Citation Nr: 21004477 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 08-35 278 DATE: January 27, 2021 ORDER A compensable rating for incisional abdominal scars associated with the service-connected gastroesophageal reflux disease (GERD) prior to January 3, 2013, is denied. A 20 percent rating, but no higher, for painful surgical scars associated with the service-connected GERD from January 3, 2013, to April 30, 2016, is granted. A rating higher than 20 percent for painful surgical scars associated with the service-connected GERD, since May 1, 2016, is denied. A total disability rating based on individual unemployability (TDIU), prior to April 7, 2010, is denied. FINDINGS OF FACT 1. Prior to January 3, 2013, the Veteran’s incisional abdominal scars associated with the service-connected GERD were not painful, unstable, equal to or greater than 6 square inches (39 square centimeters) or had any other disabling effects. 2. Since January 3, 2013, the Veteran’s incisional abdominal scars associated with the service-connected GERD manifested by three painful scars, which were not unstable, equal to or greater than 6 square inches (39 square centimeters), or had any other disabling effects. 3. Prior to April 7, 2010, the Veteran’s service-connected disabilities did not preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for incisional abdominal scars associated with the service-connected GERD, prior to January 3, 2013, are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.118, Diagnostic Codes (DC) 7800-7805. 2. The criteria for a 20 percent rating, but no higher, for painful surgical scars associated with the service-connected GERD, from January 3, 2013, to April 30, 2016, are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.118, DC 7804. 3. The criteria for a rating higher than 20 percent for painful surgical scars associated with the service-connected GERD, since May 1, 2016, are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.118, DC 7804. 4. The criteria for a TDIU, prior to April 7, 2010, are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1993 to April 1998 and November 1998 to April 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2010, the Veteran presented testimony before the Board. In February 2010, March 2011, December 2013, August 2016, May 2018, and May 2020, the Board remanded the appeal for further development. Specifically, in the most recent remand, in May 2020, the appeal was remanded to afford the Veteran a VA examination to assess the severity of his service-connected scars. In October 2020, the Veteran was afforded a VA scars that evaluated the current severity of his scars. The October 2020 VA scars examination provided sufficient details to adequately decide the appeal. For the reasons stated above, the agency of original jurisdiction (AOJ) complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). In an October 2020 rating decision, the RO granted an increased rating of 20 percent for painful surgical scars, effective May 1, 2016. The Veteran has not expressed satisfaction with the increased disability rating; thus, this issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993). With respect to the claim of a TDIU prior to April 7, 2010, in May 2020, the Board remanded the issue of a TDIU prior to February 11, 2014, for AOJ consideration after implementing the Board’s grant of a higher rating for the service-connected low back disability. In an October 2020 rating decision, the RO granted an effective date of April 7, 2010, for a TDIU, which was the date that the Veteran met the schedular requirements for a TDIU. 38 C.F.R. § 4.16(a). Although the Veteran was awarded an effective date of April 7, 2010, for a TDIU, his TDIU claim was raised as part and parcel of his initial rating claims for GERD and a low back disability, which were previously on appeal and have been resolved. The initial rating claims for GERD and the low back disability were received by VA on March 5, 2007. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, a TDIU, prior to April 7, 2010, is currently on appeal. Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (confirming that when the issue of entitlement to a TDIU is raised as part and parcel of a rating claim, it should be treated separately from a formal claim for TDIU in all aspects of the appeal). Higher Initial Ratings 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 Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Higher Ratings for Scars Associated with the Service-Connected GERD The Veteran’s incisional abdominal scars associated with the service-connected GERD, is currently rated as noncompensable under 38 C.F.R. § 4.118, DC 7805, effective May 7, 2010. The Veteran’s painful surgical scars associated with the service-connected GERD is currently rated as 20 percent disabling under 38 C.F.R. § 4.118, DC 7804, effective May 1, 2016. Under DC 7805, scars are to be rated under DCs 7800, 7801, 7802, and 7804. DCs 7800, 7801, 7802 are not applicable in this case. For example, the Veteran’s scars associated with his GERD noted during the VA examinations were located on his abdomen and, thus, not located on his head, face, or neck to warrant consideration under DC 7800. See, e.g., VA examination report (October 2020). Moreover, the VA examination reports show that the Veteran’s scars associated with his GERD were not nonlinear, deep, or superficial and not equal to or greater than 39 square centimeters (cm) to warrant consideration under DCs 7801 or 7802. Id. DC 7804 provides a 10 percent rating for one or two scars that are unstable and painful on examination. A 20 percent rating applies to three or four scars that are unstable or painful. A 30 percent rating is for five or more scars that are unstable or painful. Note (1) to DC 7804 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 that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under this DC when applicable. 