Citation Nr: 21002543 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 16-16 650 DATE: January 14, 2021 ORDER Entitlement to a rating greater than 10 percent for left thigh scar, residuals of a shrapnel wound of the left thigh, muscle group XV, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) based on service-connected disabilities prior to December 9, 2016 is denied. FINDINGS OF FACT 1. The Veteran has one scar on the left thigh that is painful. 2. The Veteran had full time employment prior to December 9, 2016. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for the left thigh scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. 2. The criteria for TDIU prior to December 9, 2016 have not been met. 38 U.S.C. §§ 5110; 38 C.F.R. §§ 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1998 to May 2008. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a hearing on March 4, 2019 before the undersigned Veterans’ Law Judge. A transcript of the hearing has been associated with the claims file. In March 2019, the Board remanded the issue of entitlement to a compensable rating for residuals of a shrapnel wound of the left thigh, other than injuries to muscle group XV, to include left thigh scar. The Board ordered that a determination be made as to whether the Veteran’s reported symptoms, such as radiating pain and numbness, are related to his service-connected left thigh scar or whether his symptoms constitute a residual of the shrapnel wound that is subject to a separate rating. The Board also remanded the issue of entitlement to a TDIU. In September 2019, the RO granted a separate 20 percent rating for hyperalgesia, left thigh femoral nerve, as a residual of the shrapnel wound to the left thigh, muscle group XV. The Veteran did not disagree with the assigned rating for hyperalgesia and since it is not a residual of the left thigh scar, the issue is not before the Board for consideration. In an August 2020 rating decision, the RO granted a 10 percent rating for the entire pendency of the claim for the left thigh scar. Since higher ratings may be assigned for the scar, the matter has returned to the Board for adjudication. In the August 2020 rating decision, the RO also granted a TDIU from December 9, 2016. Since the Veteran was not awarded a TDIU for the entire pendency of the claim, the matter also returns to the Board for adjudication. 1. Entitlement to a rating greater than 10 percent for left thigh scar, residuals of a shrapnel wound of the left thigh, muscle group XV, is denied. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. Part IV. If two evaluations are potentially applicable, the higher evaluation 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 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 above all, coordination of rating with impairment of function will be expected in all cases. 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, as well as the entire history of the veteran’s disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran seeks a rating greater than 10 percent for his left thigh scar, which has been rated under 38 C.F.R. § 4.118, Diagnostic Code 7804 for unstable or painful scars. VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7804 was not changed by the August 13, 2018, amendments. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent rating. Three or four scars that are unstable or painful warrant a 20 percent rating. Five or more scars that are unstable or painful warrant a 30 percent rating. 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. Note 2 provides that if one or more scars are both unstable and painful, then add 10 percent to the evaluation that is based on the total number or unstable or painful scars. Id. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under Diagnostic Code 7804 because the Veteran has only one painful scar which is not unstable. The Veteran had VA examinations in July 2015. The Disability Benefits Questionnaire (DBQ) for the hip and thigh note a scar measuring 14 cm by 0.5 cm located on the left lower medial thigh. The scar was not painful or unstable and did not exceed 39 square cm (6 square inches). The Veteran had VA examinations in April 2019. The DBQ for muscle injuries notes that the Veteran’s residual scar was painful and made it difficult for the Veteran to dress. In the scars DBQ, the examiner noted one healed scar on the left thigh. The scar was painful but not unstable. There was no underlying tissue damage. The scar measured 12.5 cm by 0.1 cm. The total area was 1.25 cm squared. The pain made it difficult for the Veteran to dress. The Board reviewed the VA treatment records; however, none indicate that the Veteran’s scar was both painful and unstable. During the Veteran’s March 2019 hearing, he testified that his scar was painful with radiating pain, especially when sitting. He stated that the pain interfered with marital relations due to pain. Based on the evidence, it does not show that the Veteran’s left thigh scar is both painful and unstable and as such, a higher rating under 38 C.F.R. § 4.118, Diagnostic Code 7804, is not warranted. The Board has considered the other Diagnostic Codes pertaining to scars. However, the Veteran’s left thigh 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 effects not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805. As noted in the introduction, the Veteran raised the issue of nerve related pain such as numbness and radiating pain, and the RO found that the Veteran had a femoral nerve disability secondary to the muscle injury. The symptoms were not due to the scar. The Board acknowledges that the Veteran believes that the disability has been more severe than the assigned rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include lay reports of pain, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and records do not show, that the Veteran’s scar is both painful and unstable or that he has more than one scar. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a disability rating in excess of 10 percent for left thigh scar, residuals of a shrapnel wound of the left thigh, muscle group XV. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a TDIU based on service-connected disabilities prior to December 9, 2016 is denied. The Veteran asserts that he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As “sedentary” is defined as “[r]equiring or marked by much sitting ” the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER’S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In this case, the Veteran has been granted a TDIU from December 9, 2016. The question remains whether a TDIU is warranted prior to that date. Notably, on his application for a TDIU, VA Form 21-8940, the Veteran indicated that his disabilities first interfered with his ability to work on November 23, 2016. He stated that he became unemployable due to his service-connected disabilities as of March 28, 2017. On the employment form from the Veteran’s employer, the employer stated that the Veteran last worked on December 8, 2016. His last paycheck was dated in April 2017. Accordingly, December 9, 2016, is the earliest date that a TDIU can be awarded in this instance as the Veteran was employed full time prior to December 9, 2016. There is no evidence that he was only marginally employed prior to this date. The appeal is denied. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda G. Alderman 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.