Citation Nr: 21002427 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-52 397 DATE: January 13, 2021 ORDER A compensable rating for a right foot and right ankle scar is granted. Compensation under 38 U.S.C. § 1151 for right foot disorders, caused by VA medical treatment, is denied. The reduction of the 10 percent disability rating to 0 percent for the service-connected back scar, effective from March 1, 2017, was not proper; restoration of the 10 percent of the disability rating for the back scar from March 1, 2017 is granted. Entitlement to total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s right foot scar was small; a scar that was deep and nonlinear with a total area of at least 6 sq. in. (39 sq. cm) but less than 12 sq. in. (77 sq. cm), linear with a total area of 144 square inches (929 sq. cm.) or greater was not shown. 2. The Veteran’s right foot and right ankle scar is painful, and/or unstable. 3. The Veteran does not have an additional disability related to his right foot disorder for purposes of 38 U.S.C. § 1151. 4. At the time that the reduction in the disability rating was effectuated, the service-connected back scar had not undergone sustained improvement, and was still painful. 5. The Veteran’s service-connected disabilities prevented him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for a right foot and right ankle scar have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.14, 4.118, DCs 7802, 7805. 2. The criteria for establishing entitlement to benefits under 38 U.S.C. § 1151 for a right foot disorder, caused by VA medical treatment, are not met. 38 U.S.C. §§ 1151; 38 C.F.R. §§ 3.102, 3.361. 3. The reduction of the disability rating for the service-connected back scar from 10 percent to 0 percent was not proper, and the 10 percent disability rating is restored from March 1, 2017. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.118, DC 7804. 4. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active duty service from June 1977 to June 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal from March and May 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an increased rating for scars on right ankle and foot The Veteran is seeking an increased rating for his service-connected right foot scar. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s right foot scar that has been assigned a noncompensable rating under DC 38 C.F.R. § 4.118, DC 7805. The Board observes that 38 C.F.R. § 4.118 was recently amended, effective August 2018. However, the Board notes that the newly enacted amendments do not materially change the rating criteria under the relevant diagnostic codes for the Veteran's herein claims. 38 C.F.R. § 4.118. With respect to the Veteran’s right foot scar, under DCs 7801-7804, a compensable rating is warranted for a scar: • With underlying soft tissue damage and an area or areas of at least 12 sq. in. (77 sq. cm) but less than 72 sq. in. (465 sq. cm) (10 percent under DC 7801); • With no underlying soft tissue damage and an area or areas of 144 square inches (929 sq. cm.) or greater (10 percent under DC 7802); • One or two scars that are unstable or painful (10 percent under DC 7804); or, • One or two scars that are both unstable and painful (10 percent under DC 7804, Note (2)). 38 C.F.R. § 4.118. After a review of the evidence of record, a compensable rating for the Veteran’s right foot and ankle scars are warranted for painful scars under DC 7804. Specifically, in a May 2017 VA examination, the Veteran reported swelling associated with his scars. On examination, the examiner determined that both of his scars were less than 10 cm long and less than 0.3 cm wide. Moreover, there was no evidence of underlying tissue damage, skin breakdowns, and/or instability. However, in an August 2017 Notice of Disagreement, the Veteran reported pain associated with scars. Additionally, the Veteran’s medical treatment records do not reflect evidence of a larger scar size or instability that would warrant a higher rating. As such, a compensable rating of ten percent, but no more, is for application. The Board has also considered whether a higher rating is warranted under DC 7805 for “other” scars, which are to be rated based on limitation of function of the part affected. However, the May 2017 VA examiner did not report any evidence of nerve or muscle damage associated with the scars. Further, there is no evidence of other disabling effects that would warrant a higher and/or additional rating. The Veteran does report disabling limitations related to his foot such as inability to walk or put on shoes, but this does not appear to be related to the scar, but other foot disorders and related surgical procedures. Therefore, a rating under DC 7805, or any other relevant Diagnostic Code is not for application. In considering the appropriate disability ratings, the Board has also considered the Veteran’s statements that his scar is worse than the rating he currently receives. 