Citation Nr: 21069040 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 20-08 041 DATE: November 17, 2021 ORDER The claim of entitlement to an initial disability rating in excess of 10 percent for residual burn scars to the face is denied. REMANDED The claim of entitlement to an initial compensable disability rating for residual burn scars to both forearms, to include any related burn scar to the chest, is remanded. The claim of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT 1. The Veteran's residual burn scars to the face are not manifest by visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or two or three characteristics of disfigurement. CONCLUSION OF LAW 1. The criteria for a disability rating in excess of 10 percent for residual burn scars to the face and cheeks have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code (DC) 7800. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service in the United States Army from October 1965 to September 1967. These matters are before the Board of Veterans' Appeals (Board) on appeal from a October 2018 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In March 2019, the Veteran filed a RAMP Opt-in Election form, which was rejected in a March 2019 notification letter. The Veteran was given the opportunity to send in the correct form, but he did not respond. Therefore, the appeals have remained in the Legacy system. For procedural clarity, the Board notes that it issued two separate remand decisions in February 2021, as multiple appeals reached the Board in two separate appeal streams. The decision issued on February 18, 2021 addressed the claims for increase that are the subject of the instant decision, along with the claim of entitlement to a TDIU, which the Board found inextricably intertwined with the claims for increase. These claims were docketed under Legacy appeal stream number 20-08 041. On February 25, 2021, the Board remanded multiple claims of entitlement to service connection, which were part of a separate appeal stream under Legacy docket number 20-05 393. Although the TDIU claim was included only in the instant appeal stream (docket 20-08 041, remanded on February 18), the Board directed the RO to "readjudicate the issue of TDIU once all remanded issues within both appeal streams have been readjudicated." On remand, the RO nearly followed this directive when it issued a Supplemental Statement of the Case (SSOC) in June 2021, which readjudicated only the claims for increase regarding the residual burn scars. However, in July 2021, the RO issued a "corrected" SSOC, in which it added (and denied) the TDIU appeal. This readjudication contradicted the Board's prior remand directives, as the AOJ is still in the process of developing the multiple service connection claims (under docket number 20-05 393). Further, the Board directed the VA examination to include evaluation of whether the Veteran had a burn scar on his chest, citing a November 2017 private treatment record. On remand, the examiner made no comment as to the existence of a chest scar, and "deferred" to the RO for rating of this and the bilateral forearm scars. See June 2021 Medical Opinion. The RO did not specifically address this question in its SSOCs (although it repeatedly notes that the Veteran's initial claim concerned burn scars of the "face, chest, and arms"), and photographs taken of the Veteran do not include photographs of his chest or trunk. Given this history, the Board concludes that there has only been substantial compliance with its prior remand directives as to the claim for increase regarding the residual burn scars of the face, and that remand is necessary to fully address burn scars of the extremities and trunk, as well as the intertwined TDIU appeal. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.902(c). INCREASED RATING Generally, disability evaluations are determined by the application of the 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. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 1. The claim of entitlement to an initial disability rating in excess of 10 percent for residual burn scars to the face. The Veteran contends that he is entitled to a higher initial disability rating for residual burn scarring to his face. The Veteran's facial burn scar is rated under DC 7800, for burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. Under DC 7800, one characteristic of disfigurement warrants a 10 percent rating. A scar with 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 warrants a 30 percent rating. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement warrants a 50 percent rating. A scar with visible or palpable tissue loss and either gross distortion of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement warrants an 80 percent rating. 38 C.F.R. § 4.118. Note 1 to DC 7800 list the eight characteristics of disfigurement: a scar 5 or more inches in length; a scar at least one-quarter inch wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches; skin texture abnormal in an area exceeding six square inches; underlying soft tissue missing in an area exceeding six square inches; and, skin indurated and inflexible in an area exceeding six square inches. Note 2 specifies that unretouched photographs are to be taken into consideration when evaluating conditions under DC 7800. In this case, on remand the Veteran received an in-person VA medical examination in June 2021. The examiner noted that the Veteran had a residual burn scar to the left and right sides of his face on his cheeks. These facial scars were not painful, and the Veteran reported that the scars had not worsened over time. The examiner determined that the initial burn that caused the facial scars was "full thickness or sub-dermal." The examiner measured the scar on the right cheek to be 1.7 by 2 centimeters at its widest, and the left cheek scar to measure 3 by 2.2 centimeters. The examiner listed the approximate combined total area for the scars to be 10 centimeters squared. No elevation, depression, adherence to underlying tissue, or missing underlying soft tissue was noted with these scars, but each scar was hypopigmented. There was no gross distortion or asymmetry of facial features or visible or palpable tissue loss, and the scars did not result in limitation of function or motion. Color photographs were taken as part of the examination and support the examiner's descriptions. The Board finds this examination evidence probative based on the objective support found in the photographs and internal consistency of the examination findings. Further, the Veteran has not presented probative evidence to contradict the examination findings. The Board previously found an August 2018 VA examination not probative as it contained inconsistencies in the description of the size of the Veteran's face and forearm scars. Accordingly, the Board assigns no probative value to the findings of that examination regarding the size of the scars. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under the appropriate Diagnostic Code, 7800. Here, the probative medical examination evidence shows that the Veteran does not have visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or more than one characteristic of disfigurement. As the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve, and the appeal is denied. REASONS FOR REMAND 1. The claim of entitlement to an initial compensable disability rating for residual burn scars to both forearms, to include any related burn scar to the chest, is remanded. The Veteran contends entitlement to an initial compensable rating for his bilateral forearm scars. As outlined earlier in this decision, there is some discrepancy as to whether the Veteran has a related additional burn scar to his chest that was not identified during examination of the Veteran's trunk and extremities, as previously directed by the Board. As such, additional remand for complete medical examination of the Veteran's trunk (chest) and extremities is warranted. 2. The claim of entitlement to a TDIU is remanded. As noted earlier in this decision, the matter of entitlement to a TDIU is inextricably intertwined with the rating for the Veteran's forearm and trunk scars. Additionally, remand is necessary to comply with the Board's February 2021 remand directives, that the AOJ only readjudicate the issue of entitlement to a TDIU once all remanded issues within this appeal and within Legacy docket number 20-05 393 have been readjudicated and rated by the AOJ. The matters are REMANDED for the following action: 1. This appeal has been advanced on the docket. 2. Schedule the Veteran for an examination and obtain opinions as to the following: 3. Evaluate the existence and severity of any residual burn scars to the Veteran's chest and trunk. See November 2017 private treatment record, received January 2018. Complete an updated Scars Disability Benefits Questionnaire (DBQ) to include any additionally identified residual burn scars to the trunk and chest. The examiner should include color photographs of any identified chest/trunk burn scars. The examiner shall specify any corrections or changes to the previous examination findings made in June 2021. For completeness, the examiner shall include all confirmed measurements regarding the Veteran's face and forearms in the updated DBQ. 4. Pursuant to the Board's February 2021 remand directives, the AOJ should readjudicate the issue of entitlement to a TDIU once all remanded issues within this and Legacy docket appeal stream number 20-05 393 have been readjudicated and rated by the AOJ. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, 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.