Citation Nr: 21066458 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-48 769 DATE: November 1, 2021 ORDER From June 13, 2013, entitlement to an initial rating of 20 percent, but no higher, for scars of the left lower extremity, residuals of coronary artery bypass graft surgery, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU), prior to March 5, 2019, is remanded. FINDING OF FACT The Veteran has four scars of the left lower extremity that are painful; his scars are not unstable, and he does not have five or more scars. CONCLUSION OF LAW From June 13, 2013, the criteria for an initial disability rating of 20 percent, but no higher, for scars of the left lower extremity, residuals of coronary artery bypass graft surgery, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1967 to May 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) from September 2013 and September 2020 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2018 and June 2021, the Board remanded these claims for additional development. 1. Entitlement to an initial compensable rating for scars of the left lower extremity, residuals of coronary artery bypass graft surgery. Service connection for residual surgical scar, status post coronary artery bypass graft was granted in a September 2013 rating decision; however, only a surgical scar on the anterior trunk was noted. A notice of disagreement with the decision was received in October 2013. In a December 2018 Board decision, the Board noted that medical records indicate the Veteran had incisions to the chest and left leg during the June 2013 cardiac procedure, however, the September 2013 rating decision only discussed the scar of the chest. The issue was remanded in December 2018 to afford the Veteran a VA examination that identified and discussed all identified scars related to the service-connected coronary artery disease. In a September 2020 rating decision, the RO granted service connection for scars of the left lower extremity, and assigned a noncompensable rating, effective June 2013. In a June 2021 Board decision, entitlement to an increased rating for the chest scar was denied, and the Board indicated that the issue of entitlement to a compensable rating for the left leg scar remained on appeal. The appeal for a compensable rating for the left leg scar was remanded for the RO to issue a supplemental statement of the case. A supplemental statement of the case was issued in July 2021. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arises from the initially assigned rating, consideration must be given as 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). Moreover, staged ratings are 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). The Board has considered the entire record, including the Veteran's VA clinical records and private treatment records. These show complaints and treatment but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. The Veteran's left leg scars disability is currently rated under Diagnostic Code 7805 for other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7805 was not changed by the August 13, 2018 amendments. Diagnostic Code 7805 instructs to evaluate any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate Diagnostic Code. The Veteran was afforded a VA examination in June 2019. The Veteran reported increased pain in the left lower extremity scars where the saphenous vein was harvested for his coronary artery bypass graft when his leg swells with venous stasis disease. The scars were described as healed and stable, without loss of covering and have no depression, elevation, or loss of underlying tissue. Physical examination revealed four scars of the left lower extremity, without underlying tissue damage, with an approximate total area of 13.35 centimeters squared. Scar one was located on the medial aspect of the left leg, proximal to the medial malleolus; it was stable and nontender, not elevated or depressed, no loss of underlying tissue, but was hypopigmented. It was 3 centimeters by 0.2 centimeters. Scar two was located on the medial aspect of the left leg in the mid-calf area of the gastrocnemius muscle. It was stable and nontender, mildly hypopigmented, not elevated or depressed and no loss of tissue. It measured 10 centimeters by 0.4 centimeters. Scar three was on the medial aspect of the left leg in the infra-geniculate region distal to the knee joint. It was stable and nontender, hypopigmented, not elevated or depressed and no loss of underlying tissue. It measured 2.5 centimeters by 0.7 centimeters. Scar four was located on the left lower extremity on the medial aspect of the mid-thigh. It was stable and nontender, hyperpigmented, not elevated or depressed and there was no loss of underlying tissue. It measured 7 centimeters by 1 centimeter. The Veteran reported that during flare-ups, the pain from the scars distracts and impairs his concentration. The examiner explained that the Veteran does not have pain, per se, on examination but he has tenderness in his left lower extremity scars when his lymph edema stretches the scars. A review of the evidence indicates that the predominant disabling effect of the Veteran's left leg scars is pain or tenderness. Under Diagnostic Code 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating. Three or four scars that are unstable or painful scars warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. Note 2 instructs that if one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Diagnostic Code 7804 was not changed by the August 13, 2018 amendments. Resolving all reasonable doubt in favor of the Veteran, the Board finds he is entitled to a rating of 20 percent, but no higher, for his left leg scars, under Diagnostic Code 7804. As noted in the June 2019 VA examination, the Veteran