Citation Nr: 21065302 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-30 754 DATE: October 25, 2021 ORDER Entitlement to a 50 percent disability rating for scar residuals, facial burns and shrapnel wounds, from December 7, 2011 to December 7, 2018, is granted. Entitlement to an earlier effective date prior to January 5, 2012 for the grant of a total disability rating based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. From December 7, 2011 to December 7, 2018, the preponderance of the evidence indicates that the Veteran's facial scars resulted in visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with four or five characteristics of disfigurement. 2. The preponderance of the evidence indicates that the Veteran has been unable to secure or follow a substantially gainful occupation since December 2012 due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable disability rating for scar residuals, facial burns and shrapnel wounds, prior to December 7, 2018, have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 2. The criteria for entitlement to an effective date prior to January 5, 2012, for the award of TDIU due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.3, 4.16 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from March 1980 to May 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of a VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a November 2019 hearing before the Board of Veterans' Appeals (Board). In October 2020, March 2021, and July 2021 decisions, the Board remanded this claim for additional development. The Board finds that the RO has now substantially complied with its remand directive requesting a retrospective opinion concerning the severity of the facial scar disability prior to December 7, 2018. Accordingly, the Board will proceed with adjudication. 1. Entitlement to a compensable disability rating for scar residuals, facial burns and shrapnel wounds, prior to December 7, 2018, The Veteran asserts that his facial scar disability was more severe than is reflected by his current noncompensable rating for the period from December 7, 2011, the date of receipt of his claim for an increased rating, to December 7, 2018. In general, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The diagnostic criteria for disorders of the skin are found at 38 C.F.R. § 4.118, DCs 7800-7805. Under DC 7800, for burn scars, scars due to other causes, or other disfigurement, of the head, face, or neck, a 10 percent rating is warranted for one characteristic of disfigurement. A 30 percent rating is for application when there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with two or three characteristics of disfigurement. A 50 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with four or five characteristics of disfigurement. A maximum schedular 80 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with six or more characteristics of disfigurement. 38 C.F.R. § 4.118, DC 7800. The eight characteristics of disfigurement, for purposes of evaluation under 38 C.F.R. § 4.118, DC 7800 are: (1) a scar of 5 or more inches (13 or more centimeters) in length; (2) a scar of at least one-quarter inch (0.6 centimeters) wide at widest part; (3) surface contour of a scar elevated or depressed on palpation; (4) a scar adherent to underlying tissue; (5) skin hypo- or hyper-pigmented in an area exceeding 6 square inches (39 square centimeters); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39 square centimeters); (7) underlying soft tissue missing in an area exceeding 6 square inches (39 square centimeters); and (8) skin indurated and inflexible in an area exceeding 6 square inches (39 square centimeters). 38 C.F.R. § 4.118, DC 7800, Note (1). In this case, during the Veteran's May 2007 VA examination, the Veteran reported that his lip scars were fragile and occasionally reopened. The examiner noted that the scars on the face were mostly covered by his full beard. In December 2011, the Veteran submitted a statement in support of his claim for an increased rating for his facial scar disability. During the Veteran's September 2013 VA examination for scars, the VA examiner noted no painful or unstable scars and stated that the number of scars could not be measured because they were covered by his beard. During the Veteran's December 2015 VA examination for scars, the VA examiner noted facial scars dated back to 1991 and found 4 scars on the head, face, or neck. They covered the nose, left and right sides of the lower lip, and right side of the chin. One scar displayed abnormal pigmentation. None of the scars were painful or unstable. During the Veteran's December 2018 VA examination for scars, the examiner noted 2 painful scars of the face, no unstable scars, but they found that none of the scars were due to burns. They listed 4 scars in total, one on the left lower mouth, one on the right lower mouth, the chin area, and right bottom of the face. All 4 scars displayed surface contour elevated on palpation and surface contour depressed on palpation. One scar was associated with underlying soft tissue missing. Several scars were also associated with hypopigmentation, hyperpigmentation, induration or inflexibility, and abnormal texture. 