38 C.F.R. § 4.118. Recently, VA amended the criteria for rating the skin. See Schedule for Rating Disabilities; Skin, 83 Fed. Reg. 32592 (July 13, 2018). DC 7804 was not included in these revisions and DC 7805 was revised only to take out the reference to linear scars. These revisions do not affect the instant case. In November 2010 and July 2011 VA examinations, the VA examiners indicated that the Veteran had an abdominal scar associated with his GERD that was healed and not painful, unstable, or equal to or greater than 39 square cm. During a January 2013 VA examination, the examiner indicated that the Veteran had an abdominal scar associated with his GERD that was not greater than 39 square cm. The examiner indicated that there was tenderness to palpation of the scar. A January 2015 VA examination report reflects that the examiner identified two scars. The examiner indicated that the scars were healed and that they were not unstable or equal to or greater than 39 square cm. In a June 2016 examination, the examiner noted numerous scars from an abdominal incision. The examiner indicated that the Veteran had 5 or more painful scars and that there were unstable. In an April 2019 VA esophageal examination report, the examiner indicated that the Veteran had multiple abdominal surgeries. The examiner answered “no” when asked if any of the scars were painful or unstable and indicated that they were not equal to or greater than 39 square cm. As shown above, there has been discrepancies in the VA examination reports as to how many scars the Veteran had associated with his GERD. For example, the November 2010 and July 2011 VA examiners indicated that the Veteran had one scar associated with his GERD, then in June 2016, the VA examiner indicated that the Veteran had 5 more scars. Therefore, in May 2020, the Board remanded the appeal to obtain a VA examination to assess the severity and quantity of the Veteran’s scars associated with the service-connected GERD. In an October 2020 scars and disfigurement examination, the VA examiner indicated that he reviewed the Veteran’s claims file, physically examined him, and found that the Veteran had three abdominal incisional scars located on his anterior trunk related to his service-connected GERD that had existed since 1990. The examiner explained that in 1990, the Veteran underwent a lap-nissen surgery, and had a repair in the 2000s. The examiner indicated that the Veteran had three painful scars, related to his surgeries, that were not unstable, or greater than 39 square cm. Specifically, the examiner identified the three anterior trunk scars; the first scar was located on the Veteran’s midline abdomen that measured 37 cm by .5 cm; the second scar was located on the right upper abdomen that measured 3.5 cm by .3 cm, and the third scar was located on the right upper abdomen that measured 3.5 cm by .3 cm. The examiner indicated that the scars did not result in limitation of function, to include limitation of motion, and that there were no other signs or symptoms associated with the scars. The examiner indicated that the scars did not have a total area equal to or greater than 39 square cm. The examiner found that the Veteran’s scars did not impact his ability to work. The examiner concluded that the “new diagnosis is a correction of the previous diagnosis.” The examiner explained that the Veteran had “always” multiple scars, and the diagnosis was corrected and that the abdomen scars were fully documented and secondary to his procedures that were performed during his military service. The Board finds that the October 2020 VA examination report is the most probative examination report as to the quantity of the Veteran’s scar. To this extent, the October 2020 examiner found that the Veteran had three abdominal incisional scars located on his anterior trunk since 1990 that were not equal to or greater than 39 square cm. The examiner explained his reasons for his findings and indicated how many scars the Veteran had throughout the appeal period. The examiner further specifically identified all the three scars and provided their measurements. Accordingly, for the above reasons, the October 2020 examination is the most probative as to how many scars the Veteran had due to his GERD. Therefore, as the October 2020 examiner explained that the Veteran had three abdominal incisional scars located on his anterior trunk since 1990 that were not equal to or greater than 39 square cm, the Board finds that the Veteran had three abdominal incisional scars located on his anterior trunk that were not equal to or greater than 39 square cm throughout the appeal period. The Board notes that the above finding is the most favorable to the Veteran, as the other VA examinations found that the Veteran had less than three scars, other than the June 2016 examination that indicated that the Veteran had 5 or more scars that were not painful or unstable. 1. A compensable rating for incisional abdominal scars associated with GERD prior to January 3, 2013. For the following reasons, prior to January 3, 2013, a compensable rating for incisional abdominal scars associated with GERD is not warranted. Prior to January 3, 2013, the Veteran had three abdominal incisional scars located on his anterior trunk that were not painful, unstable, equal to or greater than 39 square cm. Therefore, the Veteran’s incisional abdominal scars have not met or approximated the criteria for a compensable rating or separate rating under DC 7804. 2. A 20 percent rating for painful surgical scars associated with GERD from January 3, 2013, to April 30, 2016. For the following reasons, a 20 percent rating for painful surgical scar associated with GERD from January 3, 2013, to April 30, 2016, is warranted. During the appeal period, the earliest that the Veteran reported that his scars were painful was during the January 3, 2013, examination where the Veteran stated that his scars were tender to palpation. Therefore, resolving any reasonable doubt in the Veteran’s favor, the Board finds that at the earliest, on January 3, 2013, the Veteran had three painful scars on his anterior trunk that were not unstable or equal to or greater than 39 square cm. 3. A rating higher than 20 percent for painful surgical scars associated with GERD from January 3, 2013. For the following reasons, a 20 percent for painful surgical scars associated with GERD from January 3, 2013, is not warranted. Since January 3, 2013, the Veteran had three painful scars on his anterior trunk that were not unstable or equal to or greater than 39 square cm. Therefore, as the Veteran does not have 5 scars that were painful or unstable, a rating higher than 20 percent under DC 7804 is not warranted. