Citation Nr: 21062212 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 16-47 967 DATE: October 6, 2021 ORDER Entitlement to a 10 percent disability rating for removal cyst of the head (herein head scar) is granted. REMANDED Entitlement to a disability rating in excess of 20 percent for lumbosacral strain (low back disability) is remanded. Entitlement to a compensable disability rating for warts on both hands is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT Throughout the appeal period, the Veteran's head scar has been described as painful. CONCLUSION OF LAW Throughout the appeal period, the criteria for a 10 percent disability evaluation for the service-connected head scar have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code (DC) 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1994 to March 1998. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Board remanded this appeal for further development. The Board notes that the July 2019 Board decision awarded service connection for an acquired psychiatric disorder. A July 2020 rating decision implemented that decision and awarded a 30 percent disability rating, effective October 15, 2013. In September 2020, the Veteran submitted a VA Form 10182 in disagreement with the assigned rating and selected the direct review docket. As such, that matter will be adjudicated separately under the Appeals Modernization Act (AMA). Entitlement to a 10 percent disability rating for the service-connected head scar is granted. The Veteran contends that his service-connected head scar warrants a compensable disability rating. This condition is currently rated under 38 C.F.R. § 4.118, DC 7801. Scars are evaluated pursuant to 38 C.F.R. § 4.118, DCs 7800, 7801, 7802, 7804, and 7805. Effective August 13, 2018, the rating criteria for skin disabilities were revised. See 73 Fed. Reg. 32,592 (July 13, 2018). As this appeal was pending on August 13, 2018, the revised criteria are applicable, but only for the period beginning August 13, 2018. The Board does note, however, the relevant diagnostic codes in this case were not significantly changed. Under the revised criteria: DC 7800 was not revised. DC 7801 provides ratings for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. The criteria for a 10 percent rating were not revised. DC 7802 provides ratings for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. The criteria for a 10 percent rating were not revised. DC 7804 was not revised. DC 7800 provides a 10 percent rating with one characteristic of disfigurement of the head, face, or neck. A 30 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or, with two or three characteristics of disfigurement. Note (1) provided the 8 characteristics of disfigurement for the purposes of rating under 38 C.F.R. § 4.118. These include: Scar that is 5 inches (13 or more cm) in length; Scar at least one-quarter inch (0.6 cm) wide at widest part; Surface contour of scar elevated or depressed on palpation; Scar adherent to underlying tissue; Skin is shown to be hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); Skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); Skin indurated an inflexible in an area exceeding six square inches (39 sq. cm). Id. Deep and nonlinear scars that are not of the head, face, or neck are evaluated as follows: area of 929 square centimeters or greater (40 percent); area of 465 to 929 square centimeters (30 percent); area of 77 to 465 square centimeters (20 percent); and area of 39 to 77 square centimeters (10 percent). 38 C.F.R. § 4.118, DC 7801 (2020). DC 7801, Note (1) defines a deep scar as "one associated with underlying soft tissue damage." Superficial and nonlinear scars that are not of the head, face, or neck are evaluated as follows: area of 929 square centimeters or greater (10 percent). 38 C.F.R. § 4.118, DC 7802 (2020). DC 7802, Note (1) defines a superficial scar as "one not associated with underlying soft tissue damage." Unstable or painful scars are evaluated as follows: five or more scars that are unstable or painful (30 percent); three or four scars that are unstable or painful (20 percent); and one or two scars that are unstable or painful (10 percent). 38 C.F.R. § 4.118, DC 7804. DC 7804 Note (2) allows for an extra 10 percent rating if one or more of the scars are both unstable and painful. DC 7804, Note (1) defines an unstable scar as "one where, for any reason, there is frequent loss of covering of skin over the scar." The provisions of 38 C.F.R. § 4.118, DC 7805 apply to other scars, including linear scars, and "other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804." DC 7805 contains the instruction "Evaluate any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code." In his February 2013 increased rating claim, the Veteran stated that his head scar was painful to the touch. He reiterated this assertion in a statement accompanying his September 2016 VA Form 9, and explained that the condition resulted in discomfort on a daily basis. In October 2013, the Veteran was afforded a VA examination for his head scar. The scar was located in the frontal region of the scalp. The examiner did not indicate that the scar was painful or unstable. There was no elevation, depression, adherence to underlying tissues, abnormal pigmentation or texture, or missing underlying soft tissue related to the scar. The report further noted no gross distortion or asymmetry of facial features or visible tissue loss. The Veteran underwent another VA scar examination in November 2019. The examiner did not indicate that the scar was painful or unstable. It measured 2.5 centimeters by .1 centimeters. There was no elevation, depression, adherence to underlying tissues, abnormal pigmentation or texture, or missing underlying soft tissue related to the scar. The report further noted no gross distortion or asymmetry of facial features or visible tissue loss. In a July 2020 statement, the Veteran again reported that his head scar was painful to the touch, specifically when combing or shampooing his hair. The evidence supports a 10 percent rating for the Veteran's head scar under DC 7804 because it has been characterized as painful. Indeed, the Veteran consistently and credibly reported that his head scar was painful to the touch throughout the entire period on appeal. Although the VA examiners did not indicate that the scars were painful, the Board finds the Veteran's statements that he experienced pain due to his head scar are more probative. The Veteran has consistently asserted that his head scar was painful to the touch, as early as the February 2013 claim and most recently