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 evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms such as pain, because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his scar disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s right foot and ankle scars have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. 2. Entitlement to compensation benefits under 38 U.S.C. § 1151 for a right foot disorder The Veteran seeks compensation under 38 U.S.C. § 1151 for a right foot disorder, specifically the development a right foot neuroma after surgery. Under the relevant statutes and regulations, for all claims received by VA after October 1, 1997, compensation shall be awarded for a post-service “qualifying additional disability” in the same manner as it were service connected. For VA purposes, a “qualifying additional disability” is a disability that was: (1) not the result of the Veteran's willful misconduct; (2) caused by hospital care, medical or surgical treatment, or an examination furnished the Veteran under any law administered by the Secretary of Veterans Affairs; and (3) the proximate cause of the disability or death was either (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151. With regard to the second element, merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1). Further, hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. Id.; 38 C.F.R. § 3.361(c)(2). Regarding the third element, as is relevant here, to establish proximate cause of a Veteran’s additional disability or death based upon the event not being reasonably foreseeable, the event need not be completely unforeseeable or unimaginable. Instead, it must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. 38 C.F.R. § 3.361(d)(2). After a thorough review of the evidence of record, the Board finds that compensation under 38 U.S.C. § 1151 is not warranted for the disorders on appeal. As an initial matter, the Board finds that the Veteran does have an additional disability to satisfy the first and second element contained in 38 U.S.C. § 1151 for his claimed disorders, specifically his right foot neuroma that was secondary to a right foot surgical procedure. Thus, while the first and second elements are conceded, the third element is not present. There is no evidence to suggest that his right foot neuroma was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or an event not reasonably foreseeable. Specifically, the May 2017 VA examiner opined that his right foot neuroma disorder was at least as likely as not caused by his right ankle disorder, which is proof that this disorder is foreseeable by a medical professional. As such while service connection was granted, it was not due to the criteria under 38 U.S.C. § 1151. In considering this claim, the Board has also considered the statements made by the Veteran indicating that his disorder was caused by negligence under 38 U.S.C. § 1151. Indeed, there are occasions where the Veteran is competent to testify about the nature and etiology of a given disorder. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). However, the Veteran is not competent to provide testimony regarding the diagnosis and etiologies of symptoms and disorders. Because his disorders are not diagnosed by unique and readily identifiable features, the unsubstantiated statements regarding the claimed etiology of the Veteran’s symptoms and disorders are found to lack competency. Therefore, in light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for compensation under 38 U.S.C. § 1151, and there is no doubt to be otherwise resolved. As such, the appeal is denied. 3. Entitlement to rating reduction for a back scar In March 2017, the RO reduced the 10 percent rating for the service-connected back scar to 0 percent effective from March 1, 2017. Because the rating decision did not affect the overall disability rating, the due process protections of 38 C.F.R. § 3.105(e) do not apply. VAOPGCPREC 71-91; Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007). At the time that the rating reduction became effective, March 1, 2017, the 10 percent rating for the service-connected back scar had been continuously in effect for less than five years. As such, the provisions of 38 C.F.R. § 3.344(a) and (b) are not applicable. A rating reduction is not proper unless the Veteran’s disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Veteran need not demonstrate that retention of the higher rating is warranted; rather, it must be shown by a preponderance of the evidence that the reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). The question of whether a disability has improved involves consideration of the applicable rating criteria. At the time of the rating reduction, the service-connected back scar had been rated under the criteria found at 38 C.F.R. § 4.118, DC 7804 for painful or unstable scars. Under DC 7804, a 10 percent rating is warranted for one or two scars that are painful or unstable. A 20 percent rating is warranted for three or four scars that are painful or unstable. A 30 percent rating is warranted for five or more scars that are painful or unstable. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118. In this case, the Board finds that the weight of the evidence did not demonstrate actual improvement of the service-connected back scar under the ordinary conditions of life at the time of the rating reduction; therefore, the rating reduction was not proper, and the criteria for restoration of a 10 percent rating for the back scar, effective from March 1, 2017, are met. Historically, in September 2014, the RO granted service connection for a painful back scar with a 10 percent schedular rating effective from January 28, 2014 based upon the September 2014 VA examination findings noting one surgical scar of the back scar measuring approximately 10 centimeters with tenderness although well healed. Because the evidence showed one painful surgical scar on his back, the RO determined that a 10 percent schedular rating under DC 7804 was warranted. At the time of the March 2017 rating reduction decision, the March 2017 VA examiner wrote that the service-connected back scar was nontender and not symptomatic in any way. Because the disability picture as shown by the March 2017 VA examination findings indicated that the criteria for a 10 percent rating under DC 7804 were no longer met, the RO awarded a noncompensable percent rating under DC 7804; however, this was the only evidence then of record suggesting that the back scar had improved. Nevertheless, in the August 2017 Notice of Disagreement, the Veteran disagreed that the scar was nontender and explained that all of his scars are painful. In consideration thereof, the Board finds that the preponderance of the evidence does not demonstrate that the service-connected back underwent actual improvement under the ordinary conditions of life at the time of the March 2017 rating reduction decision. Because the burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence, and the evidence of record in this case does not show actual improvement in the service-connected back scar at the time of the March 2017 rating reduction, the Board finds that the reduction of the 10 percent rating to 0 percent rating effective from March 1, 2017 was not proper; therefore, restoration of the 10 percent disability rating under DC 7804 is warranted from March 1, 2017. 4. Entitlement to TDIU The Veteran has asserted that he has been unable to work because of his service-connected disabilities. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of “individual unemployability,” or when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify TDIU. 38 C.F.R. §§ 3.341(a), 4.19; see Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). In this case, the Board determines that TDIU should be granted. As an initial matter, the Board notes that the Veteran meets the schedular requirements for TDIU throughout the period on appeal. The Veteran is service-connected for the following: left sciatic nerve radiculopathy disorder (40 percent), degenerative arthritis of the lumbar spine (40 percent), right sciatic nerve radiculopathy disorder (20 percent), right ankle osteoarthritis disorder (20 percent), right hip disorder (10 percent), right knee strain disorder (10 percent), left hip strain disorder (10 percent), left knee strain (10 percent), right ganglion wrist disorder (10 percent), left ankle strain disorder (10 percent), right foot degenerative joint disease disorder (10 percent), and has noncompensable ratings for right thigh disorders, left thigh disorders, left thigh scar, back scar, and scars on right foot and right ankle. Therefore, the Veteran has an overall combined disability rating of 90 percent. Next, the medical evidence, in conjunction with the Veteran’s credible statements, sufficiently demonstrates that he is unable to obtain and retain substantial gainful employment. As a preliminary matter, the Board notes that after service, the Veteran worked for several years in likely sedentary positions and has obtained graduate education post his undergraduate studies. In making this determination, the Board places significant probative value on the May 2017 VA examination that stated that the Veteran would require regular use of wheelchair and crutches. Additionally, the examiner noted that the Veteran would experience pain even sitting. Furthermore, in April 2017 the Veteran’s private medical provider stated that the Veteran’s condition is unlikely to improve and would require assistive devices for the rest of his life. The evidence reflects that the Veteran’s service-connected disorders affects his ability to even sit, which puts the likelihood of obtaining sedentary gainful employment in serious question. Therefore, the evidence in this case places the question of substantially gainful employment in great doubt, and the Board has resolved all doubt in the Veteran’s favor. Accordingly, entitlement to TDIU is granted from the date the Veteran is able to show he was no longer working. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Billinger, Associate Counsel