Citation Nr: 21069214 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 18-27 236 DATE: November 17, 2021 ORDER A separate rating for disfigurement for status-post shrapnel wound is granted. A rating in excess of 10 percent for status-post shrapnel wound other than disfigurement is denied. REMANDED A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The shrapnel wound is associated with one characteristic of disfigurement but not loss of nose or nasal deformity, septal deviation, or swelling. CONCLUSIONS OF LAW 1. The criteria for a separate 10 percent rating for disfigurement have been met. 38C.F.R. §§4.118, Diagnostic Codes 7800. 2. The criteria for a rating in excess of 10 percent for status-post shrapnel wound to the face other than disfigurement have not been met. 38C.F.R. §§4.118, Diagnostic Codes 7804, 6502, 6504. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active service from October 1966 to September 1990, including combat service in Republic of Vietnam and his decorations include the Combat Infantryman Badge. The Veteran testified at a Board Hearing in February 2020 before the undersigned Veterans Law Judge. This matter was previously before the Board, most recently in June 2021. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, regulations require that where there is a question as to which of two evaluations is to be applied, 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. A November 2005 ENT treatment record reports that the Veteran had normal nose. June 2015 VA treatment record reports that the septum was in midline June 2015 VA radiographic imaging showed small piece of shrapnel in the right body of the mandible and in the right axilla. A March 2017 VA "scar" examination record reports that the Veteran did not have any scars or disfigurement of the head, face, or neck. The examiner reported that there was no evidence of any visible scar. A March 2017 VA "muscle injury" examination record reports history of shrapnel wound to the right side of the sinus. The Veteran reported constant swelling at the side of the face where the shrapnel is located and clogged right nostril. The examiner noted that there was no history of injury to the facial muscles. There was no scar or fascial defect associated with muscle injury, and the injury did not affect muscle substance or function. The examiner found no symptomatology on examination. June 2017 VA X-ray imaging revealed mild rightward septal deviation. June and July 2017 VA treatment record reveals the Veteran's history of trouble breathing through the nose, right worse than left. He reported that the breathing problem began in service. He reported "some discomfort" and "some swelling" on the right side of the face. The examiner noted slight swelling of right side of the face/maxilla. The record reports diagnoses of deviated nasal septum and rhinitis. A December 2017 VA treatment record reports that the Veteran had deviation of the nasal septum to the right. The February 2020 Board hearing transcript reveals the Veteran's history of swelling on the right side of the face since the in-service shrapnel. He also reported closure of the right nostril. He denied pain of the scar or area of the wound (other than to look at) and reported that he found it disfiguring. The Veteran testified that a 10 percent rating would satisfy his appeal. An August 2021 VA "scar" examination record reveals diagnosis of facial shrapnel wound scar. The record reports that the Veteran denied visible scarring. The examiner determined that a "tiny" scar was visible by folding the nose to the left to expose it in the right nasal fold. The scar was not painful or unstable. The scar was noted to measure 0.2 centimeter by 0.1 centimeter. The surface contour was depressed on palpation. The scar was not adherent, the underlying soft tissue was not missing, and there was no pigmentation abnormality, induration, inflexibility, or abnormal texture. There was not gross distortion or assymetry of facial features or palpable tissue loss. The scar did not result in limitation of function. An August 2021 VA "muscle injury" examination record reveals the Veteran's history of breathing problems involving the right nostril and generalized puffiness of the right side of the face. The examiner stated that the puffiness was not notable on examination. The record reports that the Veteran did not have a muscle injury. The examiner found no objective evidence to indicate a current diagnosis for the claimed condition. The examiner noted that the Veteran denied any previous or current muscle damage. The August 2021 VA examiner determined it was unlikely that the Veteran suffered any significant longterm problems related to the shrapnel wound. The examiner noted that examination was normal except a tiny scar and recent radiographic imaging showed only a tiny residual shrapnel particle. The examiner found no evidence of lasting damage and no evidence of septal deviation due to the shrapnel wound, noting that the nasal septum was normal in 2015. The status-post shrapnel wound is rated at 10 percent under Diagnostic Code 7804 per a February 2020 Board decision. The rating was assigned pursuant to a Board determination that the Veteran had competently reported pain on the right side of the face at the February 2020 hearing. The February 2020 hearing transcript indicates that the Veteran denied painful scar but reported discomfort when he looked at "it." After consideration of the record, the Board finds a higher rating is not warranted under Diagnostic Code 7804 because the evidence indicates that there are fewer than three scars associated with the shrapnel wound. However, a separate 10 percent rating is warranted under Diagnostic Code 7800 based on the 2021 VA examiner's determination that the surface contour of the scar is depressed on palpation. A higher rating is not warranted under Diagnostic Code 7800 because there is no evidence of more than one characteristic of disfigurement (the scar is not the requisite length and is not adherent), gross asymmetry, or tissue loss. The Board has considered whether a higher or separate rating is warranted under an alternate diagnostic code. The record is absent any evidence of loss of part of the nose or obvious deformity of the nasal structure which could warrant a rating under Diagnostic Code 6504. Notably, service and VA clinical and examination records reveal no such deformity, and the Board notes that the nose was explicitly noted to be normal in September 1980, March 1987, June 1990, and November 2005. A separate rating is also not warranted under Diagnostic Code 6502, which rates traumatic septal deviation. Although the record indicates that the Veteran currently has septal deviation, the 2021 VA examiner determined the septal deviation was not the result of the in-service shrapnel wound, noting that clinical evaluation revealed normal septum in 2015. The Board finds the 2021 VA examiner's determination is most probative as to whether the deviated septum is a residual of the shrapnel wound because it is based on review of the record and is supported by a rationale that is consistent with the record. Finally, the Board finds a separate or higher rating is not warranted based on the reported swelling. Although the Veteran has reported swelling, he is not competent to attribute the reported swelling to the in-service shrapnel wound and the Board finds the probative evidence indicates that there is no such link. Notably, the Board finds the 2021 VA examiner's determination that there is no lasting damage or significant longterm problem from the shrapnel wound is probative evidence that the reported swelling, which was considered by the examiner, is not associated with the in-service shrapnel wound. In making this determination, the Board notes that the service treatment records do not suggest any swelling at the site of the wound and that there is only one clinical finding of slight swelling (in July 2017). REASONS FOR REMAND TDIU In February 2020, the Board determined the issue of entitlement to a TDIU had been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) at the February 2020 Board hearing and remanded the matter for additional development, including for the notice of the Veteran's responsibilities to provide evidence and information in support of a claim for TDIU. In a June 2020 letter, the RO informed the Veteran that he may be entitled to compensation at the 100 percent rate if he is unable to secure and follow a substantially gainful occupation because of service-connected disabilities. The letter further directed the Veteran that "[i]f you believe you qualify, complete, sign, and return the enclosed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability." In the July 2020, Supplemental Statement of the Case (SSOC), VA informed the Veteran and representative that the Veteran had not submitted a VA Form 21-8940. In October 2020, the Board remanded the matter to provide the Veteran additional opportunity to submit a VA form 21-8940 or a comparable statement containing the information requested by the form. In a November 2020 letter, the RO again informed the Veteran that he may be entitled to compensation at the 100 percent rate if he is unable to secure and follow a substantially gainful occupation because of service-connected disabilities and directed the Veteran that "[i]f you believe you qualify, complete, sign, and return the enclosed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability." In a December 2020 SSOC, VA informed the Veteran and representative that the Veteran had failed to submit the requested information. The Board then remanded the matter again in June 2021 due to a concurrent need to remand an increased rating claim. VA issued another letter in June 2021 information the Veteran of the need to submit the requested information. The Veteran has not responded. In a September 2021 brief, Veteran's representative contended that the appellant "may have mitigating circumstances for not sending the completed form." In light of the above grant of a separate rating for scarring and the allegation of potentially mitigating circumstances, the Board finds the matter should be again remanded to allow the Veteran the opportunity to submit a VA form 21-8940 or comparable statement. The Veteran is again informed that the information is critical and a failure to provide the information may result in denial due to abandonment of the claim. See 38 C.F.R. § 3.158; see also Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). The matters are REMANDED for the following action: 1. Request the Veteran to provide VA with a completed VA Form 21-8940, (Veteran's Application for Increased Compensation Based on Unemployability). 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the impact of the service-connected disabilities on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Snyder, 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.