Citation Nr: 21066451 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 15-42 885 DATE: November 1, 2021 ORDER Entitlement to a rating in excess of 10 percent for a scar of the right femur/hip is denied. REMANDED Entitlement to a rating in excess of 40 percent for lumbar spine strain is remanded. Entitlement to a rating in excess of 10 percent for residuals of a right femur fracture is remanded. Entitlement to an initial compensable rating prior to October 7, 2019, and in excess of 10 percent as of October 7, 2019, for a left weak quadriceps muscle is remanded. Entitlement to an initial compensable rating prior to October 7, 2019, and in excess of 10 percent as of October 7, 2019, for a right weak quadriceps muscle is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT For the entire period on appeal, the Veteran's right femur/hip scar was manifested by one or two painful scars that were not deep and nonlinear, with underlying soft tissue damage, or unstable; did not affect an area or areas of 144 square inches (929 sq. cm.) or greater; and did not have any other disabling effects. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a scar of the right femur/hip have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 2007 to June 2008. The Board remanded these claims in September 2018. 1. Entitlement to a rating in excess of 10 percent for a scar of the right femur/hip 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 Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1. Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different ratings, staged ratings may also be assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran has been assigned a 10 percent rating for his right femur/hip scar under Diagnostic Code 7804. He argues that a higher initial disability rating is warranted. During the pendency of this appeal, VA recently published a final rule amending its regulations on skin disabilities effective August 13, 2018. Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted VA to do otherwise and VA did so. See VAOGCPREC 7-2003. However, "the case law is clear that a regulation is not to be applied retroactively unless the regulation is intended to be retroactive." Ervin v. Shinseki, 24 Vet. App. 318, 322 (2011) (citing Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003)). Here, the recently revised skin regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, August 13, 2018. Hence, for the period beginning August 13, 2018, the version more favorable to the Veteran will apply. Under the scar regulations in effect prior to August 13, 2018, scars that, as here, do not impact the head, face, or neck are rated under 38 C.F.R. § 4.118, Diagnostic Codes 7801 to 7805. Under Diagnostic Code 7801, a 10 percent rating is assigned when a scar, not of the head, face, or neck, is deep and nonlinear, and covers an area of at least 6 square inches (39 sq. cm.), but less than 12 square inches (77 sq. cm.). A 20 percent rating is assigned for a deep and nonlinear scar not of the head, face, or neck, with an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.). A 30 percent rating is assigned for a deep and nonlinear scar not of the head, face, or neck, with an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.). A 40 percent rating is assigned for a deep and nonlinear scar not of the head, face, or neck, with an area or areas of 144 square inches (465 sq. cm.) or greater. A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801 (in effect from October 23, 2008 to August 13, 2018). Under Diagnostic Code 7802, a 10 percent rating is assigned when a scar, not of the head, face, or neck, is superficial and nonlinear, and covers an area of at least 144 square inches (929 sq. cm.). A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802 (in effect from October 23, 2008 to August 13, 2018). Under Diagnostic Code 7804, a 10 percent rating is assigned for one or two scars that are unstable or painful. A 20 percent rating is assigned for three or four scars that are unstable of painful. A 30 percent rating is assigned for five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. Finally, scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable. 38 C.F.R. § § 4.118, Diagnostic Code 7804 (in effect from October 23, 2008 to August 13, 2018). Under Diagnostic Code 7805, any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 should be evaluated under an appropriate diagnostic code. 38 C.F.R. § § 4.118, Diagnostic Code 7805 (in effect from October 23, 2008 to August 13, 2018). Under the scar regulations in effect since August 13, 2018, Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are associated with underlying soft tissue damage. Under Diagnostic Code 7801, a 10 percent rating is assigned for a scar not of the head, face, or neck, that is associated with underlying soft tissue damage with an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). A 20 percent rating is assigned for a scar not of the head, face, or neck, that is associated with underlying soft tissue damage with an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.). A 30 percent rating is assigned for a scar not of the head, face, or neck, that is associated with underlying soft tissue damage with an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.). A 40 percent rating is assigned for a scar not of the head, face, or neck, that is associated with underlying soft tissue damage with an area or areas of 144 square inches (465 sq. cm.) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7801 (in effect since August 13, 2018). Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are not associated with underlying soft tissue damage. A 10 percent rating is assigned for a scar not of the head, face, or neck, that is not associated with underlying soft tissue damage, with an area or areas of 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § § 4.118, Diagnostic Code 7802 (in effect since August 13, 2018). Diagnostic Code 7804 provides ratings for scars that are unstable or painful. A 10 percent rating is assigned for one or two scars that are unstable or painful. A 20 percent rating is assigned for three or four scars that are unstable or painful. A 30 percent rating is assigned for five or more scars that are unstable or painful. 38 C.F.R. § § 4.118, Diagnostic Code 7804 (in effect since August 13, 2018). An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1). If one or more scars are both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (2). Finally, scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (3). Under Diagnostic Code 7805, any disabling effects of other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804, that are not considered in a rating provided under diagnostic codes 7800-7804 are to be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (in effect since August 13, 2018). The Veteran was first examined for his right hip/femur scar in January 2013. See January 2013, VA Scars/Disfigurement examination. At that time, he indicated that he had intermittent discomfort in the area of the scar, but that it did not limit his ability to function. The examiner observed a 6.5cm scar on the right hip and concluded that it was not painful or unstable and did not cause any limitation of function. The Veteran was more recently examined in October 2019. See October 2019, VA-QTC Scars/Disfigurement examination. At that time, he complained of pain due to the underlying injury but not specific to the scar. The examiner observed two scars measuring 6.0cm by 0.2cm and 4.5cm by 