Citation Nr: 21010276 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-22 058 DATE: February 24, 2021 ORDER Entitlement to an increased 40 percent rating, but not higher, for lumbosacral spine degenerative disc disease and spondylolisthesis (low back disability) is granted subject to the laws and regulations controlling the award of monetary benefits. Entitlement to an increased 10 percent rating for bilateral upper arm basal cell carcinoma residual scars, is granted subject to the laws and regulations controlling the award of monetary benefits. Entitlement to an initial 70 percent rating higher for total right hip arthroplasty (right hip disability) exclusive of any period of a temporary 100 percent disability rating is granted, subject to the laws and regulations controlling the award of monetary benefits. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The Veteran’s low back disability symptomatology more nearly approximates flexion to 30 degrees or less, but does not more nearly approximate unfavorable ankylosis of the thoracolumbar spine or the entire spine. 2. The evidence is at least evenly balanced as to whether the Veteran’s bilateral upper arm scars more nearly approximate one or more scars that are unstable or painful. 3. The evidence is at least evenly balanced as to whether the Veteran’s right hip disability symptomatology more nearly approximates markedly severe residual weakness, pain or limitation of motion, but not painful motion or weakness such as to require the use of crutches. 4. The evidence is at least evenly balanced as to whether the Veteran’s service connected disabilities preclude her from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating of 40 percent, but not higher, for lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.71, Diagnostic Code (DC) 5242. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for an increased 10 percent rating, but not higher, for bilateral upper arm basal cell carcinoma residual scars have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7818-7805. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for an initial 70 percent rating, but not higher exclusive of any period of a temporary 100 percent rating for right hip disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, DC 5054. 4. With reasonable doubt resolved in favor of the Veteran, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1976 to November 1979, and March 1985 to July 2005 with service in Southwest Asia. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington which, among other things, granted service connection for right hip bursitis, evaluating it as noncompensable, continued a 10 percent evaluation for lumbar spine disability, and continued a noncompensable rating for bilateral upper arm basal cell carcinomas. In September 2014, the Veteran filed her notice of disagreement with the ratings assigned, was issued a statement of the case in March 2017, and in April 2017 perfected her appeal to the Board. In a March 2017 Decision Review Officer (DRO) Decision, the DRO, inter alia, found clear and unmistakable error (CUE) in granting service connection for right hip disability from December 21, 2012, and granted service connection for right hip disability, evaluating it as 100 percent disabling from May 6, 2013, and 30 percent disabling from February 1, 2014, creating a “staged” rating. In January 2021, the Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing. A copy of the transcript is of record. The Board notes that the issue of entitlement to service connection for scars of the head and left leg were raised by the Veteran during her January 2021 virtual Board hearing. The issues, however, have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ); therefore, the Board does not have jurisdiction over the claims. The issues are referred to the RO for appropriate action, to include informing the Veteran and her attorney that a claim for benefits must be submitted on the application form prescribed by the Secretary of VA and providing such forms. See 38 C.F.R. § 3.150 (a) (providing for furnishing of appropriate application form upon request for VA benefits); 38 C.F.R. § 20.904 (b) (“The Board shall refer to the agency of original jurisdiction for appropriate consideration and handling in the first instance all claims reasonably raised by the record that have not been initially adjudicated by the agency of original jurisdiction”). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). A United States Court of Appeals for Veterans Claims (Court) decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. 1. Right hip disability The Veteran’s right hip disability is currently rated as 100 percent disabling from May 6, 2013, and 30 percent disabling from February 1, 2014 under 38 C.F.R. § 4.71a, DC 5054. Under DC 5054, a 30 percent rating is warranted as the minimum rating, a 50 percent rating is warranted for moderately severe residuals of weakness, pain or limitation of motion, 70 percent rating is warranted for markedly severe residual weakness, pain or limitation of motion, a 90 percent rating is warranted for painful motion or weakness such as to require the use of crutches, and a 100 percent rating for one year following the implantation of prosthesis. 38 C.F.R. § 4.71a, DC 5054. Words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. DC 5252 provides ratings based on limitation of flexion of the thigh. A 10 percent disability rating is for flexion of the thigh that is limited to 45 degrees; a 20 percent rating is for flexion of the thigh that is limited to 30 degrees; a 30 percent rating is for flexion of the thigh that is limited to 20 degrees; and a 40 percent rating is for flexion of the thigh that is limited to 10 degrees. 