Citation Nr: 20004881 Decision Date: 01/23/20 Archive Date: 01/21/20 DOCKET NO. 13-36 712A DATE: January 23, 2020 ORDER Entitlement to a rating in excess of 10 percent for an abdominal gunshot wound with scars is denied. Entitlement to an effective date earlier than January 22, 2010 for the rating of 10 percent for an abdominal gunshot wound with scars is denied. REMANDED Entitlement to a rating in excess of 50 percent for major depression is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s abdominal gunshot wound with scars has resulted in two painful scars. 2. The Veteran filed a request for an increased rating for an abdominal gunshot wound with scars on January 22, 2010. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for an abdominal gunshot wound with scars have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.73, 4.118, Diagnostic Codes (DCs) 5319, 7804 (2018). 2. The criteria for an effective date earlier than January 22, 2010 for the rating of 10 percent for an abdominal gunshot wound with scars have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.105(a), 3.400(b)(2)(i) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1965 to September 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal from October 2010 and November 2013 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). A prior remand was issued by the Board in February 2018. I. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Pertinent regulations also provide that it is not necessary for all of the individual criteria to be present as set forth in the Rating Schedule, but that findings sufficient to identify the disability and level of impairment be considered. 38 C.F.R. § 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s abdominal gunshot wound with scars is rated under a hyphenated DC. DC 5319 Group XIX, for muscles of the abdominal wall, and DC 7804 for unstable or painful scars. Under DC 5319 for a slight disability, a rating of 0 percent is assigned. For a moderate disability, a rating of 10 percent is assigned. For a moderate severe disability, a rating of 30 percent is assigned, and finally, for a severe disability, a rating of 50 percent is assigned. Under DC 7804 a 10 percent rating is warranted 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; and a 30 percent rating is warranted for five or more scars that are unstable or painful. 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 if one or more scars are both unstable and painful, VA is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. 1. Entitlement to a rating in excess of 10 percent for an abdominal gunshot wound with scars. On January 22, 2010, the Veteran requested a rating increase for his service-connected abdominal gunshot wound with scars. He has been given two VA examinations for his abdomen and scars since that time. The Veteran had a VA examination in February 2011, wherein the examiner diagnosed him with a long surgical scar of the abdomen as a result of exploratory laparotomy for gunshot wound, two small scars as a result of entry wounds of bullet injuries, and one scar in the right lower quadrant of the abdomen as a result of a drain site. With regard to his major surgical scar, the examiner noted “The naval part of the scar is painful because in that area he also has an umbilical hernia. Otherwise, the scar is not painful. None of the scars are painful.” However, the examiner went on to note that “The scar is definitely causing some limitation because he has difficulty in bending and cannot tie his shoelaces himself. He also has difficulty in walking.” The examiner listed the Veteran’s main scar to be about nine inches long and ¼-inch wide and nonlinear. He listed three other small scars, two of which were the bullet entry and exit points measuring about 1/3-inch long and ¼ inch wide each, and the third as measuring as one inch and about ¼-inch wide. He noted that on palpitation none of the scars are painful, and they are superficial, not deep scars. In September 2013 the Veteran had another VA examination specifically for his scars. He was noted to have two painful scars to the midline and right lower abdomen. The examiner noted that they were tender with pulling and had aching pain on palpation. The examiner listed a total of 4 scars, two being nonpainful and linear measuring at 3.1 cm and 1.1 cm, respectively. Of the other two scars, one was tender and linear measuring at 27.2 cm, and the main surgical scar was tender, non-linear measuring at 4.1 x 1.2 cm. The approximate total area of deep non-linear scars on the anterior trunk was 4.8 cm2. As for his medical opinion, the examiner stated that the Veteran’s “scars themselves, while tender, do not affect his functioning.” Pursuant to DC 7804, one or two scars that are unstable or painful should be evaluated at 10 percent. As noted above, the Veteran has two painful scars. Thus, the currently assigned 10 percent rating specifically provides compensation for the Veteran’s scar pain. Additionally, the size of the scars do not meet the criteria for a compensable rating under DC 7801 and DC 7802. A review of the record shows the Veteran’s abdomen to be well healed with no separate abdominal muscular issues, as explained below. A separate rating under DC 5319 is not warranted. Accordingly, entitlement to a rating in excess of 10 percent for an abdominal gunshot wound with scars is denied. II. Earlier Effective Date Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date upon receipt of new and material evidence after a final disallowance will be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). With respect to claims of entitlement to service connection, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation. See 38 C.F.R. § 3.400(b)(2). The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b)(3). 