805 (2017). It appears from a review of the record that the Veteran is also claiming service connection for a separate bilateral hand disability that manifests as pain on repetitive motion, increased pain during flare ups, reduced grip during flare-ups, and reduced range of motion, in addition to the claim for an increase in rating for the scars. See August 2012 and August 2013 notice of disagreement. However, as this original service connection claim for a bilateral disability, excluding the bilateral burn scars to the hands, has not yet been adjudicated by the RO, this issue will be referred for further development as noted below. Also during the pendency of the appeal, the Veteran filed a claim for an increased rating for the forehead and bilateral ear burn scars in August 2012. The RO issued a rating decision denying the Veteran a higher than 10 percent rating for the scars on the forehead and ears in July 2013. The Veteran filed a timely notice of disagreement in August 2013. The RO issued a statement of the case in October 2015, but the Veteran did not file a timely substantive appeal to the Board. The Board notes that, although a substantive appeal was not filed pertaining to the increased rating claim for the Veteran's forehead and bilateral ear scars, a timely filed substantive appeal is not a jurisdictional bar to Board review. Thus, it is within the Board's discretion to waive the issue of timeliness under appropriate circumstances. See Percy v. Shinseki, 23 Vet. App. 37, 44-46 (2009). As such, the Board finds that the issue of an increased rating claim for the burn scars on the forehead and both ears is properly before the Board. Additionally, the Veteran contends that the bilateral hand pain, limited range of motion, and reduced grip during flare ups, as well as the pain from the service-connected burn scars on his hands, forehead, and ears make him unemployable. See August 2012 notice of disagreement and September 2015 VA examination. Under Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) stated that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. The Veteran raised the issue of unemployability in an August 2012 notice of disagreement. In light of the Court's holding in Rice, the Board considers the TDIU claim as part of his pending increased rating claims and has accordingly listed the raised TDIU claim as an issue on appeal. The Veteran, in his April 2013 substantive appeal to the Board, requested a video-conference hearing, which was scheduled to be held at the RO in May 2017. However, the Veteran did not appear for the hearing and the Board has not received a request to postpone or reschedule the hearing. Therefore, this appeal will proceed as though the request for a hearing has been withdrawn. 38 C.F.R. § 20.702 (d) (2017). The issues of bilateral hand pain, as a separate disability from the service-connected scar disability, was raised by the record in a June 2011 claim for compensation and again in the August 2012 notice of disagreement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issues of entitlement to an increased rating for painful scars of the hands and entitlement to a TDIU are REMANDED to the AOJ. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. The burn scars on the head and face do not manifest in visible or palpable tissue loss or gross distoriation or asymmetry of one or paired features with two or three characteristics of disfigurement. 2. The evidence is in equipoise that the Veteran's burn scars on the forehead, both ears, and both hands are all painful but not unstable. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the scars of the head and neck under Diagnostic Code 7800 are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118 Diagnostic Code 7800 (2017). 2. The criteria for a disability rating of 30 percent for burn scars of the forehead, both ears, and both hands have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118 Diagnostic Code 7804 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural Matters The Board limits its discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative, and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). II. Pertinent Increased Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through their senses. See Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Diagnostic Code 7800 concerns disfigurement of the head, face or neck due to scarring. That code section provides a 10 percent evaluation where there is one characteristic of disfigurement. A 30 percent evaluation is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with two or three characteristics of disfigurement. A 50 percent evaluation is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with four or five characteristics of disfigurement. An 80 percent evaluation is assigned when there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with six or more characteristics of disfigurement. 38 C.F.R. § 4.118, DC 7800. The 8 characteristics of disfigurement, for the purposes of evaluation under 38 C.F.R. § 4.118, DC 7800 are scars 5 or more inches (13 or more cm.) in length; scars at least one-quarter inch (0.6 cm.) