Citation Nr: 21072371 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 14-26 454 DATE: December 2, 2021 ORDER Entitlement to a compensable rating for lumbar spine surgical scar associated with degenerative arthritis of the spine and herniated disc, status post spinal fusion, is denied. REMANDED Entitlement to service connection for a right foot disorder is remanded. Entitlement to service connection for a right ankle disorder is remanded. Entitlement to a rating in excess of 10 percent prior to April 30, 2021, and in excess of 20 percent from April 30, 2021, for right lower extremity radiculopathy, sciatic nerve associated with degenerative arthritis of the spine and herniated disc, status post spinal fusion is remanded. Entitlement to a rating in excess of 10 percent prior to April 30, 2021, and in excess of 20 percent from April 30, 2021, for left lower extremity radiculopathy sciatic nerve associated with degenerative arthritis of the spine and herniated disc, status post spinal fusion is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to October 2, 2017 is remanded. FINDING OF FACT The Veteran's lumbar spine surgical scar associated with degenerative arthritis of the spine and herniated disc, status post spinal fusion, is not painful or unstable and does not have a total area greater than 39 square centimeters (6 square inches). CONCLUSION OF LAW The criteria for a compensable rating for lumbar spine surgical scar associated with degenerative arthritis of the spine and herniated disc, status post spinal fusion are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of February 2013 and August 2017. One or more the appealed issues were remanded by the Board in March 2021, May 2018, and March 2016. In September 2019, the Veteran opted into the Veterans Appeals Improvement and Modernization Act of 2017 (AMA) as to the issues of entitlement to an increased evaluation for service-connected degenerative arthritis of the spine and herniated disc, status post spinal fusion, as well as the associated issue of entitlement to a TDIU, including on an extraschedular basis. By an order of January 2021, the Board denied entitlement to a rating in excess of 40 percent from June 25, 2019. The issues of entitlement to a rating in excess of 20 percent prior to June 25, 2019 and entitlement to a TDIU were remanded and will be addressed in a separate Board decision that applies the AMA. The Board notes that, on a VA Form 9 filed in August 2019, the Veteran stated that his appeal includes the issues of "earlier effective date for degenerative arthritis of the spine and herniated disc, status post spinal fusion, left lower extremity radiculopathy, right lower extremity radiculopathy and surgical scar." However, the NOD filed in November 2017, as well as the amended NOD of January 2018, indicated disagreement only with the evaluations, and not the effective dates, assigned for service-connected back disability, bilateral lower extremity radiculopathy, and surgical scar associated with spinal fusion. By not checking the form boxes on the NOD corresponding to "effective date of award," the Veteran specifically indicated that he did not wish to appeal the effective date determinations. The Board's January 2021 order noted that the Board did not have jurisdiction over the earlier effective date claims because they had not been adjudicated by the agency of original jurisdiction (AOJ). The Veteran was advised that he could resubmit the claims to the AOJ or notify the AOJ that the issues are still pending. A rating decision of August 2021 granted service connection for osteoarthritis of the left hip and the right hip, left knee meniscal tear, and right knee internal derangement. With service connection having been granted, those issues are no longer on appeal before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Increased Rating Disability ratings assigned in accordance with VA's Schedule for Rating Disabilities are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. A disability is identified by a diagnostic code (DC). 38 C.F.R. Part 4. Staged ratings are appropriate when the factual findings show distinct time periods in which the service-connected disability exhibited symptoms warranting different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The claimant must be given the benefit of the doubt as to any issue material to the determination of a matter when there is an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 1. Entitlement to a compensable rating for lumbar spine surgical scar associated with degenerative arthritis of the spine and herniated disc, status post spinal fusion. By correspondence of November 2011, VA acknowledged a September 2011 claim of entitlement to service connection for a back disorder. The claim had been previously denied by a rating decision of July 2003, which became final. By a decision of March 2016, the Board reopened and remanded the claim. Subsequently, a rating decision of August 2017 granted service connection for degenerative arthritis of the spine and herniated disc, status post spinal fusion, with