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.118, DCs 7800-7805 (in effect prior to and since August 13, 2018). TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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; provided that, if there is only one such disability, this disability shall be ratable as 60 percent or more, and if there are two or more 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). For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of a common etiology or from a single accident are considered to be one disability. Id. If a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation Service for extra-schedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service- connected disability. 38 C.F.R. § 4.16(b). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Id. Factors such as employment history, as well as educational and vocational attainments, are for consideration. Id. For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word “substantially” suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The Veteran has been awarded a TDIU, effective April 7, 2010, the date he met the schedular requirements for a TDIU pursuant to 38 C.F.R. § 4.16(a). The Veteran has raised the issue of a TDIU as part and parcel of his initial rating claims for his low back disability, right knee disability, and GERD, which were previously on appeal. The Veteran’s initial rating claims for his low back disability, right knee disability, and GERD were submitted in March 2007. The Veteran separated from active duty on April 24, 2007. Therefore, the remanding question is whether a TDIU is warranted from April 25, 2007, the day after the Veteran separated from service, to April 6, 2010. Prior to April 7, 2010, the Veteran’s service-connected disabilities included tinea versicolor (rated as 30 percent disabling); asthma (rated as 30 percent disabling); GERD (rated as 30 percent disabling); low back disability (rated as 10 percent disabling); right knee disability (rated as 10 percent disabling); and allergic rhinitis and an incisional scar (rated as noncompensable). Prior to April 7, 2010, the Veteran did not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a), as he did not have at least one disability rated at 40 percent with a combined rating of 70 percent. In cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability that do not meet the criteria under 38 C.F.R. § 4.16(a), a veteran’s TDIU claim may be referred to the Director of Compensation under 38 C.F.R. § 4.16(b). For the reasons below, prior to April 7, 2010, the Veteran’s service-connected disabilities do not preclude him from securing and following substantially gainful employment consistent with his education and occupational experience, and thus, a referral to the Director of Compensation under 38 C.F.R. § 4.16(b) is not warranted. The evidence shows that in a May 2011 VA 21-8940 Form (veteran’s application for increased compensation based on unemployability), the Veteran reported that he was last employed full-time, earning above the poverty threshold, on August 8, 2009, and that on August 10, 2009, his service-connected disabilities prevented him from securing or following substantially gainful employment. His employment history shows that he was employed as a Navy recruiter and a Social Security Administration associate. See, e.g., VA 21-8940 Form (veteran’s application for increased compensation based on unemployability) (May 2011). According to a correspondence from the Office of Personnel Management, the Veteran resigned from the Social Security Administration on August 29, 2009. VA treatment records dated in July 2009 show that the Veteran reported right knee and low back pain. He indicated that that despite physical therapy his back pain worsened. VA treatment records dated in September 2009 reflect that the Veteran had severe back pain and underwent physical therapy. An October 2009 treatment record reflects that the Veteran’s back pain improved and that his range of motion improved, as he was able to bend forward and touch the floor. Later that month, in October 2009, and in March 2010, the Veteran reported to his VA treatment providers that his back pain had continued. A November 2011 VA treatment note indicates that the Veteran completed an Information Technology (IT) degree. During a January 2013 VA examination, the VA examiner noted that the Veteran was last employed in June 2009. The examiner explained that the Veteran stopped working to complete his master’s degree, that he obtained full time, and that after graduating in June 2011, he was unemployed. The preponderance of the evidence is against a TDIU prior April 7, 2010. Although the Veteran had low back and knee pain, he completed his master’s degree, as a full-time student. Also, during this time, the Veteran attended his physical therapy appointments for his low back with some improvements in his low back range of motion. Furthermore, the evidence suggest that the Veteran would had been able to perform low impact employment, consistent with his education and work experience, as he was a full-time student and completed his school assigments to obtain his master’s degree. In this regard, the Veteran’s IT degree coupled with his experience as a Navy recruiter and a Social Security Administration associate reflects that he would had been capable of nonphysical, low-impact employment. For the foregoing reasons, the Veteran’s service-connected disabilities did not prevent him from securing and following substantially gainful employment prior to April 7, 2010. The benefit-of-the-doubt doctrine is therefore not for application and a TDIU prior to April 7, 2010, is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Castillo, 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.