Citation Nr: 21067851 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 09-41 803 DATE: November 5, 2021 ORDER An initial compensable rating for a right knee scar is denied. A total disability rating based on individual unemployability (TDIU) from November 19, 2008, to October 22, 2009, is granted. REMANDED Entitlement to an initial rating for a back disability in excess of 20 percent is remanded. Entitlement to an initial compensable rating for a right lower extremity neurologic disability associated with the back disability is remanded. Entitlement to an initial compensable rating for a left lower extremity neurologic disability associated with the back disability is remanded. Entitlement to an initial rating for a right knee disability, status post partial medial meniscectomy, in excess of 10 percent is remanded. Entitlement to an initial rating for a right ankle disability in excess of 10 percent is remanded. Entitlement to an initial compensable rating for an abdominal incisional hernia is remanded. FINDINGS OF FACT 1. The Veteran has a single right knee scar that is not painful or unstable, does not result in functional impairment, is not associated with underlying tissue damage, and measures less than 144 square inches (929 square cm). 2. Prior to October 22, 2009, the Veteran had multiple service-connected disabilities with at least one rated 40 percent or more and a combined rating of at least 70 percent; and he was precluded from substantially gainful employment consistent with his history due to service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for a right knee scar are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.118, Diagnostic Codes 7801 to 7805 (2017 & 2020). 2. The criteria for a TDIU November 19, 2008, to October 22, 2009, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1990 to November 2003 and August 2005 to November 2008. The Board previously remanded these issues in May 2012. At that time, the Board found that the issue of entitlement to a TDIU prior to October 20, 2009, when the Veteran was already in receipt of a 100 percent combined rating, was raised as part and parcel of the underlying appeals for a higher initial rating. Those appeals proceeded from his July 2008 claims. Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Initial compensable rating for a right knee scar disability VA's percentage ratings are based on the average impairment of earning capacity as a result of service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The most relevant information in determining the appropriate initial disability rating pertains to the severity of the disability since the effective date of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings may be awarded if there are decreases or increases in symptomatology the meet the criteria for a different rating for a distinct period during the appeal period. Id. In this case, the evidence shows one right knee surgical scar. Potentially applicable diagnostic codes are set forth in 38 C.F.R. § 4.118, Diagnostic Codes 7801 to 7805 (2017 & 2020). Although the rating criteria for scars were amended effective August 13, 2018, during the course of this appeal, they are essentially the same as relevant to this Veteran's case, and neither version is more favorable. Although the last medical records in the file are dated in 2017, and the last VA examination for the Veteran's right knee scars was in 2012, there is no argument or suggestion that he has any symptoms related to the scar itself. Therefore, a remand is not needed to obtain updated records or another examination for this condition. In particular, there were no complaints or notations specific to the Veteran's right knee scar in his VA treatment records or records obtained from the Social Security Administration (SSA), although symptoms for scars in other areas were noted for treatment. It is reasonable to assume that if the Veteran experienced noticeable symptoms for his right knee scar, he would have reported them or they would have been found on examination for treatment. He also has not reported right knee scar symptoms for his claim. Furthermore, VA examinations in November 2009 and September 2012 showed that the Veteran's right knee scar, which is at the superior aspect of the right knee above the patella or kneecap, is not painful or unstable as required for a 10 percent or higher rating under DC 7804. The wound is well healed and there was only one incisional scar found, which was not tender or painful. There is also no suggestion that it is a "deep" scar or is associated with underlying soft tissue damage as required for a 10 percent rating under DC 7801. Thus, the scar is "superficial" or not associated with underlying soft tissue damage, and it does not measure at least 144 square inches (929 square cm) as required for a 10 percent rating under DC 7802. Instead, the scar is very small and measured less than 1 cm by 1 cm, or 0.3 by 1.0 cm, or less than 1 square cm. Finally, there is no suggestion of disabling effects due to the right knee scar itself as required for a rating under DC 7805. Therefore, a compensable rating is not warranted under either version of the codes. In summary, the preponderance of the evidence is against a compensable rating for the right knee scar. There is no reasonable doubt to resolve in the Veteran's favor, and the appeal is denied. 