Citation Nr: 21062251 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 16-31 433 DATE: October 6, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent for a right foot scar due to residuals of a right foot shrapnel injury is denied. Entitlement to an initial evaluation in excess of 20 percent for right lower extremity neuropathy is denied. REMANDED Entitlement to separate ratings for residuals of a right foot shrapnel injury, other than scar, is remanded. FINDINGS OF FACT 1. During the period on appeal, the Veteran's right foot scar due to residuals of a right foot shrapnel injury did not result in three or four scars that are unstable or painful. 2. During the period on appeal, the Veteran's right lower extremity neuropathy was not manifested by moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial evaluation in excess of 10 percent for a right foot scar due to residuals of a right foot shrapnel injury have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes 5284-7804. 2. The criteria for entitlement to an initial evaluation in excess of 20 percent for right lower extremity neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.120, 4.123, 4.124a, Diagnostic Code (DC) 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1989 to March 2011, including service in Kuwait and multiple tours in Iraq. His many decorations include the Combat Action Badge and Bronze Star Medal. This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision dated September 2012 issued by a Department of Veterans Affairs (VA) Regional Office. The decision granted service connection for, as relevant, (1) right lower extremity neuropathy and assigned an initial noncompensable rating, and (2) status post shrapnel wound, right foot with an initial noncompensable rating. The Veteran timely appealed the initial ratings. A May 2016 rating decision implemented a grant in the statement of the case of higher initial ratings; specifically, 20 percent for neuropathy and 10 percent for "scar on right foot, residual of right foot shrapnel injury (previously rated as status post shrapnel wound). This rating decision also changed the Diagnostic Code under which the residual of shrapnel injury is rated from 5284 to 5284-7804. The Veteran's appeal has previously been before the Board. In July 2019, the Board remanded the Veteran's claims to the Agency of Original Jurisdiction (AOJ) for additional development. INCREASED RATINGS A disability rating is determined by applying VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board may consider whether separate ratings may be assigned for separate periods of time - a practice known as "staged ratings," - whether or not the claim concerns an initial rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial evaluation in excess of 10 percent for a right foot scar due to residuals of a right foot shrapnel injury The Veteran's right foot scar due to residuals of a right foot shrapnel injury is rated as 10 percent disabling under DCs 5284-7804. The Veteran contends that he is entitled to an increased rating. The period on appeal begins on April 1, 2011, the date the Veteran was awarded service connection for this disability. Under DC 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 DC 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. In this case, the Board finds that the preponderance of the evidence of record is against the assignment of a rating in excess of 10 percent under DC 7804 because the Veteran's disability is not manifested by three or four scars that are unstable or painful. Medical treatment records during the appeal period show that the Veteran reported and was treated for chronic right foot pain from the residuals of his gunshot wound. In a December 2019 VA examination for scars, the Veteran had one or more scars described as shrapnel wounds, burn scars, right foot (two each). The number of painful scars was one. The description of the pain was pain to the touch on the right lateral side. None of the scars were unstable with frequent loss of covering of skin over the scar. Two of the scars were due to burns and both were described as dorsal right foot less than deep partial thickness. Scar number one was 7 cm by .5 cm. Scar number two was 1.5 cm by 1.5 cm. Scar number three was 4 cm by 2 cm. Scar number four was 3 cm by 2.5 cm. Scars on the right lower extremity covered approximately 8.5 cm squared and 7 cm squared. The Veteran had right lateral nerve damage due to scars, which is compensated by the separate peripheral neuropathy rating discussed below. In a November 2020 VA examination for scars, the Veteran had two scars on the right lateral foot. Neither of the scars were painful or unstable. Neither of the scars were due to burns. The first scar was 9 cm by .5 cm, and the second scar was 3 cm by .5 cm. Both scars had underlying tissue damage. The approximate total area of this was 6 cm squared. The Veteran does not contend that he currently has three or four scars that are unstable or painful, nor does the evidence show that he has more than one painful or unstable scar. Absent evidence showing three or four painful or unstable scars, a rating higher than 10 percent is not warranted under DC 7804. The Board has also considered the other DCs pertaining to scars. However, the Veteran's right foot scar due to residuals of a right foot shrapnel injury is not of the head, face, or neck, and is not deep and nonlinear. Furthermore, although the Veteran's right foot scar due to residuals of a right foot shrapnel injury is associated with underlying soft tissue damage, it does not cover an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). Additionally, although the December 2019 VA examiner noted that two of the Veteran's scars were due to burns, they did not cover an area or areas of 144 square inches (929 sq. cm.) or greater. Therefore, Diagnostic Codes 7800 through 7802, both prior to and from the August 13, 2018 revision of regulations, are inapplicable. Finally, the evidence of record shows there are no other disabling effect(s) not considered in a rating provided under DCs 7800-04 as contemplated under DC 7805. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include pain. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His reports of pain are credible and fully contemplated by the disability rating assigned. However, he does not assert, and the medical evidence does not show, that his right foot scar due to residuals of a right foot shrapnel injury is manifested by three or four scars that are unstable or painful. The Board notes that while the December 2019 VA examiner noted that the Veteran had four scars, only one of the scars was painful and none of the scars were unstable. Thus, as the Veteran does not have three or four scars that are unstable or painful, a higher 20 percent rating is not warranted. 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 a right foot scar due to residuals of a right foot shrapnel injury. 