Citation Nr: 20026035 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 19-34 414 DATE: April 15, 2020 ORDER Entitlement to a rating in excess of 10 percent disabling for pelvic adhesions is denied. Entitlement to a 10 percent rating, but no greater, for a scar, residual of laparoscopy, is granted. REMANDED Entitlement to a rating in excess of 20 percent disabling for a lumbar spine disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. During the period on appeal, the Veteran’s pelvic adhesions symptoms most nearly approximated symptoms that required continuous treatment. 2. During the period on appeal, the Veteran’s scar, residual of laparoscopy, symptoms most nearly approximated a painful scar. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent disabling for pelvic adhesions have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7614 (2019). 2. The criteria for entitlement to 10 percent rating, but no greater, for a scar, residual of laparoscopy, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7802. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider a veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. See 38 C.F.R. § 3.400(o); Hart, 21 Vet. App. at 509. 1. Entitlement to a rating in excess of 10 percent disabling for pelvic adhesions. The Veteran contends that she is entitled to a rating in excess of 10 percent disabling for pelvic adhesions, as her symptoms more nearly approximate the criteria for a higher rating. She is currently rated as 10 percent disabled under Diagnostic Code 7699-7614. Diagnostic Code 7699 is a “built-up” code number, meaning it represents an unlisted condition. For such Diagnostic Codes, the first two digits are selected from the part of the Rating Schedule that most closely identifies the body part or system involve and the last two digits of the Diagnostic Code are “99” for all unlisted conditions. Additionally, this condition was assigned a hyphenated Diagnostic Code. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code determines its rating based on a residual condition, with the number following the hyphen representing the residual. 38 C.F.R. § 4.27. Diagnostic Code 7614 therefore references an unlisted gynecological condition with symptoms residual of adhesions of the fallopian tube. Under Diagnostic Code 7614, a noncompensable rating is warranted for symptoms that do not require continuous treatment; a 10 percent rating is warranted for symptoms that require continuous treatment; and a 30 percent rating is warranted for symptoms not controlled by continuous treatment. 38 C.F.R. § 4.116. In an October 2017 Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran indicated that her pelvic adhesions disability contributed to her inability to secure or follow substantially gainful employment. In a November 2017 VA authorized examination, the examiner noted a diagnosis of pelvic adhesions, with an onset of symptoms in 1998. The Veteran stated that the condition stayed the same until she underwent a hysterectomy in 2011, and that she was “now better.” The examiner also indicated that she underwent a complete oophorectomy in 2011. The examiner noted that she did not have current symptoms related to the condition and did not require treatment or medication for symptoms related to reproductive tract conditions. The examiner stated that the Veteran’s condition was quiescent at that time. She indicated that she was unable to do a pap smear due to her condition. In a July 2019 VA authorized examination, the Veteran reported that her condition improved after she underwent a hysterectomy. She indicated that she experienced occasional pelvic pressure, but not pain like before. The examiner documented that she exhibited symptoms which required continuous hormone therapy treatment following her oophorectomy. Accordingly, the Board finds that the preponderance of the evidence is against a finding for entitlement to a rating in excess of 10 percent disabling for pelvic adhesions. The record reflects that after undergoing a hysterectomy and oophorectomy, the Veteran’s symptoms improved. The July 2019 examiner indicated that her condition resulted in occasional pelvic pressure and that she controlled her symptoms and residuals with hormone therapy. There is no indication from the evidence of record that the Veteran exhibited symptoms which were not controlled by continuous treatment, and she is separately compensated for residuals of her hysterectomy and oophorectomy procedures. Therefore, entitlement to a rating in excess of 10 percent disabling is not warranted. 2. Entitlement to a compensable disability rating for a scar, residual of laparoscopy. The Veteran contends that she is entitled to a compensable disability rating for a scar, residual of laparoscopy, as her symptoms more nearly approximate the criteria for a higher rating. She is currently rated as noncompensably disabled under Diagnostic Code 7805. The Veteran’s scar is rated under Diagnostic Code 7805 for other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Diagnostic Code 7805 was not changed by the August 13, 2018, amendments. Diagnostic Code 7805 instructs that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 should be rated under an appropriate Diagnostic Code. In this instance, the Board finds that the application of Diagnostic Code 7804 is more appropriate and the criteria for the Diagnostic Code considers the Veteran’s symptoms. Diagnostic Code 7804 was also not changed by the August 13, 2018, amendments. Under Diagnostic Code 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. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. In her October 2017 Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran indicated that her scar disability contributed to her inability to secure or follow substantially gainful employment. In a November 2019 VA authorized examination, the examiner noted a diagnosis of laparoscopic surgery scars, and hysterectomy and abdominoplasty scars. The Veteran stated that her hysterectomy scar was painful, and the examiner documented the pain as one on a scale of five. The examiner indicated that the hysterectomy scar was not unstable and had a total area of 15 square centimeters. The examiner noted that the scar was also tender to palpation. The examiner indicated that the scar did not result in limitation of function and did not have any other complications, conditions, signs, or symptoms. In a July 2019 VA authorized examination, the examiner noted a scar associated with an abdominal hysterectomy. The examiner indicated that the Veteran did not experience any current symptoms from the scar and that none of the scars were painful. The examiner documented that the scar had an approximate total area of 15 square centimeters. The examiner indicated that the scar did not result in limitation of function and did not have any other complications, conditions, signs, or symptoms. The Board finds that the preponderance of the evidence is at least in relative equipoise regarding whether the Veteran’s scar, residual of laparoscopy, was painful throughout the period on appeal. While the October 2017 and November 2019 examinations give differing opinions regarding pain associated with the Veteran’s scar, the Board notes that she is competent to report symptoms which are observable to a layperson, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that a layperson is competent to identify observable symptoms). Resolving all reasonable doubt in favor of the Veteran, the Board finds that her scar manifested symptoms of pain. The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran’s scar is not of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage. Although it is superficial and not associated with underlying soft tissue damage, it does not cover an area or areas of 144 square inches or greater. Therefore, Diagnostic Codes 7800 through 7802, both prior to and from August 13, 2018, are inapplicable. Finally, the evidence of record shows there are no other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805. Accordingly, resolving all reasonable doubt in favor of the Veteran, her scar, residual of laparoscopy, most nearly approximated a painful scar and entitlement to a 10 percent rating, but no greater is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent disabling for a lumbar spine disability is remanded. The Veteran contends that she is entitled to a rating in excess of 20 percent disabling for her lumbar spine disability. She was most recently afforded a VA authorized examination for the condition in November 2017; however, the Board finds that the examiner failed to offer an adequate opinion concerning the severity of the Veteran’s condition. In Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017), the issue concerned boilerplate language many VA examiners have adopted to avoid rendering an opinion as to additional functional loss expressed in degrees of range of motion during flare-ups and repetitive use over time, to wit: “It is not possible without mere speculation to estimate either loss of [range of motion] or describe loss of function during flares because there is no conceptual or empirical basis for making such a determination without directly observing function under these circumstances.” The Court of Appeals for Veterans Claims (Court) spoke to the nature of the evidence at the disposal of most examiners such that estimates of functional loss during flare-ups and repetitive use over time can be made without resorting to speculation. Noting that “neither the law nor VA practice requires that an examination be conducted during a flare for the functional impairment caused by flares to be taken into account,” the Court stated that “DeLuca and its progeny clearly, albeit implicitly, anticipated that examiners would need to estimate the functional loss that would occur during flares” and repetitive use over time. Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017) (emphasis added). To make such estimate, the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves.” Id. In other words, it is anticipated “that examiners will offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans.” Id. at 35. If the Veteran’s allegations regarding symptoms during flare-ups and repetitive use over time are inconsistent with other probative evidence of record, neither the examiner nor the Board is required to accept it. Id. at 36 n.5. In the present case, the Veteran reported flare-ups and functional loss resulting in increased pain with difficulty walking and limitation of bending, lifting, prolonged standing, and driving. The examiner indicated that the examination was not being conducted during a flare-up and that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during a flare-up. The examiner documented that pain significantly limited functional ability with flare-ups, but stated that it was no possible to provide the degree of