an evaluation of 20 percent, effective September 12, 2011. Service connection was also granted for an associated surgical scar, for which a noncompensable rating, effective April 14, 2017, was established. The effective date was based on the VA examination showing that the Veteran had a scar resulting from spinal surgery that occurred in January 2017. In November 2017, the Veteran filed a NOD as to the assigned rating for the scar. A statement of the case (SOC) was issued in August 2019, and the Veteran filed VA Form 9 in September 2019. The Veteran is also service-connected for a surgical scar of the left knee associated with a left knee meniscal tear. A noncompensable evaluation was assigned from October 2, 2017. Generally, scars are evaluated pursuant to DCs 7800, 7801, 7802, 7804, and 7805. 38 C.F.R. § 4.118. Revised provisions for evaluating scars were enacted effective August 13, 2018. 83 Fed. Reg. 32,592 (July 13, 2018). The version of each regulation that is more favorable to the Veteran will apply to the extent permitted by the effective date of August 13, 2018. 38 U.S.C. § 5110. Under the prior version of DC 7801, scars not of the head, face, or neck that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrant a 10-percent rating. Note (1) to DC 7801 provided that a deep scar is one associated with underlying tissue damage. 38 C.F.R. § 4.118. The revised criteria changed the requirement that the scar be "deep and nonlinear" to "associated with underlying soft tissue damage." Otherwise, the rating criteria remain the same. 83 Fed. Reg. at 32598. Under the prior version of DC 7802, scars not of the head, face, or neck that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater warrant a 10-percent evaluation. Note (1) to DC 7802 provided that a superficial scar is one not associated with underlying soft tissue damage. Note (2) to DC 7802 provided that if multiple qualifying scars are present, a separate evaluation is assigned for each affected extremity based on the total area of the qualifying scars that affect that extremity. 38 C.F.R. § 4.118. The new rating criteria require the scar be "not associated with underlying soft tissue damage" rather than be "superficial and nonlinear." 83 Fed. Reg. at 32598. The only other revisions to DCs 7801 and 7802 involve the supplemental notes to those DCs. Note (1) now defines six zones of the body as each extremity, anterior trunk, and posterior trunk; and states that the midaxillary line divides the anterior trunk from the posterior trunk. Note (2) states that a separate evaluation may be assigned for each affected zone of the body under this DC if there are multiple scars, or a single scar, affecting multiple zones of the body. Separate evaluations should be combined under 38 C.F.R. § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under the diagnostic code. The rating criteria under DCs 7804 and 7805 were not changed by the revisions (only the header of DC 7805 was revised). DC 7804 provides for a 10-percent rating for 1 or 2 scars that are unstable or painful. Note (1) to DC 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. DC 7805 provides that other scars (including linear scars) and other effects of scars evaluated under DCs 7800-7804 require the evaluation of any disabling effect(s) not considered in a rating provided under DCs 7800-7804 under an appropriate diagnostic code. In April 2021, the Veteran underwent a VA examination for scars/disfigurement. He was found to have a scar on the posterior trunk (back) measuring 21 cm. x 0.3 cm. The approximate total area was 6.3 square centimeters. The scar was not painful or unstable. There was no underlying tissue damage and no current symptoms or treatment. It was determined that the back scar was well-healed and did not impact the Veteran's ability to work. Earlier VA examinations found the scar to measure 17 cm. x. 1 cm. (March 2021), 9 cm. x 0.4 cm. (August 2019), and 8 cm. x 0.2 cm (April 2017). Otherwise, the findings of those examinations were essentially the same as those of the April 2021 VA examination with respect to the relevant rating criteria. The VA examinations indicate that the back scar is not painful or unstable and does not have a total area equal to, or greater than, 39 square cm. (6 square inches). Entitlement to a higher, 10-percent rating for the Veteran's scar requires at least one characteristic of disfigurement, an area of at least 39 square centimeters under DC 7801, an area of at least 929 square centimeters under DC 7802, or unstable or painful scars under DC 7804. The surgical scar associated with spinal fusion has none of these characteristics. The Veteran is competent to report his experienced symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). His belief that his scar is more disabling than as indicated by the assigned rating is outweighed by the competent and credible medical examinations that evaluated the extent of impairment based on objective data coupled with statements of the Veteran. A VA examiner has the training and expertise to determine the type and degree of the