Citation Nr: 21074912 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-14 610 DATE: December 16, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for a left lower leg scar prior to February 4, 2021 is denied. Entitlement to a disability rating in excess of 20 percent for a left lower leg scar since February 4, 2021 is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to February 27, 2011, is denied. REMANDED Entitlement to an initial disability rating in excess of 10 percent for left knee instability from February 5, 2007 is remanded. Entitlement to an initial disability rating in excess of 10 percent for left knee arthritis manifesting as limitation of flexion from October 29, 2010 is remanded. FINDINGS OF FACT 1. Prior to February 4, 2021, the Veteran's left lower leg scar did not manifest three or four painful or unstable scars; nor as a single scar that was both painful and unstable. 2. From February 4, 2021, the Veteran's left lower leg scar has not manifested three or four painful or unstable scars. 3. Prior to February 27, 2011 the Veteran's service-connected disabilities did not prevent him from obtaining or maintaining a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for a lower left leg scar prior to February 4, 2021 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. 2. The criteria for a disability rating in excess of 20 percent for a lower left leg scar from February 4, 2021 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. 3. Prior to February 27, 2011, the criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1962 to December 1964. This appeal is before the Board of Veterans' Appeals (Board) from a June 2013 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO) and in October 2018, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ) and a transcript of that hearing is associated with the claims file. In May 2019, the Board denied the Veteran's claims; however, he subsequently appealed the Board decision to the U.S. Court of Appeals for Veteran's Claims (CAVC) and in June 2020 the parties agreed to a Joint Motion for Partial Remand (JMPR) as the Board did not acquire outstanding records and did not conduct the proper development of the Veteran's claims by relying on inadequate examinations. The Veteran's claims were subsequently remanded by the Board in December 2020 and for the reasons described herein, the Board finds substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating The Veteran seeks a disability rating in excess of 10 percent for a left lower leg scar prior to February 4, 2021 and in excess of a 20 percent rating thereafter. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's left lower leg scar is currently rated under 38 C.F.R. § 4.118, Diagnostic Code 7804 for painful or unstable scars. A 10 percent disability rating is warranted for one or two scars that are unstable or painful. A 20 percent disability rating is assignable for three or four scars that are unstable or painful. A 30 percent disability rating is assignable for five or more scars that are unstable and painful. Diagnostic Code 7804 also contains the following notes: (1) An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. (2) 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. (3) Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. As to other applicable diagnostic codes, Diagnostic Code 7800 relates to burn scar(s) and other disfigurements of the head, face, and neck, and since the scar is on the Veteran's leg, its provisions are not applicable in the current matter. Diagnostic Code 7801 assigns a 10 percent disability rating for burn scar(s) or scar(s) due to other causes, 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). A 20 percent disability rating requires an area or areas of at least 12 square inches (77 sq cm) but less than 72 square inches (465 sq cm). A 30 percent disability rating requires an area or areas of at least 72 square inches (465 sq cm) but less than 144 square inches (929 sq cm). A 40 percent disability rating requires an area or areas of 144 square inches (929 sq cm) or greater. A qualifying scar is one that is nonlinear and deep, and is not located on the head, face, or neck. Note (1) to Diagnostic Code 7801 provides that a deep scar is one associated with underlying tissue damage. Id. Under Diagnostic Code 7802, a 10 percent disability rating is assigned for burn scars or scars due to other causes, not of the head, face or neck, that are superficial and nonlinear and have an area or areas of 144 square inches (929 sq cm) or greater. Id. Diagnostic Code 7805 pertains to other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802 and 7804. It specifies that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 are to be evaluated under an appropriate diagnostic code. Id. 1. Left Lower Leg Scar Prior To February 4, 2021 2. Left Lower Leg Scar from February 4, 2021 Turning to the evidence of record, in a July 2013 letter to the Board he stated he has a single scar on his left lower leg that is painful to the touch. In May 2016, he underwent a VA scar examination report. The examiner reviewed the claims file and conducted an in-person evaluation, noting the scar on the Veteran's lower left leg. The report reflected the existence of a single painful scar, which hurts when the weather is cold. It was also described as superficial and nonlinear. Moreover, there