2. TDIU prior to October 22, 2009 In October 2009, during his pending appeal, the Veteran requested unemployability due to service-connected disabilities and reported that he had not worked since November 19, 2008, when he was medically discharged from service. A TDIU will be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, a schedular percentage threshold must be met. If there is only one service-connected disability, it shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. However, VA may still grant TDIU on an extraschedular basis if this threshold is not met if the evidence shows unemployability due to service-connected disabilities. 38 C.F.R. § 4.16. In determining unemployability, there is an economic component, which includes whether any employment was marginal, and a non-economic component, which includes mental and physical capacity based on occupational history, education, skills, and training. See Ray v. Wilkie, 31 Vet. App. 58 (2019). Consideration should be given to prior education, training, and work experience, but not to age or impairment from nonservice-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Gleicher v. Derwinski, 2 Vet. App. 26 (1991); Pederson v. McDonald, 27 Vet. App. 276 (2015). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the question is whether the Veteran is capable of performing the physical and mental acts required by employment. Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011). All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In this case, the Veteran has met the schedular threshold with one disability for TDIU purposes rated at least 40 percent and a combined rating of at least 70 percent effective since November 19, 2008, the date after his discharge from active duty, based on his July 2008 claims for service connection. Prior to October 22, 2009, he was rated 50 percent for posttraumatic stress disorder (PTSD), effective November 19, 2008; and his other disabilities combined for an 80 percent rating. Prior to October 22, 2009, the Veteran was also service-connected for a back disability rated 20 percent, a right knee disability rated 10 percent, and a right ankle disability rated 10 percent, all effective since November 19, 2008, and which are remanded below. He was also service-connected with 10 percent ratings each effective since November 19, 2008, for peripheral neuropathy of the right and left lower extremities (toes) associated with his cancer residuals. The Veteran was also service-connected with noncompensable (0 percent) ratings effective since November 19, 2008, for colon cancer residuals status post total abdominal colectomy (including esophageal reflux), peripheral neuropathy of the left and right upper extremities (fingers) associated with his cancer residuals, left and right lower extremity sciatic nerve disorders associated with his back disability (which are both remanded below), dermatomycosis tinea (a skin disorder), abdominal incisional hernia (which is remanded below), and erectile dysfunction. The Veteran's PTSD rating was increased to 100 percent effective October 22, 2009, then reduced to 70 percent effective December 8, 2015. His skin disorder was increased to 60 percent effective November 27, 2009. His cancer residuals were increased to 30 percent, and his right and left upper extremity peripheral neuropathy were increased to 10 percent each, effective October 22, 2009. The Veteran has had a combined 100 percent rating, effective since October 22, 2009, and the prior Board decision found that a TDIU was on appeal prior to that date. A TDIU is not moot if it can be granted based on a single disability, such that he would be entitled to special monthly compensation based on single disability rated 100 percent (to include based on TDIU) and other disabilities that combine to at least 60 percent. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010); 38 U.S.C.§ 1114(s); 38 C.F.R. § 3.350(i). As there is no argument that the Veteran has been unemployable for VA purposes based on a single disability since October 22, 2009, TDIU entitlement is moot for that period. In July 2008, the SSA found the Veteran disabled effective since April 2007 due to a primary disability of status post total abdominal colectomy, or colon cancer residuals, and secondary disability of status post incisional hernia repair. The Veteran asserted for this claim that his colon cancer and colon removal, back problems, and depression limited his ability to work. He reported being unable to sit, stand, bend, or walk for extended periods, and that he had been on medical hold doing no work since April 2007. The Veteran reported a prior work history as an ammunition technician from in the