additional range of motion loss because the there was no change on examination and lumbar pain limited bending and lifting. The examiner further noted pain on passive range of motion testing and pain on non-weight bearing testing of the back. While the examination report does reflect that the examiner sought information regarding the Veteran’s symptoms during flare-ups, the examiner did not elicit sufficient information regarding the severity, frequency, duration, precipitating and alleviating factors, or the extent of functional impairment during flare-ups or repeated use over time from the Veteran. Additionally, while the examiner indicated that the Veteran exhibited pain on examination, the examiner did not indicate at what point the pain began. Thus, the November 2017 examination is inadequate. See Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (explaining that when an examiner fails to either (1) address functional loss during flare-ups or repetitive use over time, or (2) demarcate whether and at what point during the range of motion testing the Veteran experienced any limitation of motion that was specifically attributable to pain, the examination lacks the detail necessary to permit the assignment of a disability rating). Accordingly, a new examination in necessary on remand which includes adequate information regarding the Veteran’s claimed flare-ups and estimates any functional impact, and which includes information regarding the point at which painful motion begins on range of motion testing. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). 2. Entitlement to a TDIU is remanded. The Veteran contends that she is entitled to a TDIU, as her service-connected disabilities render her unable to obtain and maintain substantially gainful employment. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. A total disability rating may be assigned where the combined rating for the Veteran’s service-connected disabilities is less than total if the disabled Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of defining a disability of either 60 percent or 40 percent under 38 C.F.R. § 4.16(a), the following will be considered one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single incident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple injuries incurred as a prisoner of war. 38 C.F.R. § 4.16(a). In exceptional cases, an extra-schedular rating may be assigned on the basis of a showing of unemployability alone. See 38 C.F.R. § 4.16(b). The record reflects that the Veteran had a combined disability rating of at least 80 percent during the period on appeal, and therefore met the schedular criteria for consideration of a TDIU. However, the record is unclear as to the extent to which her lumbar spine disability contributed to her inability to obtain and maintain substantially gainful employment. Additionally, she also has a pending appeal regarding the severity of her service-connected depressive disorder. In an October 2017 affidavit, the Veteran indicated that she was no longer able to work and last worked at the VA Medical Center in Jackson, Mississippi in 2015. She claimed that she initially worked as a phlebotomist, but was unable to fulfill her duties due to exacerbation of her lumbar spine disability from prolonged standing, bending, twisting, and lifting. She further indicated that she became progressively affected by symptoms of depression and anxiety, with a fear that someone sought to harm her. The record reflects that she sought Social Security Disability based in part on difficulties with work due to anxiety and depression. Accordingly, the record indicates that the Veteran claims that she is unable to obtain and maintain substantially gainful employment primarily due to her lumbar spine disability and psychiatric disorder. As she currently has claims related to both of these conditions pending on appeal, the Board finds that remand of the issue of entitlement to a TDIU is also necessary as the issue is intertwined with those claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. After any newly obtained evidence has been associated with the claims file, schedule the Veteran for an examination with an appropriately qualified examiner to determine the nature and severity of her service-connected lumbar spine disability. The entire claims file, including a copy of this remand, must be made available to the examiner and the examination report must reflect that such review was completed. The examiner should ask the Veteran to provide information regarding his flare-ups and functional loss with repeated use over time, such as the severity, frequency, duration, precipitating and alleviating factors, or the extent of functional impairment. To comply with the Court’s decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flare-ups or repetitive use over time, and if so, the examiner must estimate the severity of any additional limitation of motion during flare-ups or repetitive use over time with sufficient detail that would allow the Board to determine the severity of the Veteran’s lumbar spine disability under such conditions. The examiner should also indicate at what point pain begins during range of motion testing. Testing should be accomplished in weight bearing and non-weight bearing and active and passive motion. The examiner must provide a comprehensive rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Ferguson, 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.