Citation Nr: 21010160 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 20-27 188 DATE: February 24, 2021 ORDER An initial compensable rating for a facial scar is denied. REMANDED The issue of service connection for a low back disability is remanded. The issue of service connection for a cervical spine disability is remanded. The issue of service connection for residuals of a traumatic brain injury (TBI) is remanded. The issue of service connection for a left knee disability is remanded. FINDING OF FACT The Veteran’s facial scar manifested by no more than 1 scar which was not associated with any characteristics of disfigurement, was not painful or unstable, was not associated with any underlying soft tissue damage, did not affect an area of at least 6 square inches (39 square centimeters), or had any other disabling effects.). CONCLUSION OF LAW The criteria for an initial compensable rating for a facial scar are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.118, Diagnostic Codes (DCs) 7800-7805 (in effect prior to and after August 13, 2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1979 to February 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran presented testimony before the Board. REFERRED The issue of service connection for a right knee disability was raised during the December 2020 Board hearing and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. Higher Initial Ratings Disability evaluations 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 Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). An initial compensable rating for a facial scar. The Veteran’s facial scar is rated under 38 C.F.R. § 4.118, DC 7800. VA amended the criteria for rating skin disabilities during the claim period, effective from August 13, 2018. With regard to the effective date of the new criteria, VA indicated in the Supplementary Information to the Final Rule that its “intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied.” The Veteran’s claim in this case was pending prior to the August 13, 2018, effective date of the new criteria, and therefore, the Board will consider both the old and new criteria and apply the more favorable criteria. In order to warrant a compensable rating under the old rating criteria, a scar would need to involve the head, face or neck and have at least one characteristic of disfigurement (DC 7800); be deep and nonlinear and affect an area or areas exceeding at least 6 square inches (39 square centimeters) (DC 7801); be superficial and nonlinear and affect an area or areas of 144 square inches (929 square centimeters) or greater (DC 7802); be unstable or painful (DC 7804); or have some other disabling effects (DC 7805). 38 C.F.R. § 4.118, DCs 7800-7805 (in effect prior to August 13, 2018). In order to warrant a compensable rating under the new rating criteria, a scar would need to involve the head, face or neck and have at least one characteristic of disfigurement (DC 7800); be associated with underlying soft tissue damage and affect an area or areas exceeding at least 6 square inches (39 square centimeters) (DC 7801); not be associated with underlying soft tissue damage, but affect an area or areas of 144 square inches (929 square centimeters) or greater (DC 7802); be unstable or painful (DC 7804); or have some other disabling effects (DC 7805). 38 C.F.R. § 4.118, DCs 7800-7805 (in effect since August 13, 2018). Note (1) to both the old and new versions of DC 7800 indicates that the eight characteristics of disfigurement, for purposes of evaluation under DC 7800, are (1) scar 5 or more inches (13 or more centimeters) in length, (2) scar at least one-quarter inch (0.6 centimeters) 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 square centimeters), (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters), (7) underlying soft tissue missing in an area exceeding six square inches (39 square centimeters), and (8) skin indurated and inflexible in an area exceeding six square inches (39 square centimeters). 38 C.F.R. § 4.118, DC 7800, Note (1) (in effect prior to and after August 13, 2018). In May 2017, the Veteran was afforded a VA scar examination. The examiner indicated that the Veteran had a facial scar located on his left lower mandible that measured 4 centimeters by 0.25 centimeters. The examiner indicated that the scar was not due to burns and was not painful or unstable with frequent loss of covering of skin over the scar. The examiner indicated that there was abnormal pigmentation of the scar that measured 1 centimeter. The examiner found that there was no elevation, depression, adherence to underlying tissue, missing underlying tissue, abnormal texture, gross distortion or asymmetry of facial features, or visible or palpable tissue loss of the scar. Also, the scar did not result in any limitation of function and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. The examiner concluded that the Veteran’s facial scar did not impact his ability work. During the December 2020 Board hearing, the Veteran indicated that her scar was not painful. For the following reasons, the Veteran’s facial scar did not manifest by symptoms of the type and extent, frequency, and/or severity, as appropriate, to warrant an initial compensable rating under either the old or new rating criteria. The Veteran’s facial scar was not associated with any characteristics of disfigurement, did not involve an area of at least 6 square inches (39 square centimeters), was not unstable or painful, was not associated with any underlying soft tissue damage, and did not have any other disabling effects. Accordingly, an initial compensable rating for a facial scar is denied. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.118, DCs 7800-7805 (in effect prior to and since August 13, 2018). REASONS FOR REMAND 1. The issue of service connection for a low back disability is remanded. 2. The issue of service connection for a cervical spine disability is remanded. 3. The issue of service connection for residuals of a TBI is remanded. 4. The issue of service connection for a left knee disability is remanded. The Veteran claims that her residuals of a TBI, low back, cervical spine, and left knee disabilities are due to an in-service motor vehicle accident (MVA). See Board hearing transcript (December 2020). Specifically, she reports that during her military service, she was in a MVA where the vehicle flipped, threw her from the vehicle, and required a three-day hospital stay. Id. She reports that she has had pain and memory problems in and since her in-service MVA. Most of the Veteran’s active duty service treatment records (STRs) have been found unavailable. See interoffice memorandum (July 2012); memorandum (June 2017). STRs that are available show that the Veteran was involved in a February 1984 MVA, was admitted to the hospital, and had a headache, back pain, neck pain, left knee pain, and a laceration on the left knee following the MVA. See STRs February (1984). The examining physician on the day of the Veteran’s MVA indicated that her recent memory was deficit; the physician’s diagnoses were unreadable; however, a clinical record shows assessment of closed head trauma and blunt cervical trauma. VA treatment record show current left knee, low back, and cervical spine disabilities, namely degenerative joint disease of the left knee and back, and a cervical strain. See VA examination report (May 2017); VA treatment record (March 2020). VA treatment records also show a complaint of headaches. See VA treatment record (December 2019). With respect to the low back and cervical spine disabilities, in May 2017 VA examination reports, the VA examiner opined that the Veteran’s low back and cervical spine disabilities were less likely than not related to her military service, to include as due to an in-service MVA. The examiner indicated that although STRs show that the Veteran was involved in a MVA in 1984, there was no treatment for the back or neck until 2003 and thus, there was no continuity of care from 1984 to 2003. The May 2017 VA opinion is flawed, as the examiner relied on the absence of documented back and cervical spine treatment following the Veteran’s service and did not consider her reports of pain in and since service. Notably, during the December 2020 Board hearing, the Veteran testified that although she did not seek treatment for her disabilities until years after service, she self-treated her disabilities with over the counter medication. Id. Also, the evidence shows that the earliest obtained VA treatment records were in 2000, and in 2001 the Veteran reported back and neck pain. See VA treatment record (January 2001). Thus, the examiner’s opinion is based on an inaccurate factual premise, as the Veteran reported back and neck pain as early as 2001. Therefore, a remand is needed to obtain VA medical opinions that address the Veteran’s claims of service connection for low back and cervical spine disabilities. Additionally, upon remand, outstanding private and workers compensation records should be obtained, as a February 2010 VA treatment provider indicated that the Veteran sought private treatment for a low back disability in 2006 that was “covered by” workers compensation. With respect to the claims of service connection for a left knee disability and residuals of a TBI, the Veteran has not been afforded a VA examination nor has an opinion been obtained to determine the nature or etiology of the left knee disability and residuals of a TBI. As the evidence indicated that the Veteran has a current left knee disability and that she has possible symptoms of residuals of TBI, such as memory loss and headaches, that may be associated with service, a remand is warranted to schedule the Veteran for a TBI examination and obtain an opinion regarding the claim of service connection for a left knee disability. The matters are REMANDED for the following action: 1. Request the Veteran’s Workers Compensation records regarding her low back disability. 2. Request the Veteran’s private 2006 low back treatment records. 3. Schedule the Veteran for a VA examination regarding her claim of service connection for residuals of a TBI. The examiner should first identify whether the Veteran has or had residuals of a TBI, such as memory loss or headaches, since the date of the Veteran’s claim in February 2017. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the residuals of a TBI had its onset in service or is otherwise related to service, to include as due to an in-service MVA. The examiner should address the February 1984 STRs that shows a diagnosis of closed head trauma, headaches, and that the Veteran’s recent memory was deficit following the 1984 MVA. The examiner must provide a rationale for the opinion. 4. Refer the claims file to an examiner to address the Veteran’s claims of service connection for low back, cervical spine, and left knee disabilities. The Veteran does not need to be examined, unless the examiner determines it is necessary. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s low back, cervical spine, and left knee disabilities had their onset in service or are otherwise related to service, to include as due to an in-service MVA. The examiner should address the February 1984 STRs that document the Veteran’s reports of low back, neck, and left knee pain. The examiner must provide a rationale for the opinion. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Castillo, 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.