described that his four scars of the left leg are painful, and the VA examiner indicated that the Veteran's scars become tender when his leg swells. Flare-ups caused the pain from his scars to be distracting and impaired his concentration. A rating higher than 20 percent is not warranted, however, as there is no evidence that his scars are both unstable and painful, and there is no indication that he has five or more scars that are unstable or painful. The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran's left leg scars disability is not of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage. Although the scars are superficial and not associated with underlying soft tissue damage, they do not cover an area or areas of 144 square inches or greater. Therefore, Diagnostic Codes 7800, 7801, and 7802, both prior to and from August 13, 2018 are inapplicable. Additionally, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating for the Veteran's left leg scar disability under Diagnostic Code 7805 as there are no other disabling effects not considered in a rating provided under Diagnostic Codes 7800-04. The Board acknowledges that the Veteran is competent to report observable symptoms, to include pain, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Of note, these reports of pain have been considered in granting the now assigned 20 percent rating. However, the Veteran does not assert, and the medical records do not show, that the Veteran's left leg scars disability is manifested by three or four scars that are both unstable and painful or five or more scars that are unstable or painful. In conclusion, the Board finds that the Veteran's symptoms more nearly approximate a 20 percent rating, but no higher, under Diagnostic Code 7804, from June 13, 2013, the date of his surgery. In so finding, the Board has resolved all reasonable doubt in favor of the Veteran. REASONS FOR REMAND 2. Entitlement to a TDIU, prior to March 5, 2019. The Veteran seeks entitlement to a TDIU. The Board notes that the Veteran is in receipt of a 100 percent rating since March 5, 2019 and receives special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) since March 5, 2019. Therefore, there remains no time during the period from March 5, 2019 where the schedular rating is "less than total" and the Veteran is not already in receipt of SMC under 38 U.S.C. § 1114 (s). As such, the issue of entitlement to a TDIU, from March 5, 2019, is moot and need not be addressed. The issue on appeal has therefore been narrowed to entitlement to a TDIU, prior to March 5, 2019. 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. See 38 C.F.R. § 4.16. The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. The economic component requires a determination as to whether a Veteran's income exceeds the poverty threshold. The Board notes, by virtue of Rice v. Shinseki, this TDIU claim is part and parcel of the Veteran's increased rating claim for his service-connected coronary artery disease and stems from a September 2013 rating decision granting service connection for coronary artery disease, effective March 2011. Rice v. Shinseki, 22 Vet. App. 447, 453-4 (2009). Effective March 26, 2011, the Veteran is service connected solely for coronary artery disease, rated as 60 percent disabling. As such, the Veteran meets the schedular criteria for the period of time from March 26, 2011 to March 26, 2012, based on a single disability rated as 60 percent disabling. From March 26, 2012 to June 13, 2013, the Veteran is service connected for coronary artery disease, rated as 60 percent disabling; posttraumatic stress disorder (PTSD), rated 50 percent disabling; and diabetes mellitus, type 2, rated 20 percent disabling; for this period, he has a combined rating of 80 percent. As such, the Veteran meets the schedular criteria for the period of time from March 26, 2012 to June 13, 2013. The Veteran is assigned a 100 percent rating from June 13, 2013 to October 1, 2013, and he also received SMC under 38 U.S.C. § 1114 (s) for this period of time. From October 1, 2013 to March 5, 2019, the Veteran's coronary artery disease is rated as 60 percent disabling, PTSD as 50 percent disabling, diabetes mellitus, type 2, as 20 percent disabling, chest scar as 10 percent disabling, and left lower extremity scars as 20 percent disabling. His combined rating from October 1, 2013 to March 5, 2019 is 90 percent. Thus, other than the period of a temporary total rating, the Veteran is eligible on a schedular basis for a TDIU, from March 26, 2011. Regarding the economic component of TDIU, the Veteran indicated on his September 2021 VA Form 21-8940 that he has not been employed since June 2002; however, there is conflicting evidence in the claims file. For example, a September 2014 VA treatment record indicates the Veteran reported he was working and actively running a marina and records indicate he continued to receive mail at the marina from at least 2014 to 2018. See, e.g., December 2018 VA treatment note. On remand, the Veteran should clarify his dates of employment, to include whether he may have been marginally employed at any point during the period on appeal. The matters are REMANDED for the following action: Request that the Veteran clarify the dates of his employment prior to March 2019, to include whether he was employed at a marina from approximately 2014 to 2018. Provide the Veteran with a VA Form 21-8940, Application for TDIU and request that he submit the completed form; in particular, the Veteran must provide the dates and information pertaining to ALL employment prior to March 2019. If applicable, the Veteran should also provide evidence to support any assertions that his previous work represented marginal employment. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.