Citation Nr: 21005549 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 14-15 991A DATE: February 1, 2021 ORDER Entitlement to a rating in excess of 10 percent for his residual scar due to shell fragment wound in the left scapular area is denied. Entitlement to a rating in excess of 10 percent for his residual scar due to shell fragment wound in the right shoulder and thorax is denied. REMANDED Entitlement to service connection for lumbar degenerative disc disease is remanded. Entitlement to a rating in excess of 20 percent for his left shoulder limited motion secondary to shell fragment wound in the scapular area is remanded. Entitlement to a rating in excess of 30 percent for his right shoulder shell fragment wound and thorax with fracture of the scapula and four ribs with injury to muscle groups I, III, and IV is remanded. FINDINGS OF FACT 1. The Veteran’s left scapular area scar is painful, measures 30 square centimeters, and does not result in characteristic disfigurement. 2. The Veteran’s right shoulder scar is painful, measures 37.5 square centimeters, and does not result in characteristic disfigurement. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for residual scar due to shell fragment wound in the left scapular area have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.21, 4.118, Diagnostic Code (DC) 7801. 2. The criteria for a disability rating in excess of 10 percent for residual scar due to shell fragment wound in the right shoulder and thorax have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.21, 4.118, Diagnostic Code (DC) 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to April 1971. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) in San Juan, Puerto Rico. In March 2018, the Board remanded these claims for additional development. The Board notes that the previously remanded claim for service connection for a cervical spine disability was granted during the course of this appeal in a December 2019 rating decision. Therefore, the issue is no longer before the Board. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each disability must be considered from the point of view of the Veteran who is working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two evaluations shall 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to a rating in excess of 10 percent for his residual scar due to shell fragment wound in the left scapular area In May 2012, the Veteran filed an increased rating claim alleging that his left scapula scar should have an increased disability rating. The Veteran's service-connected left scapula scar is currently rated under DC 7804. Under DC 7800, a 10 percent rating is warranted for scars that are located on the head, face, or neck when there is one characteristic of disfigurement. See, 38 C.F.R. § 4.118, Diagnostic Code 7800. A 30 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, or lips), or; with two or three characteristics of disfigurement. Id. A 50 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement. Id. An 80 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characteristics of disfigurement. Id. DC 7801 provides that scars, other than head, face, or neck, that are deep or that cause limited motion are rated as follows: area or areas exceeding 144 square inches (929 sq. cm) are rated as 40 percent disabling; area or areas exceeding 72 square inches (465 sq. cm) are rated as 30 percent disabling; area or areas exceeding 12 square inches (77 sq. cm) are rated as 20 percent disabling; and area or areas exceeding 6 square inches (39 sq. cm) are rated as 10 percent disabling. 38 C.F.R. § 4.118, DC 7801. A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801, Note 2. DC 7802 provides that scars, other than head, face, or neck, that are superficial and that do not cause limited motion, covering an area or areas of 144 square inches (929 sq. cm) or greater, are rated as 10 percent disabling. 38 C.F.R. § 4.118, DC 7802. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802, Note 2. DC 7803 provides that a 10 percent rating is warranted for scars that are superficial and unstable. 38 C.F.R. § 4.118, DC 7803. Note 1 to DC 7803 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 to DC 7803 provides that a superficial scar is one not associated with underlying soft tissue damage. Pursuant to DC 7804, one or two scars that are unstable or painful warrant a 10 percent rating; three or four scars that are unstable or painful warrant a 20 percent rating; and five or more scars that are unstable or painful warrant a 30 percent rating. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See, 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1). Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable. See 38 C.F.R. § 4.118, Diagnostic Code 7804, (Note 3). The Board will not only consider the criteria under the currently assigned diagnostic code, but also the criteria set forth in other potentially applicable diagnostic codes, such as Diagnostic Codes 7800, 7801, 7802, or 7805. DC 7805 provides that other scars are rated based upon limitation of function of the affected part. For purposes of evaluation of under 38 C.F.R. § 4.118, the eight characteristics of disfigurement are: a scar that is five or more inches, or thirteen centimeters, in length; a scar that is at least one-quarter of an inch, or 0.6 centimeters, wide at the widest part; surface contour of the scar that is elevated or depressed on palpation; a scar that is adherent to underlying tissue; skin that is hypo- or hyper-pigmented in an area exceeding six square inches, or 39 square centimeters; skin texture that is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches, or 39 square centimeters; underlying soft tissue that is missing in an area exceeding six square