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches (39 cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and skin indurate and inflexible in an area exceeding six square inches (39 sq. cm.). Id. at Note (1). DC 7804 provides that one or two painful or unstable scars warrant a 10 percent rating, three or four scars that are unstable or painful warrant a 20 percent rating, and five or more scars that are unstable or painful warrant a 30 percent rating. The Veteran is service-connected for multiple burn scars on his body. He was burned by white phosphorus in a mess hall fire when a stove blew up in Vietnam in February 1971. The first and second degree burns to his ears and hands were treated with skin grafts from his right hip. He also sustained burns to his forehead, scalp and right shoulder. The Veteran is in receipt of a 10 percent evaluation for his service-connected burn scars on the forehead and bilateral ears under Diagnostic Code 7800 for one disfiguring characteristic. The Veteran is also currently in receipt of a 10 percent rating for the painful scars effective June 10, 2011, the date the Veteran filed his claim for an increased rating for the bilateral hand scars, under DC 7804. Additionally, the Veteran has a noncompensable rating for the bilateral hand scars under DC 7802 for disfigurement. The Veteran contends his burn scars should be assigned higher ratings. Turning to the evidence of record, the Veteran was afforded a VA scars examination in March 2012. This examination only reported findings related to the burn scars of the dorsum area of the bilateral hands. Both scars were found to be less than deep partial thickness, superficial, and nonlinear. The examiner indicated the scars on both hands were immeasurable and the total surface area affected was immeasurable. The examiner indicated there were two scars on the hands and fingers that were intermittently painful with cold weather. None of the scars were unstable. The examiner found that the scars on the hands did not limit the Veteran's hand function, and there were no additional physical findings or complications associated with the bilateral hand scars. Photographs were taken and associated with the claims file. The examiner indicated the scars on the hands did not affect the Veteran's ability to work. The examiner noted that the there was no change in diagnosis and the scars had not resolved. The Veteran was afforded another VA examination in June 2013. The VA examiner focused on the forehead and bilateral ear scars. The examiner found burn scars on the Veteran's head, specifically a burn scar on the left frontal scalp (forehead), a scar of the left pinna (left ear), and a scar of the right pinna (right ear), which were all of deep partial thickness. The examiner reported that none of the scars were painful or unstable. The forehead burn scar measured 2 centimeters long by 3 centimeters wide. The bilateral ear scars measured 1 centimeter long by 0.5 centimeters wide each. No elevation or depression, adherence to the underlying tissue or missing soft tissue was found. All three scars exhibited hypopigmentation but only affected a total surface area of 7 square centimeters. No gross distortion, asymmetry of facial features, or visible or palpable tissue loss was seen. The examiner indicated there was no loss of function or functional impact from these scars. Photographs were taken and associated with the claims file. The examiner noted that there were no scars observed on either hand. The Veteran was afforded a third VA scars examination and a VA hand and finger examination in September 2015. The VA hand and finger examination is discussed in the remand section below. As to the forehead and bilateral ear scars, the September 2015 VA scars examination report indicated the Veteran's ears blister with exposure to the sun. The Veteran also was unable to wear a hat to protect his ears due to pain in the left forehead scar. The examiner observed three scars on the head. Scars were found on the helix of the left and right ears and on the left forehead and scalp. All three scars were described as less than deep partial thickness. The examiner reported that both of the scars on the Veteran's ears were sensitive to touch, but the forehead scar was not painful to deep and firm palpation. None of the scars were found to be unstable. The forehead and both ear scars were measured 0 centimeters by 0 centimeters, as the examiner concluded the scars had resolved. Further, the examiner provided a mirror to the Veteran and asked him to trace where the forehead scar appeared and concluded that he could not do so. He only could show the examiner where the scar used to be. After reviewing the evidence, both lay and medical, the Veteran's forehead/scalp, bilateral ears and bilateral hand scars are painful. Though the June 2013 and September 2015 VA examiners stated that the Veteran's forehead and bilateral hand scars were not painful, the Veteran's reports of painful forehead and bilateral hand scars are well-documented in all of the VA examination reports, August 2012 notice of disagreement, April 2013 substantive appeal, and in an August 2011 VA treatment record. Additionally, objective evidence of pain in the hands and ears were found in the March 2012 and September 2015 VA examinations. Indeed, the Veteran is competent to testify regarding observable symptoms, such as pain associated with a scar, because this requires only personal knowledge as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Moreover, the Board does not doubt the credibility of his statements. For these reasons, the Board finds the evidence is in equipoise that the forehead, bilateral hand, and bilateral ear scars have manifested by pain for the period on appeal. Therefore, a separate rating of 30 percent under DC 7804 for five or more painful scars is warranted. 