Citation Nr: 21076120 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 15-00 661A DATE: December 22, 2021 ORDER Entitlement to an initial rating of 10 percent, but no higher, for scars of the right upper extremity, status post melanoma excision is granted. REMANDED Entitlement to an initial rating of 20 percent for a right shoulder disability status post lymph node excision prior to December 1, 2020, and in excess of 20 percent thereafter is remanded. Entitlement to an initial compensable rating for bilateral pes planus with bilateral plantar fasciitis prior to October 18, 2019 and in excess of 30 percent thereafter is remanded. Entitlement to an initial compensable rating for hallux valgus of the right foot is remanded. Entitlement to an initial compensable rating for hallux valgus of the left foot is remanded. FINDINGS OF FACT Resolving reasonable doubt, the evidence shows the Veteran has two painful scars of the right upper extremity associated with his melanoma excision and lymph node removal. CONCLUSIONS OF LAW The criteria for an initial rating of 10 percent for scars of the right upper extremity, status post melanoma excision have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1990 to November 2012. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs VA Regional Office. In July 2018, the Veteran testified before the undersigned Veterans Law Judge during a Board video conference hearing. These matters were previously before the Board in February 2019 but were remanded to provide the Veteran with another VA examination to determine the severity of his disabilities. These matters were again before the Board in January 2021 and the Board again remanded the claim. At the time of the Board remand, the Veteran submitted a VA Form 20-0996 Form: Higher Level Review Form in September 2020 seeking review of the decisions made in a July 14, 2020 VA decision. The Board found that the Veteran had a valid opt-in form to have his issues considered under the AMA and remanded his claim to be adjudicated under the AMA. However, on February 2021, the VA Regional Office notified him that they could not identify the issues he requested to be reviewed on the September 2020 VA Form 20-0996 and requested clarification. The VA Regional Office further informed him that if he wishes to withdraw these issues from the Board and to have them decided at the regional office under AMA higher level review then to submit a signed VA Form 20-0996, list all the issues on the supplemental statement of case, and to check the "opt-in" box in block 15 of the form. In an April 2021 VA correspondence, the Veteran was notified that while he expressed his intent to withdraw his claims, he was required to submit a signed statement, visit his nearest VA regional office, or withdraw electronically via e-mail or eBenefits. However, no response was received. In October 2021, the Veteran submitted another VA 20-0996 form requesting review of his increased rating claim for his bilateral plantar fasciitis and right shoulder disability. He also requested review of his increased ratings for a lumbar spine disability and radiculopathy of the left lower extremity are not part of this appeal. Unfortunately, the Board finds that the Veteran has not submitted a proper VA Form 20-0996 to opt-in his increased rating claims for his bilateral pes planus with plantar fasciitis, right shoulder, right and left foot hallux valgus, and scars of the right upper extremity because he did not check the "opt-in box" in block 15. Thus, the Board finds that these claims remain under the legacy review system. These claims were recently denied in a June 2021 supplemental statement of the case and are again before the Board for adjudication. Increased Rating In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 1. Scars of the right upper extremity, status post melanoma excision The Veteran seeks an initial compensable rating for his scars of the right upper extremity which are associated with a melanoma excision and lymph node removal. Specifically, he asserts that he has pain and tenderness of the scars since the melanoma excision and lymph node removal of his right shoulder and armpit In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran's scar of his right upper extremity is currently assigned a non-compensable rating under Diagnostic Code 7805 for other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. 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. Here, the Board finds that Diagnostic Codes 7800 is not applicable as his scar is not of the head face, or neck or that his scars show palpable tissue loss, disfigurement, or gross distortion. Diagnostic Code 7801, both the old and revised provision also does not apply because the evidence does not indicate that his right upper extremity scars are deep and non-linear or that it is associated with underlying soft tissue damage. Similarly, Diagnostic Code 7802 is not applicable because the Veteran's right upper extremity scars are linear or associated with underlying soft tissue damage. Thus, the only applicable Diagnostic Code is 7804 and 7805. 