inches, or 39 square centimeters; and skin that is indurated and inflexible in an area exceeding six square inches, or 39 square centimeters. See, 38 C.F.R. § 4.118, Diagnostic Code 7800, Note 1. VA is to consider unretouched color photographs when evaluating under these criteria. Id. at Note 3. Additionally, VA is to separately evaluate disabling effects other than disfigurement that are associated with individual scars of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, under the appropriate diagnostic code(s) and apply 38 C.F.R. § 4.25 to combine the evaluation(s) with the evaluation assigned under Diagnostic Code 7800. Id. at Note 4. Finally, the characteristics of disfigurement may be caused by one scar or by multiple scars; the characteristics that are required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. Id. at Note 5. During the course of the appeal, the Veteran was afforded two VA examinations for his service-connected scars, dated October 2012 and October 2019. In the October 2012 Scar VA examination, the Veteran's left scapula scar was noted to be deep and non-linear. Additionally, it was noted that the scar covered an area totaling 26 square centimeters. In the most recently afforded a VA scars examination in October 2019, the Veteran's left scapula scar was noted to be a keloid formation and tender to palpation with visual evidence of tissue adherence and hyperpigmentation at all dimensions. Additionally, it was noted that the scar covered an area totaling 30 square centimeters. Accordingly, based on the above, the Board finds that a compensable rating under Diagnostic Code 7800 is not warranted as the Veteran’s scar is not located in his head, face, or neck. Based on the evidence above, while the Veteran has a deep and non-linear scar, it does not meet the required size to be compensated by more than 10 percent under DC 7801, as it is under 77 square centimeters. Similarly, the scar is not large enough to warrant a rating under DC 7802, as it is under 929 square centimeters. Turning to Diagnostic Code 7804, the Board notes, as outlined above, that in order to be entitled to a rating of 20 percent, the evidence must show that the Veteran has three or four scars that are unstable or painful; and a 30 percent rating is warranted for five or more scars that are unstable or painful. See, 38 C.F.R. § 4.118, Diagnostic Code 7804. As the Veteran's VA examinations indicated that the Veteran has two scars (one of the left side and one on the right side) that are painful, a rating in excess of 10 percent is not warranted, as the preponderance of the evidence is against a finding of three or four scars that are unstable or painful. Finally, as there is no indication of any other disabling effects that would warrant evaluation under an appropriate diagnostic code, an increased rating under Diagnostic Code 7805 is not warranted. See 38 C.F.R. § 4.118, Diagnostic Code 7805. Accordingly, based on the above, the Board finds that the preponderance of the evidence is against the Veteran's claim and therefore, entitlement to a rating in excess of 10 percent for his residual scar due to shell fragment wound in the left scapular area is denied. 2. Entitlement to a rating in excess of 10 percent for his residual scar due to shell fragment wound in the right shoulder and thorax In May 2012, the Veteran filed an increased rating claim alleging that his left scapula scar should have an increased disability rating. The Veteran's service-connected left scapula scar is currently rated under DC 7801. During the course of the appeal, the Veteran was afforded two VA examinations for his service-connected scars, dated October 2012 and October 2019. In the October 2012 Scar VA examination, the Veteran's left scapula scar was noted to be deep and non-linear. Additionally, it was noted that the scar covered an area totaling 37.5 square centimeters. In the most recently afforded a VA scars examination in October 2019, the Veteran's left scapula scar was noted to be a keloid formation and tender to palpation with visual evidence of tissue adherence and hyperpigmentation at all dimensions. Additionally, it was noted that the scar covered an area totaling 17.5 square centimeters. Accordingly, based on the above, the Board finds that a compensable rating under Diagnostic Code 7800 is not warranted as the Veteran’s scar is not located in his head, face, or neck. Based on the evidence above, while the Veteran has a deep and non-linear scar, it does not meet the required size to be compensated by more than 10 percent under DC 7801, as it is under 77 square centimeters. Similarly, the scar is not large enough to warrant a rating under DC 7802, as it is under 929 square centimeters. Turning to Diagnostic Code 7804, the Board notes, as outlined above, that in order to be entitled to a rating of 20 percent, the evidence must show that the Veteran has three or four scars that are unstable or painful; and a 30 percent rating is warranted for five or more scars that are unstable or painful. See, 38 C.F.R. § 4.118, Diagnostic Code 7804. As the Veteran's VA examinations indicated that the Veteran has two scars (one of the left side and one on the right side) that are painful, a rating in excess of 10 percent is not warranted, as the preponderance of the evidence is against a finding of three or four scars that are unstable or painful. Finally, as there is no indication of any other disabling effects that would warrant evaluation under an appropriate diagnostic code, an increased rating under Diagnostic Code 7805 is not warranted. See 38 C.F.R. § 4.118, Diagnostic Code 7805. Accordingly, based on the above, the Board finds that the preponderance of the evidence is against the Veteran's claim and therefore, entitlement to a rating