impairment associated with the Veteran's scar, and greater evidentiary weight is placed on the physical examination findings. Because the preponderance of the evidence is against finding entitlement to a compensable rating at any time during the period under review, the claim must be denied. REASONS FOR REMAND 2. Entitlement to service connection for right foot disorder. In March 2012, the Veteran filed a service-connection claim for "fall pain/swelling/right foot." A rating decision of February 2013 denied service connection for a right foot condition. The Veteran filed a NOD in April 2013 and VA Form 9 in July 2014. A VA examination for foot conditions was conducted in April 2021. The diagnosis was calcaneal spurring of the right foot. The Veteran denied any complaints or treatment of a foot condition while in service and currently reported having developed right foot pain in 1999. In the opinion of the VA examiner, a nurse practitioner, the Veteran's current calcaneal spurring was less likely than not caused by an in-service injury. The rationale was that the calcaneal spurring as shown on a February 2013 x-ray accounted for the foot pain, and that the claims file showed no in-service foot injury, complaints, diagnosis, or treatments until 1999, when a complaint of foot pain was treated with orthotics. The Veteran argues in a statement of December 2014, and elsewhere in the record, that his fall from a truck during service causes a current right foot disorder. He references a service treatment record (STR) showing pain and swelling in the right foot in July 1971, which he asserts to be approximately the date of his fall from the truck. In a filing of March 2012, he states that his fall in 1971 hurt his foot and that he was advised at that time by the attending doctor to soak and wrap his foot. A VA examination and medical opinion must be adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The September 2019 VA examination report is not adequate, because the examiner based her negative nexus opinion, in part, on the supposed fact of no record evidence during service of a right foot injury. In fact, an STR of July 1971 notes the Veteran's complaint of pain and swelling of the right foot and treatment of "soaked and taped." An examination report that fails to consider a claimant's competent lay statements as to an in-service onset of symptoms is not adequate. See Miller v. Wilkie, 32 Vet. App. 249, 260 (2020). A medical opinion based on an inaccurate history has no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461. The Board will remand for a VA medical opinion that considers the Veteran's full and correct medical history. 38 C.F.R. § 19.9(a). A remand is also required for failure to follow the Board's previous remand directive, dated March 2021, that the examiner note injury shown in the Veteran's STRs and in the letters/statements that the Veteran submitted as evidence in March 2012, December 2014, and November 2017." In addition, there has not been compliance with the Board's March 2021 directive to make sufficient attempts to obtain and to provide the Veteran and his representative a copy of curriculum vitae (CV) of the April 2021 VA examiner for foot conditions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board required that the Veteran be given a copy of the CV of "any other examiner" who provides a nexus opinion for the right foot. 3. Entitlement to service connection for right ankle disorder. In March 2012, the Veteran filed a service-connection claim for "fall pain/swelling/right foot." A rating decision of February 2013 denied service connection for a right foot condition. The Veteran filed a NOD in April 2013 and VA Form 9 in July 2014. The Board determined in a March 2021 order, citing Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), that the right foot claim also encompasses a claim of entitlement to service connection for a right ankle disorder. In November 2017, the Veteran submitted, with respect to his right-ankle, general medical information of the Cleveland Clinic concerning posttraumatic arthritis. An October 2017 treatment record of Dr. T. K. indicates an impression, based on imaging, of degenerative changes of the right ankle. In April 2021, a VA nexus opinion was obtained with respect to the right ankle. In the opinion of the VA examiner, a nurse practitioner, the Veteran's claimed right ankle disorder was less likely than not caused by an in-service injury, illness, or event. The stated rationale was that "the Veteran's exam was normal with normal range of motion and no noted pain on exam for a right ankle condition." The examiner did not specify to which examination she was referring. A remand is required pursuant to Stegall v. West, 11 Vet. App. 268, 271 (1998). As explained in the Board's March 2021 remand, the VA examiner, in providing a nexus opinion, should consider whether any pain causes functional impairment of earning capacity and should provide a rationale that is not exclusively based on the absence of contemporaneous medical evidence showing ankle-related complaints between the Veteran's discharge and his treatment for such a condition in 2013. Although the VA examination inquiry specifically directed the VA examiner to consider functional impairment of earning capacity, she did not do so. Furthermore, in contradiction of the Board's order and the VA examination inquiry, no consideration given to the Veteran's report of in-service ankle injury as reflected in filings of March 2012, December 2014, and November 2017. There also has not been compliance with the Board's March 2021 directive to make sufficient attempts to obtain and to provide the Veteran and his representative a copy of curriculum vitae (CV) of the April 2021 VA clinician who provided a nexus opinion as to the right ankle. The Board required that the Veteran be given a copy of the CV of "any other examiner" who provides a nexus opinion for the right ankle. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. Entitlement to a rating in excess of 10 percent prior to April 30, 2021, and in excess of 20 percent from April 30, 2021, for right lower extremity radiculopathy, sciatic nerve. 5. Entitlement to a rating in excess of 10 percent prior to April 30, 2021, and in excess of 20 percent from April 30, 2021, for left lower extremity radiculopathy, sciatic nerve. A rating decision of August 2017 granted service connection for radiculopathy of the right lower extremity and left lower extremity associated with degenerative arthritis of the spine and herniated disc, status post spinal fusion. As to each disability, a 10-percent rating, effective September 12, 2011, was established. The Veteran appealed the assigned evaluations by filing a NOD in November 2017 and VA Form 9 in September 2019. An August 2021 rating decision increased the evaluations to 20 percent, effective April 30, 2021, for each disability, now characterized as left and right lower extremity radiculopathy, sciatic nerve associated with degenerative arthritis of the spine and herniated disc, status post spinal fusion. Because less than the maximum benefit was awarded, the appeal remained active. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board's March 2021 remand required, in part: that the Veteran be scheduled for an examination(s) by an appropriate clinician to determine the current severity of the bilateral lower extremity radiculopathy; that the claims of entitlement to increased evaluations for bilateral lower extremity radiculopathy be readjudicated; and that, if any benefit sought on appeal were not granted, the Veteran and his representative be provided a supplemental statement of the case (SS)C) and an appropriate period to respond. The Veteran was examined for his radiculopathy as part of an April 2021 VA examination for the back. To date, the AOJ has not issued an SSSOC concerning the claims for increased ratings for radiculopathy. Nor does the record reflect that the Veteran and his representative were given a copy of the CV of Dr. J. R., the VA examiner who performed the VA back examination of June 2019. Accordingly, a further remand is required for substantial compliance with the Board's March 2021 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. Entitlement to a TDIU prior to October 2, 2017. A rating decision of February 2013 denied entitlement to a TDIU. The Veteran filed a NOD in April 2013 and VA Form 9 in July 2014. By a filing of September 2019, he raised the issue of entitlement to a TDIU on an extraschedular basis. An August 2021 rating decision granted entitlement to a TDIU on a schedular basis, effective October 2, 2017. A TDIU not awarded for the period prior to October 2, 2017. A request for a TDIU is not a freestanding claim, but rather a component of either an initial service-connection claim or a claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the issue of entitlement to a TDIU prior to October 2, 2017 will be remanded as an aspect of the remanded service- connection and increased-rating claims. The matters are REMANDED for the following action: 1. In remanding these issues, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Undertake appropriate development to associate with the claims folder any outstanding VA treatment records and any outstanding and identified private medical records that are pertinent to the remanded issues. All efforts to obtain any outstanding records should be documented in the claims file. 3. In fulfilment of the prior Board remand of March 2021, undertake appropriate development to obtain, and to provide the Veteran and his representative, a copy of: a. The CV of the February 2020 VA examiner for foot and ankle conditions; b. The CV of the June 2019 VA examiner for back conditions; c. The CV of the April 2021 VA examiner for foot and ankle conditions; and d. The CV of any other VA examiner that examines the Veteran with respect to his claims of entitlement to service connection for a right foot disorder and for a right ankle disorder and of entitlement to increased ratings for radiculopathy of the bilateral lower extremities, to include the examiners who will perform the new examinations requested in today's order. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right foot disorder at any time since the Veteran's claim was filed in March 2012, even if now resolved. The examiner must opine as to whether any such disorder at least as likely as not: a. Was caused by an in-service injury, disease, or event, to include the July 1971 service treatment record noting pain and swelling of the right foot, the Veteran's account of in- service injury to the right foot from a fall from a truck, and, as relevant, the letters/statements of the Veteran or his representative and submitted as evidence in March 2012, December 2014, and November 2017. b. Had its inception during service; c. Manifested during active service or within one year after discharge from service; d. Was noted during service such that the condition was not shown to be chronic at that time or a diagnosis of chronicity could be legitimately questioned, and there was a continuity of the same symptomatology since service; or e. Is proximately due to, or aggravated beyond its natural progression by, a service- connected disability, to include right lower extremity radiculopathy. The examiner must give specific consideration to: a. Medical literature relating to posttraumatic arthritis as provided or cited by the Veteran in the record in support of his right foot/right ankle claim; and b. Any pain causing functional impairment of earning capacity. Notify the examiner that the Board's March 2021 remand required that the rationale for the examiner's nexus opinion is not to be based exclusively on the absence of contemporaneous medical evidence showing foot-related complaints between the Veteran's discharge and his treatment for the right foot in 2013. Notify the examiner that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it would be as medically sound to find in favor of such a conclusion as to find against it. Notify the examiner that the Veteran, as a layperson, is competent to attest to matters based on personal knowledge, including observable symptoms, that come to him through the senses and not medical expertise. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall explain why an opinion cannot be offered. In so doing, the clinician shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A rationale is required for all opinions in the report. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right ankle disorder at any time since the Veteran's claim was filed in March 2012, even if now resolved. The examiner must opine as to whether any such disorder at least as likely as not: a. Was caused by an in-service injury, disease, or event, to include the July 1971 service treatment record noting pain and swelling of the right foot, the Veteran's account of in- service injury to the right ankle from a fall from a truck, and, as relevant, the letters/statements of the Veteran and/or his representative and submitted as evidence in March 2012, December 2014, and November 2017. b. Had its inception during service; c. Manifested during active service or within one year after discharge from service; d. Was noted during service such that the condition was not shown to be chronic at that time or a diagnosis of chronicity could be legitimately questioned, and there was a continuity of the same symptomatology since service; or e. Is proximately due to, or aggravated beyond its natural progression by, a service- connected disability, to include right lower extremity radiculopathy. The examiner must give specific consideration to: a. The October 2017 treatment record of Dr. T. K. that indicates an impression, based on imaging, of degenerative changes of the right ankle; b. Medical literature relating to posttraumatic arthritis as provided or cited by the Veteran in the record in support of the right foot/right ankle claim; and c. Any right ankle pain causing functional impairment of earning capacity. Notify the examiner that the Board's March 2021 remand required that the rationale for the examiner's nexus opinion is not to be based exclusively on the absence of contemporaneous medical evidence showing ankle- related complaints between the Veteran's discharge and his treatment for the right ankle in 2013. Notify the examiner that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it would be as medically sound to find in favor of such a conclusion as to find against it. Notify the examiner that the Veteran, as a layperson, is competent to attest to matters based on personal knowledge, including observable symptoms, that come to him through the senses and not medical expertise. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall explain why an opinion cannot be offered. In so doing, the clinician shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A rationale is required for all opinions in the report. 6. Readjudicate the remanded claims, including TDIU entitlement. If any benefit sought on appeal is not granted, the Veteran and his representative must be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven D. Najarian, 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.