Army 1990 to 2003 and as an armed guard for an armored car from 2004 to 2005, which involved heavy lifting. An SSA disability determination is not binding on VA, but it is considered along with other evidence. In an October 2009 formal claim for TDIU (VA Form 21-8940), the Veteran asserted that all of his service-connected conditions had rendered him unemployable since November 19, 2008. He reported prior employment during the last five years as with the U.S. Army and education through one year of college. The Veteran's service records reflect that he served as an ammunition specialist. He was classified as seriously ill or injured in May 2007 due to an abdominal hernia and colon cancer. He underwent surgery and was placed on convalescence leave upon discharge from the hospital, and a Medical Evaluation Board was initiated in June 2008. In September 2008, he was placed on the Permanent Disability Retirement List, and he was scheduled for discharge effective November 8, 2008. Orders in September 2008 note that he was discharged due to physical disability. Prior to service discharge, a September 2008 VA examination noted that the Veteran had a total colectomy in April 2007, with followup surgeries through August 2007, and he did well after that operation and had bowel movements that varied between 4 and 10 times per day. Chemotherapy for his colon cancer was completed in February 2008, and he developed neuropathy post-treatment in his fingers and feet. The Veteran developed a hernia post-operatively, and he underwent a repair of a large ventral incisional hernia in May 2008. He had a small remaining hernia above the superior edge of the incision in the midline, which was mildly symptomatic and reducible. The Veteran had gained 35 pounds in the past year following major weight loss during the time of his surgery, and he had no nausea or vomiting. The examiner stated that the Veteran's ileoproctostomy related to his colectomy was functioning well. He ate two meals per day and generally had 4 bowel movements daily, with 8 to 10 bowel movements once a month, which was a major problem for him going back to work or school. The Veteran had discontinued using Imodium because it did not help his diarrhea. He had lower abdominal cramping pain with gas and bloating, which was relieved by bowel movements. The examiner noted that the Veteran had been unable to work because of the fatigue secondary to chemotherapy, but he planned to go to school to study counseling for oncology patients after discharge from service. He would need to be close to a bathroom on a permanent basis. The examiner also noted that the Veteran had been diagnosed with gastroesophageal reflux (GERD) in 2006, which was treated with Prilosec, but he had discontinued that treatment because it was of little help. He continued to have reflux once per month. The examiner stated that the Veteran's reflux problem was very mild and would not interfere with his work or home life, and his general state of health was good. The Veteran avoided heavy lifting due to his huge midline incision and the remaining midline hernia above the area of hernia repair. His prior gastroparesis, which was present during his initial small bowel obstruction, had disappeared and was no longer symptomatic. In October 2008, the Veteran also reported chronic back pain and peripheral neuropathy in his feet and fingers on both hands for his pending VA claim. A November 19, 2008, VA treatment record (the day after service discharge) noted report of back pain that started in August 2007 after chemotherapy for colon cancer and had increased pain since that time. The provider noted that the Veteran had "very major limitations" with his abdominal musculature because of the mesh placed (with hernia repair). He did not do any type of abdominal strengthening and avoided bending, stooping, and lifting activities. The Veteran reported that his current back pain was a constant aching pain that was aggravated by walking for 5 minutes or more, when he would have pain radiating to the buttocks, left greater than right, and occasionally into the posterior thigh. He also occasionally had numbness in his feet. He was limited to sitting for 15 to 20 minutes due to pain. Upon examination, the Veteran had limited range of motion of the thoracolumbar spine (back), straight leg raising (SLR) test showed very little tightness of the hamstrings, and neurological examination of the lower extremities was symmetric except for absence of both Achilles reflexes. There was normal strength and muscle tone, nad sensation was grossly intact. The Veteran was a candidate for additional therapy including possibly an aquatic strengthening program and injections, pending the results of x-rays and an MRI for the spine. He was taking cyclobenzaprine, oxycodone, and acetaminophen several times daily for pain. A January 2009 VA treatment record noted that the Veteran's back pain was still present when he stood for any length of time, and he could walk less than 100 yards with radiation of symptoms down the