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 an initial evaluation in excess of 20 percent for right lower extremity neuropathy The Veteran's right lower extremity neuropathy is rated as 20 percent disabling under DC 8520. The Veteran contends that he is entitled to an increased rating. The period on appeal begins on April 1, 2011, the date the Veteran was awarded service connection for this disability. Under DC 8520 incomplete paralysis of the sciatic nerve is rated as 20 percent disabling when it is moderate, and 40 percent disabling when it is moderately severe. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various DCs are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). In a December 2019 VA examination for peripheral nerve conditions, the Veteran reported residual lateral pain, numbness, and tingling with shooting pain up the leg. He used medication, steroid cream, and an orthotic shoe insert for treatment. He had moderate current pain and moderate paresthesias and/or dysesthesias in the right lower extremity. He also had severe intermittent pain and severe numbness in the right lower extremity. Ankle plantar flexion was 5/5. Ankle dorsiflexion was 4/5 in the right. He did not have muscle atrophy. Knee and ankle reflexes were 2 plus. Sensation testing was normal, except it was decreased in the right foot/toes. His abnormal gait was described as difficulty with weight bearing right lateral foot without shoes due to residuals of shrapnel wounds. The Veteran had moderate incomplete paralysis in the external popliteal nerve in the right extremity. He could not perform extensive weight bearing without breaks, walk on uneven terrain, or engage in climbing. In a November 2020 VA examination for peripheral nerve conditions, the Veteran reported that he experienced numbness in his right lateral foot. He had mild intermittent pain, paresthesias and/or dysesthesias, and numbness in his right lower extremity. Muscle strength testing was 5/5 with no muscle atrophy. The Veteran's gait was normal. He had mild incomplete paralysis in his right lower extremity in the superficial peroneal nerve. Due to the right superficial peroneal neuropathy, the Veteran reported difficulty driving, walking, and with generalized weight-bearing. This evidence preponderates against finding more than moderate impairments of the right lower extremity neuropathy. In this regard, although ankle dorsiflexion strength was decreased in the right side during his December 2019 VA examination, it was no less than "4/5" with remaining lower extremity strength normal. Additionally, during the Veteran's November 2020 VA examination, muscle strength testing was 5/5 for all joints tested. No trophic changes or muscle atrophy were noted. Additionally, the December 2019 VA examiner determined that the Veteran had moderate incomplete paralysis in the right extremity, and the November 2020 VA examiner determined that the Veteran had mild incomplete paralysis in his right lower extremity. Thus, although there is evidence of more than sensory symptoms, overall, those symptoms are of no more than moderate severity. The evidence does not more nearly approximate moderately severe impairments of the sciatic nerve. Thus, entitlement to an initial evaluation in excess of 20 percent for right lower extremity neuropathy is denied. REASONS FOR REMAND 1. Entitlement to separate ratings for residuals of a right foot shrapnel injury, other than scar, is remanded. As noted above, service connection was originally granted for status post shrapnel wound, right foot with an initial noncompensable rating under Diagnostic Code 5284 (foot injuries, other). The May 2016 rating decision granted 10 percent for "scar on right foot, residual of right foot shrapnel injury" and changed the Diagnostic Code from 5284 to 5284-7804 (indicating the rating compensates a scar that is part of a service-connected "other foot injury." In its July 2019 remand, the Board directed that a VA medical opinion be obtained, in pertinent part, to specifically identify each diagnosis of the right foot, including hallux valgus, bilateral degenerative joint disease, metatarsalgia, hammer toes, and bilateral pes planus. The examiner was then asked to provide an opinion as to whether it was at least as likely as not that the disorder was part and parcel of the original shrapnel injury, was caused by the service-connected residuals of the right foot shrapnel injury or scar, and/or was aggravated by either the service-connected residuals of the right foot shrapnel injury or scar. In a November 2020 VA examination, the VA examiner determined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He provided, There is no evidence that the Veteran has any of these conditions except for pes planus. With specific regards to pes planus (for which there IS evidence of), there is no medical evidence of the shrapnel injury either has caused or aggravated the condition of pes planus. As such, a nexus has not been established. With regards to the rest of the conditions, these conditions do not exist and thus no medical opinion can be made. Again, a nexus has not been established. Thereafter, in a July 2021 appellate brief, the Veteran's representative wrote, The C&P's did not appear to adequately address the issue of hallux valgus, bilateral degenerative joint disease. It is unclear how the examiner can determine that [the Veteran] does not have these conditions when there are diagnostic tests which says that he does...We ask the Board to request an independent medical opinion to in part discuss the issue of additional disabilities, to review the diagnostic testing already on file for this Veteran and or order updated diagnostic testing of the foot. The Board finds that there is an error in the November 2020 opinion because it appears to have overlooked prior evidence indicating diagnoses of hallux valgus and degenerative joint disease of the bilateral feet. See June 2013 VA examination report. An opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). While the VA examiner complied with the remand directive and provided an opinion on other foot diagnoses, the Board finds that the opinion is inadequate. Therefore, a remand is required to obtain an addendum opinion addressing whether any other foot disabilities present at any time since April 1, 2011 are residuals of the shrapnel injury. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician. If the examiner determines an in-person examination is necessary, it should be provided. The examiner should review the claims file and answer the following. (a.) Identify all right foot disabilities other than scars that have been present at any time since April 1, 2011. (b.) For each identified disability, state whether it is at least as likely as not that the disability is a residual of the Veteran's shrapnel wound to the right foot. (Continued on the next page) (c.) For any identified disabilities found to be residuals of the shrapnel wound, please evaluate the severity of the disabilities using the proper disability benefits questionnaires. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Minock 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.