2. Entitlement to an effective date earlier than January 22, 2010 for the rating of 10 percent for an abdominal gunshot wound with scars. The Veteran was originally granted service connection for residuals of gunshot wound to the abdomen in an August 1999 rating decision evaluated at 0 percent, effective September 8, 1997. Since that time, the Veteran has undergone several VA examinations for this condition. The Veteran, through his representative, has argued that because of his claim for an increased rating he is “entitled to the earliest date of when it was ascertainable that his disability had worsened.” A review of the evidence shows that the Veteran’s first examination for his abdominal gunshot wounds was in October 1997. Here, the examiner diagnosed the Veteran with a history of two gunshot wounds to the abdomen, with immediate laparotomy. The examiner further noted “It appears from the history that part of the stomach was removed, without other organ removals. There is no history of further treatment or of any compilations. The patient has remained asymptomatic.” The Veteran had another VA examination in July 1999. Here, the examiner noted “There is no residual damage from the gunshot wound of the abdomen, but since the patient stated he was told he still had bullet in his abdomen, he was sent for abdominal x-ray.” X-rays showed a foreign body overlying the right upper quadrant likely representing a bullet fragment. In December 2004 the Veteran had a VA examiner wherein he was noted to have a “well-healed, midline, supraumbilical surgical scar.,” with no masses or tenderness. Under diagnoses, the examiner listed “Status post old gunshot wound, abdomen. No current complaints.” At a July 2005 VA examination for his diabetes, the examiner noted “He has well healed surgical scars from the gunshot repair in 1968, and he also has scars in his right upper quadrant from kidney stone surgery.” The Veteran also had a separate exam at this time for his scar, here the examiner noted “Both of those scars have healed up very well and patient has no symptoms in the scars and patient is not taking any treatment for the scars.” The examiner noted the first scar to be nine and about one-half inches long, and the second as only a half-inch long. He opined that both scars were nontender, non-adherent, and there was no ulceration, elevation or depression, no loss of underlying tissue, no inflammation or keloid formation, no disfigurement, and no limitation of function. The same examiner gave a similar opinion about the Veteran’s scars in July 2006, again noting no tenderness, adherence, ulceration, elevation, loss of tissue, inflammation, discoloration, disfigurement, and no loss of function. The Veteran had another VA examination in November 2007. Here, the examiner noted “On examination Veteran has a well-healed scar in the midline of exploratory laparotomy. There is no clinical evidence of any weakness in the group 19 muscle.” The examiner went on to say “Clinically, there is no evidence of musculoskeletal limitation from residual from muscle injury to abdominal wall either due to pain, weakness, fatigue, lack of endurance after repetitive motion, incoordination or flareup. There is no evidence of adverse impact on activities of daily living, personal grooming, hygiene, transportation, and Veteran is retired, therefore, impact on occupation can not [sic] be established.” The Veteran had another VA examination is February 2011, wherein the examiner noted current symptoms from his scar as “The naval part of the scar is painful because in that area he also has an umbilical hernia. Otherwise, the scar is not painful. None of the scars are painful.” However, the examiner went on to note that “The scar is definitely causing some limitation because he has difficulty in bending and cannot tie his shoelaces himself. He also has difficulty in walking.” The examiner listed the Veteran’s main scar to be about nine inches long and ¼-inch wide and nonlinear. He listed three other small scars, two of which were the bullet entry and exit points measuring about 1/3-inch long and ¼ inch wide each. He notes that on palpitation none of the scars are painful, and they are superficial, not deep scars. In September 2013 the Veteran had a VA examination specifically for his scars. He was noted to have two painful scars to the midline and right lower abdomen. The examiner noted that they were tender with pulling and had aching pain on palpation. The examiner listed a total of four scars, two being nonpainful and linear measuring at 3.1 cm and 1.1 cm. Of the other two scars, one was tender and linear measuring at 27.2 cm, and the other was tender, non-linear measuring at 4.1 x 1.2 cm. The approximate total area of deep non-linear scars on the anterior trunk was 4.8 cm2. As for his medical opinion, the examiner stated that the Veteran’s “scars themselves, while tender, do not affect his functioning.” In a November 2013 rating decision, the Veteran’s evaluation of gunshot wound to abdomen with scars was increased from zero to 10 percent, effective January 22, 2010, the date he requested an increase. As noted above, the first time the Veteran’s scar was found to be painful was at the February 2011 VA examination, wherein only the naval part of his scar was noted as painful due to a non-service-connected umbilical hernia. However, the Veteran was again noted to have two painful scars at the September 2013 VA examination. As such, the RO granted a rating of 10 percent under DC 7804 for one or two scars that are unstable or painful. The effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The RO granted a 10 percent rating effective the date of the Veteran’s request for an increased rating. Accordingly, entitlement to an effective date earlier than January 22, 2010 for a 10 percent rating of an abdominal gunshot wound with scars is denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 50 percent for major depression is remanded. This claim was previously remanded in February 2018 and the RO was instructed to update the record and readjudicate the claims, issuing a supplemental statement of the case (SSOC) if the benefits sought were still denied. The Board notes that the RO has not issued an SSOC with regard to the Veteran’s request for an increased rating of his major depression. Accordingly, remand is warranted for the issuance of an SSOC. See Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to TDIU is remanded. The issue of entitlement to TDIU is inextricably intertwined with the claim for a rating in excess of 50 percent for major depression. Thus, this issue is remanded as well. The matters are REMANDED for the following action: 1. Furnish the Veteran and his representative with an SSOC regarding the issues of entitlement to a rating in excess of 50 percent for major depression and entitlement to TDIU. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.