Citation Nr: 21002677 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 20-10 040 DATE: January 14, 2021 ORDER A compensable disability rating for scar, right foot, secondary to shell fragment wound (right foot scar), is denied. A compensable disability rating for scar, lower left ankle (left ankle scar) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Right foot and left ankle scars are not disfiguring, deep, nonlinear, unstable, or painful. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for right foot scar are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.10, 4.118, DC 7805. 2. The criteria for a compensable rating for left ankle scar are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.10, 4.118, DC 7805. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1964 to March 1967, including foreign service. For his meritorious service, he was awarded (among other decorations) the Vietnam Service Medal. These matters come before the Board of Veteran’s Appeals (Board) on appeal from a November 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In pertinent part, the November 2016 rating decision continued the noncompensable evaluations assigned to the Veteran’s right foot and left ankle scars. In a statement attached to his May 2017 Notice of Disagreement (NOD), the Veteran offered testimony relevant to both scars. In developing these matters further, a January 2020 rating decision was issued which separately awarded service connection for the following disabilities: (1) Residuals of shrapnel wound, left ankle, muscle group XII; (2) left ankle, residuals of shrapnel wound; and (3) residual of shrapnel wound, right foot. A corresponding January 2020 Statement of the Case (SOC) addressed only the Veteran’s entitlement to compensable ratings for his right foot and left ankle scars. His March 2020 VA Form 9 signaled his intent to appeal both issues as identified on the SOC. In December 2020, the Veteran’s representative submitted an Informal Hearing Presentation (IHP) which identified the matters on appeal as entitlement to increased ratings for “scar, right foot;” “residual of shrapnel wound, right foot;” and “residuals of shrapnel wound, left ankle.” The language of this IHP is exceptionally misleading, as the only matters currently on appeal are the Veteran’s entitlement to compensable ratings for his right foot and left ankle scars. Critically, the Veteran has not submitted an NOD as to any of the awards contained in the January 2020 rating decision, such that any potentially related claims are not ripe for adjudication by the Board. Thus, the Board declines to assert jurisdiction over any appeals stemming from the January 2020 rating decision, and will only address the Veteran’s entitlement to compensable ratings for his right foot and left ankle scars herein. Additionally, the record is in controversy as to the Veteran’s current representative. Initially, the Veteran was represented by Vietnam Veterans of America (VVA), as identified in a June 2016 VA Form 21-22. In February 2017, the Veteran submitted a new VA Form 21-22, identifying The American Legion as his representative. However, in September 2017, the Veteran submitted a copy of his June 2016 form authorizing VVA as his representative. Thereafter, VVA was identified as the Veteran’s representative throughout all VA systems; was copied on all communications regarding the Veteran’s appeal; and continued to submit evidence and argument on his behalf. In light of the Veteran’s September 2017 communication and subsequent work with only VVA, said organization is identified as his current representative. However, the Veteran is advised that he may submit a new VA Form 21-22, with a current date, should he prefer to avoid future confusion on this matter. Finally, the Board finds that a TDIU claim has been reasonably raised by the record and asserts jurisdiction over the matter at this time. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also VA examinations dated December 2016 and December 2019. Increased Ratings Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436. 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. Where there is a question as to which of two 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. Here, both of the Veteran’s disabilities have been properly rated in accordance with DC 7805 during the period on appeal. As these appeals require similar analyses, they will be addressed simultaneously herein. Scars are rated under 38 C.F.R. § 4.118, DCs 7800-7805. Importantly, the regulations pertaining to scars were revised, effective August 13, 2018. These new regulations apply to claims that were pending on August 13, 2018 (such as here), if the new regulations are more favorable to the veteran’s case. As an initial matter, neither the old nor new versions of DCs 7800-7802 are for application to this appeal, as based upon the nature of the two scars at issue. See, e.g., October 2016 VA examination. Rather, the Veteran argues that compensable ratings are warranted under DC 7804 for scars that are unstable or painful. In this respect, DCs 7804 and 7805 were unaffected by the 2018 revisions. 1. Entitlement to a compensable disability rating for right foot scar is denied. 