were no indications that it was unstable with frequent loss of the covering of skin over the scar. It was measured at 4 centimeters by 2 centimeters, for an approximate total area of 8 square centimeters. In an August 2016 letter to the Board he alleged that during the most recent examination, the VA doctors did not perform adequate tests for "nerve/muscle damage." In May 2019, the Board denied the Veteran's claim; however, he appealed the decision to CAVC and in June 2020 the interested parties agreed to a JMPR and the May 2019 Board decision was partially vacated. Specifically, the JMPR determined the Board did not ensure the Veteran's complete VA treatment records were obtained since 2017. In December 2020, the Board remanded the Veteran's claim and the subsequently sought VA records were associated with the claims file. In February 2021, he underwent a VA scar examination report. The examiner reviewed the claims file and conducted an in-person evaluation, noting the scar on the Veteran's lower left leg. The report noted he had one scar that was not painful, had no soft tissue damage, and it was measured as 10x2 cm sq (20 cm sq). However, the report noted his scar was unstable and tender. In July 2021 a VA addendum opinion was entered into the claims file clarifying the left lower leg scar is "unstable" as evidenced by attached photographs showing skin breakdown. As a result of the VA examination and addendum opinion, in September 2021, the RO issued a rating decision granting a 20 percent disability rating based on his scar being unstable and tender effective February 4, 2021. After careful consideration of the claims file in conjunction with the applicable laws and regulations, the Board finds the preponderance of the evidence is against finding the Veteran's service-connected left lower leg scar warrants a disability rating in excess of 10 percent prior to February 4, 2021 and is against finding a disability rating in excess of 20 percent is warranted thereafter. A 20 percent disability rating is assignable for three or four scars that are unstable or painful or for a single scar that is both unstable and pain. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note 2. A 30 percent disability rating is assignable for five or more scars that are unstable and painful. Here, as to his scar prior to February 4, 2021, both VA examinations of record determined he only had one painful scar. Moreover, at no point during the period on appeal did his scar manifest as unstable. While the Board acknowledges the Veteran's pain, compensation under Diagnostic Code 7804 is based on the number of painful scars and, as the evidence of record during this time indicates he had only one painful scar that was not unstable, a rating in excess of 10 percent under Diagnostic Code 7804 prior to February 4, 2021, is not warranted. As to his scar after February 4, 2021, the February 2021 VA examination is the first indication in the evidence of record his scar manifested as both unstable and tender. Moreover, as previously stated, compensation under Diagnostic Code 7804 is based on the number of painful scars, and as the evidence of record documents the Veteran has only one painful scar, a rating in excess of 20 percent under Diagnostic Code 7804 after February 4, 2021, is not warranted. The Board has also considered whether the Veteran's service-connected left leg scar warrants separate evaluations under any of the other potentially relevant diagnostic codes before and after February 4, 2021. Diagnostic Codes 7801 and 7802 address scars with total areas of at least 39 and 929 square centimeters. See Generally 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7804. However, his left lower leg scar has only been determined to have a total area of 8 and 20 square centimeters throughout both appeal periods. See May 2016 and February 2021 VA Examinations. As such, separate ratings under Diagnostic Codes 7801 and 7802 before and after February 4, 2021 is not warranted. Diagnostic Code 7805 allows for any disabling effects not considered in a rating provided under Diagnostic Codes 7800-7804 to be evaluated under an appropriate diagnostic code. However, pain is the only residual symptom alleged by the Veteran. Since pain is already considered under the provisions of Diagnostic Code 7804, the Board determines that no further ratings are supported by the evidence of record before or after February 4, 2021. In conclusion, the Board finds that the evidence of record does not warrant the assignment of an evaluation in excess of 10 percent prior to February 4, 2021 or a disability rating in excess of 20 percent thereafter for the Veteran's service-connected left lower leg scar. To the extent that any higher or separate rating is sought for either claim, the preponderance of the evidence is against both claims. Hence the benefit of the doubt rule does not apply to either claim. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Accordingly, the Veteran's claim for a disability rating in excess of 10 percent prior to February 4, 2021 and in excess of 20 percent thereafter for his left lower leg scar are both denied. TDIU 3. TDIU prior to February 27, 2011 In this case, the Veteran applied for TDIU in October 2010 and in a September 2021 rating decision, TDIU was awarded as of February 27, 2011. However, the Veteran has continued to maintain that his service-connected disabilities have rendered him unable to work since his initial application for TDIU in which he stated he become unemployable as of October 10, 2010. See October 2010 VA Form 21-8940. As such, the Veteran seeks entitlement to TDIU prior to February 27, 2011. A TDIU may be assigned when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that: if the veteran has only one such disability, the disability must be rated at 60 percent or more, or, if the veteran has two or more disabilities, at least one disability is rated at 40 percent or more and additional disabilities bring the veteran's combined disability rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose, disabilities affecting a single system, e.g., nervous, will be considered a single disability. 38 C.F.R. § 4.16(a). VA will grant a TDIU when the evidence shows that the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when the Board conducts a TDIU analysis, it must take into account the individual veteran's education, training, and work history. See Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes his case outside of the norm. The sole fact that he is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the preponderance of the evidence is against finding the Veteran is entitled to a TDIU prior to February 27, 2011. Prior to February 27, 2011, he was service connected for the following disabilities: (1) a left lower leg scar, rated 10 percent disabling from August 17, 2006; (2) residuals of a left leg injury, rated as 10 percent disabling from September 13, 2000; (3) left knee instability, rated as 10 percent disabling from February 5, 2007; (4) left knee arthritis, rated as 10 percent disabling from October 29, 2010; (5) a right knee strain, from October 29, 2010. His total disability rating was 40 percent. After February 27, 2011, he became service connected for sleep apnea, rated at 50 percent disabling, effective February 27, 2011; for diabetes, rated as 20 percent disabling, effective March 21, 201; and for a left leg scar was rated as 20 percent disabling. His total disability rating as of February 27, 2011 was 70 percent, the first instance in which he met the schedular criteria. 38 C.F.R. § 4.16(a). As such, the Veteran did not meet the schedular criteria for TDIU prior to February 27, 2011 because he did not have one disability ratable at 60 percent or more, or, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). However, a TDIU evaluation can still be awarded if it is established by the evidence of record that the service-connected disabilities rendered a veteran unable to secure and follow substantially gainful employment. If this is established, the case is to be sent to the Director of the Compensation Service for extraschedular consideration. See 38 C.F.R. §§ 3.340(a), 3.341(a), 4.16(b). Here, in his October 2010 VA Form 21-8940 application he wrote that he ceased to work in October 2010. However, in a January 2011 letter to the Board he stated that he has "done my best to be employed" indicating he has continued working or at the very least is still able to work. Furthermore, while the Board acknowledges in his October 2010 VA Form 21-8940, he has alleged his private physician determined he was totally disabled in 2009, the evidence of record contains statements from the Veteran indicating he continued to work after that determination and is thus of little probative value. As such, the Board finds referral to the Director of Compensation and Pension Services for the period prior to February 27, 2011 is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the Veteran's claim for a TDIU prior to February 27, 2011 is denied. REASONS FOR REMAND 1. Left Knee Recurring Subluxation in Excess of 10 Percent 2. Left Leg Arthritis in Excess of 10 Percent The Veteran seeks initial disability ratings in excess of 10 percent for left knee arthritis manifesting as painful motion and in excess of 10 percent for left knee instability. However, in a July 2021 letter to the Board, the Veteran alleged there were outstanding private medical records pertaining to left knee treatment from two separate physicians at Defiance Physical Therapy. Moreover, no letter indicating an attempt to acquire these records was sent to the Veteran and the evidence of record is devoid of any indication such attempts have been made and the evidence of record is devoid of any Defiance Physical Therapy records. As such, the Board finds the VA has not fully satisfied its duty to seek relevant medical records for this Veteran and finds that a remand for medical records is warranted to ensure a complete record upon which to decide the claims on appeal. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. These matters are remanded for the following actions: 1. Send to the Veteran the forms necessary to authorize VA to obtain, on the Veteran's behalf, the identified outstanding private medical records from Defiance Physical Therapy. VA then shall make reasonable attempts to obtain those records. Such attempts must be documented in the claims file. If, after reasonable attempts have been made, these records cannot be obtained, then notify the Veteran as such in accordance with 38 C.F.R. § 3.159(e). 2. After the above is completed, undertake any additional development deemed necessary and readjudicate the Veteran's claims. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.