as July 2020. The September 2021 appellate brief indicates that the Veteran reported such symptomatology to the November 2019 examiner, but that these comments were disregarded. The Veteran is competent to provide this testimony concerning factual matters of which he has first-hand knowledge (that is, experiencing physical symptoms such as pain). See Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, the Board finds that the Veteran has satisfied the requirements for a 10 percent rating. The Board has also considered the other Diagnostic Codes pertaining to scars. However, as noted above, the Veteran's head scar does not have one of the 8 characteristics of disfigurement for the purposes of rating under 38 C.F.R. § 4.118, as to warrant a compensable rating. Additionally, the evidence of record shows there are no other disabling effects not considered in a rating provided under DCs 7800-04 as contemplated under DC 7805. The Board reiterates that, while the rating criteria were revised, effective August 2018, the revised versions of Diagnostic Codes 7800, 7804, and 7805 underwent no substantive changes. In sum, resolving reasonable doubt in favor of the Veteran, the Board finds that a 10 percent compensable rating for his service-connected head scar is warranted. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent for the low back disability is remanded. The July 2019 Board remand directed the RO to provide the Veteran with a new VA examination for his low back disability. A November 2019 examiner indicated that the Veteran did not experience flare-ups, but went on to note that the condition was easily aggravated and that certain physical activities resulted in pain. The Veteran's representative contends that such notations are indicative of flare-ups and that the examiner incorrectly failed to address these reports. See September 2021 Appellate Brief. Additionally, the Veteran asserts that he reported experiencing flare-ups between two and three times per week to the November 2019 examiner, which resulted in pain and weakness throughout his legs and required him to be stationary until the flare-up resolved. See Statement dated July 2020. However, he appears to allege that such comments were disregarded by the examiner. Indeed, the examiner did not complete the flare-up section of the examination report. Importantly, a Court of Appeals for Veterans Claims (Court) decision addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. In consideration of the above, the Board finds that a new VA examination is warranted. The November 2019 examiner failed to include the Veteran's descriptions of flare-ups, and inaccurately noted that he did not experience such symptomatology. Indeed, the VA examiner's questioning did not address the severity, frequency, duration, or functional loss during a flare-up, despite the Veteran's contentions that he described flare-ups at the time of examination. The Veteran is competent to report these symptoms. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). The portion of the examination where the examiner was asked to describe loss during flare ups in terms of range of motion was unanswered, and no additional description was provided. As such, the Board finds that a remand is necessary to obtain a new VA examination to address the Veteran's flare-ups in compliance with Sharp. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. 2. Entitlement to a compensable disability rating for warts on both hands is remanded. The July 2019 Board remand also directed the RO to provide the Veteran with a new VA examination for his service-connected warts on both hands. The examiner was asked to specify the number of wart scars present upon examination. Upon further review, the November 2019 examiner did not substantially comply with the July 2019 remand directives. Specifically, the examiner indicated that both hands were affected, but did not state the total number of scars, the area of each scar, or whether each scar identified was painful and/or unstable. The Board errs when it fails to ensure substantial compliance with a Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). As such, a remand is necessary to obtain a new VA examination for the scars related to the service-connected warts of both hands. 3. Entitlement to a TDIU is remanded. The issue of entitlement to a TDIU is intertwined with the claims remanded herein; accordingly, it must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated.) The matters are REMANDED for the following actions: 1. Obtain all outstanding VA and/or private treatment records. For any private treatment records, obtain the appropriate signed releases from the Veteran, and associate any additional records with the claim. Should such records exist, associate them with the electronic claims file. 2. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and severity of the Veteran's low back disability. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. After performing any/all necessary testing, the examiner should determine the current severity of the Veteran's low back disability. The examiner is to specifically test the range of motion in active motion, passive motion, weight-bearing, and non weight-bearing, for the joint(s) in question and any paired joint(s). The examiner should detail range of motion measurements, to include the degree at which the Veteran experiences pain, any additional impact caused by motion such as weakness and fatigability, incoordination, or swelling. The examiner should provide an opinion as to additional functional loss and loss of range of motion during flare-ups of the musculoskeletal disability. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and severity of the Veteran's scars related to warts of both hands. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. After performing any/all necessary testing, the examiner should determine the current severity of the Veteran's wart scars of both hands. The examiner should address the number and location of all of the Veteran's hand scars. The examiner should state the total number of scars, the area of each scar, and whether each scar is painful and/or unstable. The examiner should also address the total combined area of the Veteran's scars, as well as the percentages of total body area and exposed body area affected by his scarring. The examiner should address the Veteran's lay statements regarding his symptomatology, and the previous VA examination reports and any other pertinent evidence of record, as appropriate. (Continued on the next page) If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.