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. Upon review of the evidence, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating for the Veteran's under Diagnostic Code 7805 as there are no other disabling effects not considered in a rating provided under Diagnostic Codes 7800-04. The record does not reflect that he has any functional impairment associated with his right upper extremity scars, and the Veteran does not assert otherwise. However, the Board finds that the Veteran is entitled to an initial rating of 10 percent, but no higher, for his right upper extremity scars. The Board notes that the Veteran's October 2012 and October 2019 VA examination reflects that his right upper extremity scars related to his melanoma and lymph node removal are not painful or unstable. However, a review of the overall medical evidence, to include his service treatment records, reflects that he has continuously complained of having pain in the right axillary and right shoulder since his surgery. As indicated in his March 2012 separation examination, it was noted that he had pain related to his melanoma removal from the right upper arm and lymph node removal from his right axilla. The Veteran, at the July 2018 Board hearing also testified that he experiences pain and numbness of his right upper extremity scars and that they have always been tender. The Board acknowledge that the August 2012 and October 2019 VA examinations does not reflect that his right upper extremity scars are painful or unstable. However, the Board finds that Veteran is competent to report symptoms such as pain and tenderness as it relates to his scars as they are capable of being observed by a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, the Board has no reason to doubt his statements as they have been consistent throughout the period on appeal. As such, the Board finds that he is competent and credible in this instance. Thus, in resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran has two painful scars of his right upper extremity and a 10 percent rating, but no higher, is warranted under Diagnostic Code 7804. A rating in excess of 10 percent is not warranted as it has not been shown that he has three or four scars that are painful or unstable. REASONS FOR REMAND 1. Right shoulder disability status-post lymph node excision 2. Bilateral pes planus with plantar fasciitis 3. Hallux valgus, right foot 4. Hallux valgus, left foot The Board finds that additional development is necessary before a decision may be rendered on these issues on appeal. During a July 2018 Board hearing, the Veteran testified that he was treated by doctors at Mid-Michigan Health for his right shoulder and for his foot disabilities. He testified that he last saw the doctor treating him for his arm in May 2016. The Veteran further stated that he was seen by a private provider for treatment of his bilateral foot condition. A review of his private treatment records that he submitted from Mid-Michigan Health in December 2019 indicates that he was seen for his plantar fasciitis by a provider from that health system from April 2015 to September 2018. However, it does not appear that efforts have been made to obtain these private treatment records for the periods identified by the Veteran and his private treatment records. The Board acknowledge that the Veteran submitted multiple private treatment records from Mid-Michigan Health in December 2019. However, a review of those private treatment records only reflects treatments between 2018 and 2019 associated with his low back pain and chemotherapy for his squamous cell cancer. As such, upon remand, the VA should contact the Veteran for the necessary information to obtain his private treatment records for his right shoulder and bilateral foot disabilities. With regards to the Veteran's right shoulder disability status post lymph node removal, the Board finds a VA examination is warranted. During the July 2018 Board hearing, he testified that he experiences loss of strength and numbness in right arm and shoulder area since the removal of his lymph nodes in his right armpit. He also reported having difficulty with keeping his arm above his head when working on cars and that overuse of his arm limits his motion. He also described the pain as "nerve type." The Veteran was provided with a VA examination in August 2012 and October 2019. While the VA examiners noted his report of stinging, tingling, and numbness of his right upper arm, the VA examiners did not attempt to discuss the nature of his neurological symptoms associated with his right shoulder or right arm. To this extent, the Board finds that a medical opinion is required to determine the nature of the neurological symptoms of the Veteran's right shoulder. Based on the foregoing reasons, a remand is warranted to obtain private treatment records and to afford him with a VA examination for his right shoulder disability. The matters are REMANDED for the following action: 1. Contact the Veteran for the information necessary to obtain his private treatment records related to his right shoulder and bilateral foot disability from Mid-Michigan Health and/or any other private providers and associate them with the claims file. Also, obtain any outstanding VA treatment records related to his right shoulder and bilateral foot disability and associate them with the claims file. 2. After, schedule the Veteran for an examination for his right shoulder disability to determine the current severity of his service-connected right shoulder disability status post lymph node removal and any associated neurological abnormalities associated with his right shoulder disability. In doing so, the examiner should specifically obtain information regarding the neurological complaints related to the Veteran's right upper extremity to include his reports of numbness, tingling, stinging, and loss of strength. 3. After, readjudicate the claims. If the benefit sought on appeal remains denied, furnish the Veteran with a supplemental statement of the case (SSOC) and provide him with an appropriate opportunity to respond. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Xiong, 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.