0.2cm. He noted that the scars were not painful or unstable, not due to burns, and did not have any underlying tissue damage. He concluded that the scars did not result in any limitation of function or occupational limitations. The evidence also includes VA and private treatment records and lay statements from the Veteran. None of these records or statements suggests that the Veteran's right hip scars are unstable, painful (other than the intermittent discomfort noted on the January 2013 VA examination report), deep, or associated with underlying soft tissue damage, larger than measured by the VA examiners, or otherwise disabling. Based on the medical and lay evidence of record, the Board finds that the Veteran does not meet the criteria for rating in excess of 10 percent for his right femur/hip scar at any time during the appeals period. The objective findings noted in VA examinations do not warrant separate compensable ratings under Diagnostic Codes 7801, 7802, or 7805 either prior to or since August 13, 2018, as the scar is not deep and nonlinear or associated with underlying soft tissue damage (Diagnostic Code 7801), does not cover an area of at least 144 square inches (929 sq. cm.) (Diagnostic Code 7802), or associated with any other disabling effects (Diagnostic Code 7805). There are also only one or two scars in question, so a rating in excess of 10 percent is not warranted under his currently assigned diagnostic code (7804). There is also no indication in the medical evidence that the Veteran's service connected right femur/hip scar warranted other than the currently assigned 10 percent rating at any point during the appeals period. The assignment of staged ratings is not warranted. See Hart, supra. Accordingly, the Board finds that the claim of entitlement to a rating in excess of 10 percent for scar of the right femur/hip is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision in this matter. REASONS FOR REMAND 1. Entitlement to a rating in excess of 40 percent for lumbar spine strain is remanded. The Veteran was examined for his low back disability most recently in October 2019. See October 2019, VA-QTC Back (Thoracolumbar Spine) Condition examination. At that time, he complained of low back pain that radiated to his buttocks. The examiner concluded that he had no radicular pain or other signs or symptoms of radiculopathy. However, the examiner did not explain why the Veteran's complaints of radiating pain were not radicular or related to radiculopathy. The claim must be remanded to address these complaints and their etiology. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. Entitlement to an initial compensable rating prior to October 7, 2019, and in excess of 10 percent as of October 7, 2019, for a left weak quadriceps muscle is remanded. The Veteran was afforded a VA contract examination of his knees in conjunction with his left weak quadriceps muscle claim in December 2019. See December 2019, VA-QTC Knee and Lower Leg Conditions examination. The examiner noted that the Veteran experienced flare ups that further limited his knees, but that he could not describe these limitations in terms of range of motion because the Veteran was not having a flare up at the time of the examination. He further stated that objective, accurate, and measurable estimates of additional limitation of motion could not be derived from the Veteran's input. However, he did not explain whether he attempted to estimate additional functional loss during flare ups but asking the Veteran specific questions. See Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). This claim must be remanded so the examiner can attempt to estimate additional functional loss during flare ups. See Barr, supra. 3. Entitlement to an initial compensable rating prior to October 7, 2019, and in excess of 10 percent as of October 7, 2019, for a right weak quadriceps muscle is remanded. The Veteran was afforded a VA contract examination of his knees in conjunction with his right weak quadriceps muscle claim in December 2019. See December 2019, VA-QTC Knee and Lower Leg Conditions examination. The examiner noted that the Veteran experienced flare ups that further limited his knees, but that he could not describe these limitations in terms of range of motion because the Veteran was not having a flare up at the time of the examination. He further stated that objective, accurate, and measurable estimates of additional limitation of motion could not be derived from the Veteran's input. However, he did not explain whether he attempted to estimate additional functional loss during flare ups but asking the Veteran specific questions. See Sharp, supra. This claim must also be remanded so the examiner can attempt to estimate additional functional loss during flare ups. See Barr, supra. 4. Entitlement to a rating in excess of 10 percent for residuals of a right femur fracture is remanded. As the new examination for the left and right weak quadriceps muscles claims may provide additional information regarding the Veteran's residuals of a right femur fracture, these issues are inextricably intertwined. This claim must also be remanded. 5. Entitlement to a TDIU is remanded. The Veteran claims that he is unemployable due to his right and left lower extremity and low back disabilities. As such, a decision on the remanded increased rating issues could significantly impact a decision on the issue of TDIU. The issues are inextricably intertwined and a remand of the TDIU claim is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for examinations by an appropriate clinician to determine the current severity of his service-connected lumbar spine, left weak quadriceps muscle, right weak quadriceps muscle, and residuals of a right femur fracture disabilities. 2. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. Specifically, the examiner should complete all examinations necessary to fully evaluate all symptoms of the conditions on appeal. 3. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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). 4. 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). 5. The examiner should also specifically describe the level of functional loss due to pain on motion, preferably in terms of range of motion. If they are unable to do so, they should explain why. With regard to the low back: a) the examiner must state whether the Veteran's complaints of radiating pain to the buttocks constitutes radicular pain or a sign or symptom of radiculopathy. They must explain why or why not. With regard to the residuals of the right femur fracture, to include left and right weak quadriceps muscles: a) the examiner must identify ALL symptoms relating to the service-connected conditions. Specifically, the examiner should explain the manifestations of the right and left weak quadriceps muscles and any resulting functional impairment. b) The examiner should also identify all residuals of the right femur fracture and any resulting functional impairment. c) Finally, the examiner should provide a retrospective opinion of the December 2019 examination and report the degree of functional loss of the bilateral knees due to flare ups, if possible, preferably in terms of range of motion. If unable to provide retrospective testing, he or she should state why and provide a reasoned explanation for the determination. 6. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. (Continued on the next page) IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moore, 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.