2. Entitlement to a compensable disability rating for left ankle scar is denied. As set forth above, the Veteran is seeking compensable ratings for his right foot and left ankle scars. Both scars are currently evaluated as noncompensable under DC 7805. This DC applies to limitation of function of the affected part and provides: “Evaluate any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code.” See 38 C.F.R. § 4.118. Thus, the Board will consider whether compensable ratings are warranted under DC 7804, which establishes a 10 percent rating upon evidence of the following: • One or two scars that are unstable or painful. Any disabling effects not considered by the DCs pertaining to scars should be rated under an appropriate DC. As to the evidence, VA treatment records reflect reports of foot pain. In August 2014, the Veteran was seen in podiatry for right foot pain. Imaging was obtained for bilateral feet and ankles due to ankle instability. The impression noted metallic debris in the right foot and left ankle and mild degenerative changes in both feet. For reported left dorsal pain, foot imaging was completed. The impression from the imaging noted no acute osseous process, no acute fracture, dislocation, or focal bone destruction. Mild degenerative changes were present throughout the foot and there were some irregular focal densities and a small enthesophyte at the insertion of the achilles tendon. Follow-up was completed in September 2014, and the VA physician concluded that the Veteran had retained shrapnel pieces in the left ankle and right foot. Treatment options were discussed, including custom orthotics and potential surgery for removal of shrapnel from the right foot. October 2015 VA treatment records note the left foot has a well-healed, faint surgical scar without erythema or nodularity. January 2016 VA treatment records note that the Veteran was seen for foot pain. At that time, the VA examiner noted the Veteran had chronic bilateral foot neuropathy and generalized pain to right foot and left ankle due to the presence of shrapnel. In February 2016, the Veteran was seen for complaints of increasing left foot pain. The VA practitioner noted that there were no contributory deformities observed and the Veteran complained of pain with palpation of left metatarsal area, with no swelling or erythema noted. The Veteran noted sharp, shooting pain and tingling pain with palpation. The physician’s assessment was that the left metatarsalgia pain was related to peripheral nerve disease, arthritis, and remaining shrapnel. The VA practitioner discussed the possible etiologies of the foot pain and noted their belief that neuropathy was the main cause of the pain. X-rays of left foot were ordered. The Veteran reported pain along the plantar and dorsal area. April 2017 VA podiatry treatment records reflect complaints of right foot pain. The VA podiatrist noted no deformities were seen; the scar was noted to be present from plantar right center midfoot with complaints of pain along plantar and dorsal area with a soft mass near right plantar. The VA podiatrist ordered imaging and new orthotics. The Veteran then had an MRI of the right foot in April 2017. The impression was noted to be limited due to the metallic artifacts from foreign bodies, but no abnormal enhancement was seen, although degenerative changes were noted. The Veteran also underwent VA examination for scars in October 2016. The VA examiner concluded the Veteran’s right foot and left ankle scars were not unstable and did not have frequent loss of covering of skin over the scar. The VA examiner reported the Veteran’s right foot scar is located on the dorsum of the foot and is a 2 centimeter linear scar. The Veteran’s left ankle scar was reported to be at the lateral malleolus, linear, and measured 2 centimeters in length. The VA examiner noted the scars were not tender to palpation. The VA examiner also concluded the scars to not impact the Veteran’s ability to work. The Veteran underwent subsequent VA examinations in December 2019 for ankle, foot, and muscle injury conditions. Collectively, these examiners also reported on the Veteran’s scars. Specifically, the examination reports reflect that the Veteran’s left ankle scar was no longer visible. Further, the Veteran’s scars were not described as painful or unstable, did not have a total area equal or greater than 39 square centimeters, and were not located on the head, face, or neck. Rather, the right foot scar was located on the plantar aspect of the foot and measured 5 centimeters long by 0.2 centimeters wide. Accordingly, the scars were described as “minimal.” The claims file also contains significant lay testimony for consideration. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Specifically, the Veteran has reported significant foot pain, such that he is unable to stand comfortably for long periods of time, loses balance, and requires the use of a cane. Nonetheless, the Veteran had difficulty walking on uneven surfaces and using steps, and his reported instability has resulted in several falls. In June 2020, the Veteran’s wife also submitted a statement wherein she noted her expertise as a board-certified nurse with a specialty in adult health nursing. She discussed a hospital report which noted that the Veteran’s right foot and left ankle scars were tender to palpation, as supported by VA treatment records reflecting the shrapnel and pain on palpation at the dorsal and plantar area of the foot. She further stated she has observed increased pain and gait disturbance in the Veteran throughout their 45 year marriage. She reported his ability to stand has worsened due to pain, he has had loss of balance that resulted in falls, and the pain impacted his sleep. She also stated the pain in the Veteran’s foot affected his ability to concentrate, engage in social activities, and work as an educator and in the community. As a result, he has increased irritability and social withdrawal. Thus, in the December 2020 IHP, the Veteran’s representative requested an increased evaluation for his right foot scar under DC 7804 for a painful scar that is tender to palpation. Upon consideration of the above, compensable evaluations are not warranted for the Veteran’s right foot or left ankle scars. In this respect, the Board does not refute that the Veteran experiences significant pain and instability of the bilateral lower extremities, as documented throughout medical records and corroborated by certain lay testimony. However, it is not found that the Veteran’s pain or instability are attributable to his right foot or left ankle scars. Rather, the Veteran’s treatment providers have consistently indicated that his scars are neither painful nor unstable, to such an extent that both were recently classified as “minimal” in nature. Instead, his reported symptoms have continually been attributed to a series of unrelated disabilities, including various shrapnel wounds, radiculopathy of the bilateral lower extremities, and multiple muscle group injuries. As the Veteran is currently in receipt of compensable ratings for the majority of these disabilities, he is already being compensated for the full scope of his reported symptoms, which are not related to the disabilities currently at issue. In offering this finding, the Board does not disregard the spouse’s testimony as to the Veteran’s symptoms and her representation as to her medical expertise. However, the June 2020 statement speaks to the Veteran’s history of foot pain only; at no time does the Veteran’s spouse definitively identify his right foot or left ankle scars as the source of his symptoms. Thus, this statement does not speak to such a history of scar pain as to warrant compensable ratings on this basis. The Board also acknowledges the Veteran’s contention that higher ratings are warranted as based upon his disability pictures. While he is competent to report symptoms capable of lay observation, he is not competent to identify a specific level of disability according to the applicable DCs or to identify the source of his reported pain and instability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno, 6 Vet. App. at 470 (1994). Instead, greater probative value is offered to the medical evidence in assessing the severity of the Veteran’s disabilities, as the examiners possess the requisite expertise to render opinions regarding the degree of impairment caused by the Veteran’s disabilities and had sufficient facts and data on which to base their conclusions. In this respect, the Board finds that the medical evidence supports the determinations offered herein. In sum, the Veteran’s right foot and left ankle scars are neither painful nor unstable. Although the Veteran has reported pain and instability of the bilateral lower extremities, these symptoms are attributable to several unrelated but service-connected disabilities, such that he is already being compensated for the disabling effects thereof. In instances where the schedule does not provide a zero percent evaluation for a diagnostic code—as with DC 7805—a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. As set forth above, the Veteran does not present with any compensable symptoms caused by the disabilities at issue or meet the criteria for a compensable evaluation per DCs 7800 through 7804. Accordingly, he has properly been assigned noncompensable ratings in this case, and there is no basis upon which to grant these appeals. The appeals are hereby denied. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 3. Entitlement to a TDIU is remanded. As discussed above, a TDIU claim has been raised by the record. However, further development is necessary prior to the adjudication of this appeal. Of note, the Veteran has not yet been provided with VA Form 21-8940, nor has any development been undertaken with respect to his employment history. Such action is now required. [CONTINUED ON NEXT PAGE] The matter is REMANDED for the following actions: 1. Request that the Veteran complete a VA Form 21-8940. Obtain a statement from the Veteran regarding his work history, to include a statement as to his current employment status. All actions to obtain the requested information should be documented in the claims file. 2. Thereafter, complete any development necessary regarding the claim of entitlement to a TDIU, to include the provision of VA Form 21-4192 to his last identified employers. Kate E. Kovarovic Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Mouzakis, 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.