in excess of 10 percent for his residual scar due to shell fragment wound in the right shoulder and thorax is denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for his right shoulder shell fragment wound and thorax with fracture of the scapula and four ribs with injury to muscle groups I, III, and IV, is remanded. Consequent to the Board’s March 2018 remand, the Veteran was provided a VA Muscles examination in October 2019, and the report of such indicates that the Veteran’s in-service gunshot wound to the right shoulder has resulted in minute foreign bodies within Muscle Group, resulting in weakness and loss of power to one or more muscles within that group. Despite this evidence, the Board observes that service connection has not been established for an injury to Muscle Group II resulting from the Veteran’s in-service shell fragment wound. This matter is critical in the present case, as the controlling regulations provide guidance specifically tailored to service-connected gunshot wound residuals involving Muscle Groups I and II. 38 C.F.R. § 4.55 (c), (d). In an attempt to rate the totality of the Veteran’s service-connected disability on appeal, the Board concludes that additional medical opinions are necessary to determine the full nature of the Veteran’s service-connected disability, to include the severity of the functional impairment stemming from such. 2. Entitlement to service connection for lumbar degenerative disc disease is remanded. Regrettably, another remand is required to properly assess the Veteran’s lumbar spine disability. The Veteran was afforded VA examinations in October 2012 and October 2019. These examinations confirm that the Veteran has been diagnosed with a lumbar spine disability, namely degenerative disc disease of the lumbar spine. Both examiners concluded that the Veteran’s lumbar spine disability was not due to or caused by his active duty service and opined that it was more likely due to the aging process. Additionally, the October 2019 examiner opined that the Veteran’s service-connected disabilities did not affect the lumbar spine, as they are not anatomically or pathophysiologically related to each other. However, the Board notes that in December 2019, the Veteran was granted service connection for his cervical spine degenerative arthritis. Based on this development, the Board finds that another examination is needed to address the potential connection between the Veteran’s lumbar degenerative disc disease to the newly service-connected cervical spine degenerative arthritis. 3. Entitlement to a rating in excess of 20 percent for his left shoulder limited motion secondary to shell fragment wound in the scapular area is remanded. Regrettably, another remand is required to properly assess the Veteran’s left shoulder disability. During the October 2019 Muscle Injury VA examination, the VA examiner confirmed that the Veteran had a left-side injury to Muscle groups I, III, and IV. However, the examiner did not specify the level of severity for the left-side muscle groups injuries. Therefore, a clarification is required from the VA examiner that conducted the October 2019 examination, if the examiner is unable to provide the necessary information, another VA examination would be necessary. The matters are REMANDED for the following action: 1. Forward the claims file, including a complete copy of this additional remand, to the VA compensation examiner who conducted the October 2019 VA neck (cervical spine) conditions examination for additional comment on the impact the Veteran's service-connected cervical spine disability has on the lumbar spine disability. If the examiner is unavailable, schedule the Veteran for a VA examination, with a new VA examiner. The claims folder and any pertinent medical records should be made available for review by the examiner. Following a review of the record, and any necessary testing, the examiner should address the following questions: Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s lumbar degenerative disc disease, was caused or aggravated by the Veteran's service-connected cervical spine degenerative arthritis? The examiner is informed that aggravation is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. A full rationale is to be provided for all stated medical opinions. If the examiner concludes that the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why this opinion would be speculative and what, if any, additional evidence would permit such an opinion to be made. 2. Forward the claims file, including a complete copy of this additional remand, to the VA compensation examiner who conducted the October 2019 VA Muscle Injury examination for additional opinions which address the following: a. Does the Veteran have an injury to any muscle in Muscle Group II in either arm/shoulder as a result of his in-service shell fragment wounds? *If the response to the above is negative, the examiner is asked to comment on the presence of minute foreign bodies evidenced in Muscle Group II on prior x-ray testing and the notation of loss of power and weakness in that Muscle Group at the October 2019 VA examination. b. If an injury to Muscle Group II in either arm is identified, the examiner must state whether such was incurred during active duty or is related to another cause. c. Provide statements and accompanying rationale regarding the severity and functional impairment stemming from the Veteran’s injuries to Muscle Groups I, II, III, and IV in each arm. If the October 2019 examiner is unavailable, schedule the Veteran for a new VA muscles examination, and after completion, request that the VA examiner address the avbove. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. R. Montalvo, 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.