lower extremities, left greater than right. He was told to continue wearing his lumbosacral corset, was ordered an epidural injection, and was given a refill of oxycodone/acetaminophen for pain. A February 2009 record noted increased leg and back pain after the Veteran twisted his back while walking three weeks earlier, and oxycodone was not helping enough. He was wearing a Velcro body brace and was a candidate for a plastic body or shell to decreased motion involving his lumbar spine. The Veteran's oxycodone/acetaminophen prescription was renewed, gabapentin was added due to increased leg pain, and another epidural steroid injection was scheduled. A March 2009 mental health record noted that the Veteran was seen for complaints of increased anger and irritability, which had most affected his relationships with his fiancée and their 4.5 year old son. He had lost physical control in a recent fight with his fiancée, and he reported having increasing pain that led to difficulty sleeping, which he believed had resulted in his inability to control his anger. A May 2009 record noted that the Veteran's major problem was still his low back with radiation to the left leg, although his brace and medications were helpful. Another May 2009 record noted problems with diarrhea due to having no colon. Treatment records in September 2009 noted that the Veteran was having increasing back pain and night sweats that may be related to that pain, he was taking oxycodone or Percocet for pain, and he did not want back surgery as offered by neurosurgery. An October 2009 treatment record then noted that the Veteran's back pain was basically unchanged, and he had good and bad days. A November 2009 VA examiner opined that the Veteran's back pain, peripheral neuropathy and sciatica (neurologic impairment) in the bilateral lower extremities, gastrointestinal condition, left upper extremity neurological impairment, right knee, and right ankle disabilities (along with a nonservice-connected neck condition) would prevent him from pursuing physically demanding employment. However, the examiner opined that the Veteran could maintain sedentary positions if he were allowed to change positions often and unlimited bathroom breaks. Considering the available evidence, from November 19, 2008, until prior to October 22, 2009, the Veteran's employment history primarily involved physically demanding positions. Although he had one year of college, the evidence does not establish that he had experience or skills to obtain or maintain a non-physically demanding position to that point. Thus, resolving reasonable doubt in his favor, he was unemployable for VA purposes due to service-connected disabilities. Accordingly, a TDIU is granted since service discharge prior to October 22, 2009. (CONTINUED ON NEXT PAGE) REASONS FOR REMAND 3. through 8. Entitlement to an initial rating for a back disability in excess of 20 percent; an initial compensable rating for a right lower extremity neurologic disability associated with the back disability; an initial compensable rating for a left lower extremity neurologic disability associated with the back disability; an initial rating for a right knee disability, status post partial medial meniscectomy, in excess of 10 percent; an initial rating for a right ankle disability in excess of 10 percent; and an initial compensable rating for an abdominal incisional hernia are remanded. As directed in the prior remand, VA obtained the Veteran's treatment records from multiple facilities dated from 2010 through 2017, as noted in the 2012 and 2017 supplemental statements of the case (SSOCs), and provided VA examinations. Unfortunately, due to procedural delays, the last VA treatment records in the file are dated in 2017, and the Veteran last received VA examinations for his disabilities in September 2012. It is apparent that he continues to receive VA treatment, and such records may assist in substantiating these claims. VA also has a duty to provide a contemporaneous medical examination with consideration of relevant evidence. Thus, a remand is needed for updated records and examinations. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from all relevant facilities (to include as identified in the May 2017 SSOC evidence section) dated since May 2017. 2. Thereafter, provide the Veteran with VA examinations from appropriate clinicians to determine the current nature and severity of his back disability and associated lower extremity sciatic nerve disabilities; his right knee disability; his right ankle disability; and his abdominal incisional hernia. For the lower extremity neurologic disorders, the examiner should identify which symptoms (if any) are related to his back disability and which symptoms are related to his separately service-connected bilateral lower extremity peripheral neuropathy related to cancer treatment. If the symptoms cannot be distinguished, the examiner should explain why. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wheatley 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.