2 scars were tender to palpation. There was gross asymmetry of facial features on the chin, cheeks, and lips. The Veteran also reported numbness and tingling in his facial scars. During the Veteran's November 2019 Board hearing, the Veteran testified that his scars were uneven and prevented him from shaving. Additionally, when the weather became cold, it caused his scars to become painful. Finally, he testified that his scars' severity had been the same throughout the period on appeal. In a November 2020 VA medical opinion, the VA examiner found that the evidence suggested a dramatic worsening of the Veteran's facial scars at the time of the 2018 VA examination; however, the Board found the opinion inadequate for adjudication purposes, and its rationale to be brief and limited in detail. Accordingly, the Board lends this opinion only limited probative weight. In a May 2021 VA medical opinion, the VA examiner noted 4 scars, and the Veteran reported that they became painful during the cold. The examiner found that the 2018 VA examination findings were not supported by objective evidence, and the earlier examinations were more accurate; however, the Board finds that the examiner's rationale did not provide adequate support for the conclusion that the earlier examinations were accurate. It also failed to consider the Veteran's lay statements and hearing testimony. Accordingly, it lends this opinion only limited probative weight. During the Veteran's August 2021 VA examination for scars, the VA examiner found that his facial scars had stayed the same since their onset in 1992. 2 scars were painful, and none were unstable. The examiner noted 4 scars, on the left and right lower lip, right side of face near the nose, and right chin. Hypopigmentation, hyperpigmentation, and tenderness to palpation were noted. The examiner considered the Veteran's statements, including his reports that his condition had been the same throughout the period on appeal and that he experienced numbness and pain during cold weather. The examiner stated that the 2015 VA examination was most consistent with their findings, as they found 4 facial scars with occasionally numbness and pain caused by cold weather. Finally, the examiner noted that the findings of the various VA examinations might have varied due to being conducted at different times. The Veteran has consistently maintained that his facial scar disability was more severe and consistently severe throughout the period on appeal. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds the preponderance of the evidence indicates that the Veteran's facial scars have resulted in visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired set of features. There is conflicting evidence regarding the severity of the Veteran's facial scars throughout the period on appeal. First, the Board notes that the Veteran has maintained that his scars have been the same throughout the period on appeal and that his VA examinations prior to 2018 did not properly assess his facial scars. The Board notes that the disability in question concerns scars, and there is no evidence in the record of sudden or substantial worsening of these scars. It has also considered that the various VA examinations of record have varied in their findings, and no medical opinion has definitively stated what the severity of the facial disability was throughout the period on appeal. While the Board has considered the Veteran's lay assertions, it has also considered that the findings concerning his facial scars were taken at multiple times, often years apart. Therefore, it is plausible that his scars may have changed to a degree in shape or severity over time. Nonetheless, the preponderance of the evidence indicates that the Veteran has had 4 facial scars throughout the period on appeal, which have affected his mouth, nose, and chin. These findings are consistent with the criteria for a 50 percent rating. 38 C.F.R. § 4.118, DC 7800. Despite multiple medical opinions and VA examinations on the topic, until the 2018 VA examination, there was no objective evidence of visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with six or more characteristics of disfigurement. Therefore, the Board finds that the criteria for an 80 percent rating have not been met for the period prior to December 7, 2018. Based on these facts, the preponderance of the evidence supports granting a 50 percent disability rating, and no higher. Accordingly, a 50 percent disability rating is granted for the Veteran's facial scars disability effective December 7, 2011 until December 7, 2018. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record other than the issue of entitlement to an earlier effective date for the grant of TDIU, which is addressed below. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). 2. Entitlement to a total disability rating based upon individual unemployability for the period from December 7, 2011 to January 5, 2012 In a November 2020 rating decision, the Veteran was granted an earlier effective date for the grant of TDIU. The RO assigned January 5, 2012 as the new effective date, which the RO stated was the date the Veteran met the schedular requirements for TDIU under 38 C.F.R. § 4.16. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to secure or follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). The law provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran meets the criteria for schedular consideration for TDIU from December 7, 2011 onward, which is also the date of receipt of his claim for an increased rating for his facial scar disability. Accordingly, the Board finds that the issue of entitlement to an earlier effective date for TDIU has been raised by the record and must be addressed. Rice v. Shinseki, 22 Vet. App. 447 (2009). In the Veteran's January 2018 TDIU application, he stated that he was last gainfully employed in December 2012, when he worked fulltime as an engineer. He stated he became too disabled to work in January 2013. Based on these facts, and the absence of any other objective evidence supporting the claim, the Board finds the preponderance of the evidence is against granting an earlier effective date for the grant of TDIU. The Veteran's current effective date already covers the entire period during which he asserts his service-connected disabilities prevented him from working. Accordingly, the claim for an earlier effective date for the grant of TDIU is denied. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.