Citation Nr: 21007026 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 16-17 037 DATE: February 8, 2021 ORDER Entitlement to an increased rating of 10 percent for facial scarring is granted. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s facial scars do not have one characteristic of disfigurement and are not painful or unstable, but they are painful. CONCLUSION OF LAW The criteria for a 10 percent rating, but no higher, for a facial scarring disability are met. 38 U.S.C. §§ 1155; 38 C.F.R. § 4.118, Diagnostic Code (DC) 7800. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1983 to September 1989. Disability evaluations (ratings) are determined by evaluating the extent to which a service-connected disability adversely affects a claimant’s ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. In a claim for a greater original rating after an initial award of service connection, all the evidence submitted in support of the Veteran’s claim is to be considered. Under DC 7800, a 10 percent rating is warranted for scars with one characteristic of disfigurement, a 30 percent rating is warranted for scars with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes, ears, cheeks, lips) or; with two or three characteristics of disfigurement. A 50 percent rating is warranted for scars with 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. An 80 percent rating is warranted for scars with 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. Note 1 indicates the following are the eight characteristics of disfigurement, for purposes of evaluation under § 4.118 are (1) scar five or more inches (13 or more cm.) in length, (2) scar at least one-quarter inch (0.6 cm.) wide at widest part, (3) surface contour of scar elevated or depressed on palpation, (4) scar adherent to underlying tissue, (5) skin hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.), (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.), (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.), (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). The Veteran contends his scars are worse than indicated by his noncompensable rating. Specifically, in his August 2014 Notice of Disagreement (NOD), the Veteran said he did not disagree with the scar on his chin but that the scar on his right cheek and behind his right jaw were next to underlying soft tissues and that they were both painful when he engaged in painful activity, throbbing, and pulsing. The Veteran has stated he said this in his examinations, but that this statement was not written down. The Veteran had an examination for his facial scarring in July 2013. The examiner reviewed the Veteran’s file, saw him in person, and noted that the Veteran had a scar on his face. The examiner’s scars were on his face and the first scar was 4 cm long, mildly deep in some parts. The Veteran had a second scar that was 2 cm. The Veteran’s third scar was 3 cm. The examiner noted none of the Veteran’s scars were painful or unstable and were not due to burns. All of the Veteran’s scars were nonlinear. The examiner found none of the scars were unstable with frequent loss of covering of skin over the scar with none being disfiguring. The examiner found no elevation, depression, adherence to underlying tissue, or missing underlying soft tissue. Additionally, no abnormal pigmentation or texture of the face was found nor was there any gross distortion or asymmetry of the facial features or visible or palpable tissue loss. The Board finds that while the medical evidence does not indicate the Veteran qualifies for a higher rating under his currently assigned Disability Code, as the evidence does not show his scars have one characteristic of disfigurement, the Veteran qualifies for a 10 percent rating under DC 7804. Under DC 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful, a 20 percent rating warranted for 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. In this case, the Board finds the Veteran competent and credible to state that two of his three scars are painful. Therefore, the Board finds a 10 percent rating is warranted. In his NOD, the Veteran said that he sought a 10 percent evaluation for this disability. Therefore, the Board finds this a grant in full of the benefit. REASONS FOR REMAND The Board finds a remand is necessary in the Veteran’s claims to service connection for his back and neck disabilities. The Veteran has been diagnosed with both back and neck disabilities. The Veteran’s STRs show he was in a bicycle accident while in service and that he continued to have back and neck pain, which was noted in his separation examination. In February 2016, opinions were given as to the etiology of the Veteran’s disabilities. However, while this examiner listed several risk factors for the Veteran’s disabilities, this examiner did not explain why the Veteran’s in-service reports of ongoing neck and back pain did not lead to his current disabilities. Additionally, the examiner did not offer an opinion as to whether his previous injuries aggravated his now diagnosed disabilities beyond their natural progression. Therefore, the Board finds this examination to be inadequate and new examinations are warranted. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Veteran has explicitly raised this issue and it is inextricably intertwined with the Veteran’s claims to service connection for his back and neck disabilities and will therefore, be remanded. See Harris v. Derwinski¸1 Vet. App. 180, 193 (1991). As the Veteran is already in receipt of a 100 percent disability rating and has additionally been granted another compensable rating in this decision, the Veteran may wish, in consultation with his representative, to withdraw the remainder of his appeal in writing. The matters are REMANDED for the following action: 1. Obtain any outstanding records pertinent to the Veteran’s claims, to include updated VA and private treatment records. The Veteran himself is encouraged to submit these records. 2. After the record is determined to be complete, obtain a medical opinion from an appropriate examiner regarding the nature and etiology of the Veteran’s back disability and his neck disability. For each disability, the examiner should review the Veteran’s file and opine as to the following: (a) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s disability was incurred in or caused by his time in service? (b) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s disability has been aggravated beyond its natural progression by his time in service? (c)Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s disability is proximately due to any of his service-connected disabilities? A full rationale is to be provided for all stated medical opinions. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the inextricably intertwined issues of entitlement to service connection for bilateral lower extremity numbness. If any benefit sought on appeal is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Snoparsky 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.