38 C.F.R. §§ 4.3, 4.7. However, a rating in excess of 10 percent is not warranted under DC 7800 for the forehead/scalp and bilateral ear scars. The evidence does not show that the Veteran has visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or two or three characteristics of disfigurement as listed in Note 1. The Veteran's forehead scar measured a width greater than 0.6 centimeters in the June 2013 VA examination, but no other disfiguring characteristics were found in any of the VA examinations and the Veteran has not contended there are any additional disfiguring characteristics. Therefore, a rating in excess of 10 percent under DC 7800 is not warranted. The claims for a compensable rating under DC 7801 and/or 7802 for the bilateral hand, right shoulder, and right hip scars is remanded as discussed below. Additionally, the Veteran has reduced range of motion in his finger joints as described in a September 2015 VA examination. However, further development is required before adjudication can be completed for DC 7805. Therefore, the claim for separate ratings under DCs 7801 and/or 7802 and 7805 are remanded for further development. ORDER Entitlement to a disability rating in excess of 10 percent for the scars of the forehead and ears under DC 7800 is denied. Entitlement to a 30 percent disability rating for the painful scars on the forehead, bilateral ears, and bilateral hands under DC 7804 is granted. REMAND This claim must be remanded for additional VA examinations and medical opinions. The Veteran's claim has been construed by the RO, and certified to the Board, to include a claim for an increased rating for a right shoulder scar; however, it does not appear that the Veteran has been afforded an examination of the right shoulder scar during the pendency of the appeal. The Veteran also has a scar on the right hip where skin was taken for a skin graft during service to treat the burn scars on his ears and hands. The severity and characteristics, to include the surface area of the right shoulder burn scar and right hip donor site scar, impact how the Veteran's scars disability rating is analyzed under Diagnostic Codes 7801 and/or 7802. Therefore, the claim for an increased rating for the bilateral hands under DC 7802 is inextricably intertwined with the right shoulder scar and right hip scar and is remanded so that all scars of the trunk and extremities can be evaluated together. Additionally, a June 2011 VA neurology consult indicates the Veteran has residuals of the in-service burns on the bilateral hands. The VA neurologist questioned if the Veteran may experience peripheral neuropathy in his hands in relation to the scarring and noted that nerve conduction velocity testing should be conducted. In an August 2011 VA neurology consult, the Veteran was afforded nerve conduction testing, which was abnormal. However, it appears that the nerve conduction testing was only conducted for the lower extremities and not for the hands. The Veteran has been afforded VA scars examinations in March 2012, June 2013, and September 2015. However, the Veteran has not yet been afforded nerve conduction testing to determine if the in-service burns caused nerve damage. Thus, the Veteran should be afforded an additional VA examination to determine whether there is any nerve damage related to the bilateral hand scars or from the burns sustained in service. Finally, the RO obtained a medical opinion in September 2015 regarding limitation of motion in the context of the bilateral hand scars increased rating claim. The examination report is confusing. First the examiner indicates there are two scars, one on each hand, of deep partial thickness. However, the examiner later indicates that there is no appreciable scarring on the dorsum of either hand and indicated there were neither superficial nonlinear scars nor deep non-linear scars of either hand. The examiner reported, in part, that the bilateral hand scars did not interfere with the movement of the fingers. However, the corresponding September 2015 VA hand and finger examination report indicates there is reduced flexion in the bilateral PIP and MCP joints of fingers II through V. The VA examiner concluded that the Veteran's bilateral hand and finger pain was not caused by the burn scars or the burns sustained in service. However, no rationale was provided to substantiate this conclusion and no alternative etiology was provided for the reduced range of motion in the finger joints as requested by the RO. The examination is internally inconsistent and clarification is required and a rationale is required to support all medical conclusions provided. Finally, as the claim for TDIU has not yet been developed, it must be remanded to the RO for further development and adjudication. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding pertinent VA treatment records and associate with the claims file. 2. Provide the Veteran appropriate notice in connection with the claim for TDIU. The RO should request the Veteran complete an Application for Increased Compensation based on Unemployability (VA Form 21-8940). 3. Schedule the Veteran for VA scars examination to determine the nature and severity of the service connected scars on the hands, right shoulder, and right hip. In addition to addressing the rating criteria for scars under DCs 7801, 7802, and 7805 in the examination, the examiner is asked to address the following: (a) Provide an opinion on whether the Veteran has nerve damage in his hands and/or fingers that is etiologically related to the burn scars or to the burns incurred during service. (b) Provide an opinion, to include a thorough rationale, as to whether the service-connected burn scars on the hands cause or aggravate the limitation of motion found in the finger joints. 4. Readjudicate the claims on appeal. The appellant has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2012). ______________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs