Citation Nr: 21074487 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-27 657 DATE: December 15, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. An initial increased rating in excess of 10 percent for right hand painful scars is denied. An initial compensable rating for right hand scars is denied. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, his service-connected disabilities render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. 2. The Veteran has two scars on his right hand that are painful. 3. The Veteran's right hand scars are not manifested by any other disabling effects. The Veteran's right hand has two linear scars measuring 7 cm in length and 0.1cm in width, or 0.7 sq. cm. in area; and 3 cm in length and 0.1cm in width, or 0.3 sq. cm. in area. The scars are not deep and nonlinear, not associated with underlying soft tissue damage, does not cover an area or areas of 144 square inches or greater, and not unstable. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 2. The criteria for a disability rating in excess of 10 percent for right hand painful scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. 3. The criteria for a compensable disability rating for right hand scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes 7800-7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United Stated Army from January 1986 to March 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for: (1) painful scars, right hand and assigned an initial 10 percent rating, effective May 24, 2017; and (2) scars, right hand, and assigned an initial 0 percent rating, effective May 24, 2017. In April 2020, the Board this case to the agency of original jurisdiction (AOJ) for additional development. The April 2020 Board remand also recognized the Veteran has raised the issue of a TDIU. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The file is again before the Board for further appellate review. 1. TDIU is granted. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and 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. 38 C.F.R. § 4.16 (a). Here, service connection has been granted for a group VII muscle injury, rated at 40 percent disabling; right upper extremity peripheral neuropathy, associated with residuals of a fracture of the right 5th metacarpal joint, rated at 40 percent; a group VIII muscle injury, rated at 30 percent; residuals of fracture of the right 5th metacarpal joint, rated at 10 percent; painful scars, rated at 10 percent; limitation of motion of the right thumb, rated at 10 percent; painful range of motion right middle finger, rated at 10 percent; and scars of the right hand, rated as noncompensable. Thus, the Veteran's combined rating is 80 percent, and he meets the schedular requirements for a TDIU. Id. In support of his claim, the Veteran has submitted VA Form 21-4192 and VA Form 21-8940. The Veteran listed prior work as a warehouse manager during 2010 to 2012 and two different stints of temporary construction work from January 2012 to February 2014. No explanation was provided for why the Veteran was unable to maintain his job as warehouse manager. For the construction positions the Veteran noted he was not working due to a disability, specified as including his service-connected right hand. Further explanation was provided in the May 2021 Form 21-8940 in which the Veteran stated he is not able to use his hands for any amount of time, but there is no indication of his work history, such as beyond February 2014. There is no indication on review of the claims file that the Veteran has worked beyond February 2014. In August 2016 the Veteran was seen by a mental health social worker. At this visit the Veteran indicated that he was currently unemployed and noted that he could not work due to the loss of his toes due to extreme diabetes. The Veteran's diabetes is not service connected and such impairment is not further considered. The Board notes a February 2021 VA muscle injuries examiner and February 2021 VA scars examiners found no functional impact from his scars. However, the February 2021 VA nerves conditions examination did find a significant functional impact. Due to the Veteran's nerve conditions, the Veteran was found unable to write or type, and had decreased grip strength in the right hand, and could not carry or lift objects with his right hand. Resolving any doubt in favor of the Veteran, the Board finds that a TDIU is warranted given the Veteran's history of work as a laborer in construction and as a manager in a warehouse. The Veteran's service-connected conditions prevent him from writing or typing and prevent nearly all use of the right hand, which would in turn be precisely the type of occupational impairment that would prevent him from obtaining or maintaining employment in manual labor in the construction industry. The Veteran's prior attempts at work have been adversely and directly impacted by his service-connected disabilities. Consequently, the Board resolves all doubt in the Veteran's favor and finds that his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim is granted. INCREASED RATING 1. An initial increased rating in excess of 10 percent for right hand painful scars is denied. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). By history, the Veteran filed a claim for service connection for right hand scars in May 2017. In July 2017, the AOJ awarded a compensable rating of 10 percent for the Veteran's two painful scars of the right hand, as due to an in-service right hand crush injury. The Veteran contends that his scars deserve a higher initial rating. The Veteran's right-hand painful scars are currently rated at 10 percent disabling under Diagnostic Code 7804. This is based upon the Veteran having one or two scars that are unstable or painful. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7804 was not changed by the August 13, 2018, amendments. 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. Unstable scars are defined as a scar where, for any reason, there is frequent loss of covering of skin over the scar. Diagnostic Code 7804. An additional 10 percent rating can also be added to the total if one or more of the Veteran's scars are both unstable and painful. There is highly probative evidence against a higher initial rating from the February 2021 VA scars examinations. While the Board found the June 2017 examination inadequate, but it is still revealing as to the nature of the Veteran's scars at that time. The Veteran was found to have two scars which were painful and hypersensitive to touch. Neither scar was noted as being unstable. On remand, a February 2021 VA scars examination found two painful scars on his right hand. These scars were noted as tender to touch. Neither were noted as unstable or due to burns. As such, the probative evidence shows the Veteran has two painful scars, but there is no evidence of unstable scars. To receive a rating above 10 percent it must be shown that the Veteran has three or four scars that are unstable or painful or at least one scar that is both unstable and painful. Diagnostic Code 7804. There is no evidence of either condition. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement a rating in excess of 10 percent for painful right-hand scars is not warranted. 38 U.S.C. § 5107 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. An initial compensable rating for right hand scars is denied. The Veteran contends that he should receive a compensable rating for his right-hand scars. The AOJ's July 2017 rating decision additionally awarded a separate non-compensable evaluation for the two service-connected right hand scars, based upon non-compensable symptoms of having one or more linear scars. The Veteran's right hand scars (excluding pain) are assigned a noncompensable evaluation under DC 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 that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate Diagnostic Code. Other effects of scars evaluated under Diagnostic Codes 7800 (burn scar of head, face or neck), 7801 (burn scar not of head face or neck, that are deep and nonlinear), 7802 (burn scar not of head face or neck, that are superficial and nonlinear, and area over 6 sq. inches/39 sq. cm.), and 7804 (unstable or painful scars). 38 C.F.R. § 4.118 (skin diseases). As the prior section dealt with the scars being painful or unstable under DC 7804, this diagnostic code will not be discussed further. The Board has also considered the other Diagnostic Codes pertaining to scars. On review of the record, the Veteran's right hand scars are clearly not of the head, face, or neck; are not deep and nonlinear, and are not associated with underlying soft tissue damage. Although they are superficial and not associated with underlying soft tissue damage, they do not cover an area or areas of 144 square inches or greater. During the March 2015 VA examination only one scar was measured. It was found to be 5 cm. by .5 cm for a total area of 2.5 sq. cm. on the Veteran's right hand. The February 2021 VA examiner assessed (1) a scar on the right palm secondary to laceration, measuring 7 cm x 0.1cm, or 0.7 sq. cm. in area; and (2) a scar of the right lateral hand and lateral 5th right hand digit, measuring 3 cm x 0.1cm, or 0.3 sq. cm. in area. Combined the two scars cover 1 sq. cm. of the Veteran's hand. This does not reach the minimum total of 39 sq. cm. needed to obtain a compensable rating. Therefore, Diagnostic Codes 7800, 7801, and 7802, both prior to and from August 13, 2018, are inapplicable. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement an initial compensable rating for right hand scars is not warranted. 38 U.S.C. § 5107 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Chatterjee Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Andrew Ledman II 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.