38 C.F.R. § 4.71a. The selection of a particular diagnostic code “is a determination that is completely dependent upon the facts of a particular case,” and the Board has discretion in determining the appropriate diagnostic code. Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (applying the more deferential “arbitrary, capricious” standard, rather than de novo review, to the Board’s determination of the appropriate diagnostic code). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, diagnosis, and demonstrated symptomatology. The Board must specifically explain why it evaluates a disability under a different diagnostic code than that used by the RO. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). As will be explained below, the evidence reflects that the most appropriate diagnostic code to rate the Veteran’s disability is DC 5054, the one currently assigned to the Veteran’s right hip disability. The Veteran testified that due to her hip replacement, one leg is half an inch shorter, she walks like she is “wobbling”, and she tends to stumble a lot. She stated that prior to May 6, 2013, she had steroid injections into her hips as they were very painful. She stated that she used a cane to help with ambulation, and then used a walker when she had her hips replaced. She said before her surgery, she could walk about a block, and then would have to sit down and rest. The Veteran reported pain even while sitting down and resting, and stated that every step was like “a knife jabbing” into her leg. She stated prior to her surgery, she could not lift as much as she did in the army, could not get around as fast, and was more prone to falling. She stated it is difficult to negotiate stairs, and that even while resting, she gets stiffness in her hip. The Veteran reported that she has limitation in motion as she cannot lift her leg to put on pants. She also stated that she used to do yoga, but has to “hang onto a wall” to do anything now as she no longer has any balance. The Veteran testified that she no longer uses crutches, but has a prosthesis, limitation of motion, and pain and weakness. A March 2015 disability benefits quesitonnaire (DBQ) reflected that the Veteran did not have any hip problems, and did not report flare-ups that impacted the function of her hip or thigh, or any other functional loss or impairment. Range of motion measurements were normal and noted as follows: flexion to 125 degrees; extension to 30 degrees; abduction to 45 degrees; adduction to 25 degrees; external rotation to 60 degrees; and internal rotation to 40 degrees. No pain was noted on examination, and there was no additional loss of function or range of motion with repetitive use. The Veteran did not report flare-ups of the right hip, muscle strength was normal, there was no muscle atrophy, and no ankylosis. The physician noted leg length discrepancy with the right leg measuring 90 cm, and the left leg measuring 88.5 cm due to hip replacement surgery. The DBQ reflected a posterior right hip scar measuring 20 by 0.1 cm. A May 2016 DBQ reflected that the Veteran reported problems with balance due to her right hip disability, stated that she cannot run, and that she can only jump about 2 inches. She reported pain whenever she stands up, and aches all over while riding in a car. The DBQ indicated that the Veteran suffers from flare-ups which required that she sit or lay down to ease the pain. She reported that she cannot sleep on her right side. Right hip range of motion was as follows: flexion to 60 degrees; extension, abduction, and adduction to 20 degrees; external rotation to 50 degrees; and internal rotation to 30 degrees. The examining physician noted functional loss which limits prolonged standing and walking. There was evidence of mild pain upon examination, pain with weight-bearing, but no objective evidence of crepitus. There was no additional loss of function or range of motion after three repetitions noted. The physician noted that pain limited functional ability with flare-ups, but that the examination was not performed during a flare-up, and he was unable to describe the limitation in terms of range of motion during a flare-up. The DBQ indicated normal muscle strength, no muscle atrophy, no ankylosis, and no malunion or nonunion of the femur, flail hip joint, or leg length discrepancy. The Veteran reported occasional use of a cane, and the physician noted that the Veteran’s right hip disability impacted her ability to work as it limited prolonged standing and walking. The evidence of record is at least evenly balanced as to whether the Veteran’s right hip disability symptoms more nearly approximate markedly severe residual weakness, pain, or limitation of motion as contemplated by a 70 percent rating under DC 5054. While the May 2016 physician noted flexion to 60 degrees and extension to 20 degrees, the examination was not performed during a flare-up, and the physician was unable to describe limitation in terms of range of motion during a flare-up. While the physician failed to comply with Sharp, a remand is unnecessary as the Board is granting a higher rating while still considering limitation of motion under DC 5054 than would be available based on limitation of motion under DC 5252. The May 2016 physician noted the Veteran’s reports of an inability to run or sleep on her right side, balance issues, and limited walking and standing due to her right hip disability. The Veteran testified that she tends to stumble a lot, has trouble negotiating stairs, is unable to lift her legs to put on pants, and that she has no balance. The Veteran’s right hip disability symptomatology and the resulting functional limitations thus more nearly approximate markedly severe weakness, pain or limitation of motion as contemplated by a 70 percent rating under DC 5054. However, the Veteran has testified that she no longer uses crutches, thus her right hip symptomatology does not more nearly approximate a 90 percent rating under DC 5054. As the reasonable doubt created by this approximate balance in the evidence must be resolved in favor of the Veteran, entitlement to an initial 70 percent rating, but not higher exclusive of any period of a temporary 100 percent rating is warranted for the entire appeal period for right hip disability under DC 5054. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 2. Low back disability The Veteran’s low back disability is currently rated 10 percent disabling under DC 5242. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Rating Formula). Under the General Rating Formula for Diseases and Injuries of the Spine applied by DC 5242, the disability is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A 20 percent rating requires thoracolumbar spine forward flexion greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling. 38 C.F.R. § 4.71a. The IVDS Rating Formula provides a 20 percent rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. 38 C.F.R. § 4.71a, DC 5237, Note 2. Further, all measured ranges of motion should be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, general rating formula, Note 4. Ankylosis is a condition in which an entire spinal segment is immobile and fixed in position. Unfavorable ankylosis exists where the fixation is in flexion or extension, and the ankylosis results in difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; and/or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) is considered favorable ankylosis. 38 C.F.R. § 4.71a, general rating formula, Note 5. The Veteran testified that her lumbar spine disability limited her to being able to stand for about a minute, and sit for a half an hour due to the aching in her back before she needs to move it or stretch. She also reported that she can only walk about a mile before she has to rest, and about 8 to 10 times a day for a half an hour each time. She also stated that her back pain is exacerbated by walking. She stated that she does not have any problems with bending over, as she will get down on the floor to pick something up. The Veteran reported that twisting is not a problem. She stated her back issues interfered with her working, but reported that she could still work, but would take time out every half an hour to rest her back. She also stated that she suffers from flare-ups of the back which cause interference with sitting and standing, and significant functional loss. She reported that she would not be able to do her best work due to her back and hip disabilities. A March 2015 DBQ indicated that the Veteran suffers from pain on a daily basis, particularly with prolonged standing, walking, bending, and lifting due to her low back disability. She also reported pain that goes down her right leg and flare-ups. The DBQ reflected flexion to 90 degrees or greater with no evidence of painful motion, extension to 10 degrees with evidence of painful motion at 10 degrees, and right and left lateral flexion, and right and left lateral rotation to 30 degrees, with evidence of painful motion at 30 degrees for right and left lateral flexion. There was no additional loss of function or motion with repetitive-use testing. The examining physician noted no localized tenderness or pain to palpation to joints and/or soft tissue of the thoracolumbar spine, no guarding or muscle spasms, muscle strength was normal, and there was no muscle atrophy or ankylosis. The DBQ reflected that the Veteran had moderate intermittent pain in the right lower extremity with involvement of the right sciatic nerves, but no other signs or symptoms of radiculopathy. The examining physician reported that the Veteran had IVDS of the thoracolumbar spine, but had not suffered incapacitating episodes over the past 12 months due to her IVDS. The physician noted that the Veteran’s low back disability limited her employment to sedentary occupation although she does not need to remain seated, and that she should avoid heavy lifting. A March 2017 DBQ reflected that the Veteran did not report flare-ups of the thoracolumbar spine, but did report back pain with walking. Forward flexion was to 80 degrees, extension to 10 degrees, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, and right and left lateral rotation each to 10 degrees. Each range of motion exhibited pain, but there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. There was evidence of pain with weight bearing, but no additional function loss or range of motion after 3 repetitions. The DBQ reflected that the Veteran had localized tenderness, guarding, or muscle spasm that did not result in abnormal gait or abnormal spinal contour. Muscle strength was normal, and the Veteran did not have muscle atrophy. The Veteran’s sensation to light touch was normal, straight leg testing was negative, and the Veteran did not have radicular pain or symptoms due to radiculopathy. The physician noted no ankylosis of the spine, or any other neurologic abnormalities or findings related to a thoracolumbar spine disability. The DBQ indicated that the Veteran did not have IVDS of the thoracolumbar spine and did not use assistive devices as a normal mode of locomotion. The Veteran did have scars related to her lumbar spine disability, but they were not painful, unstable, or have a total area equal to or greater than 39 square cm, and were not located on her head, face, or neck. The physician noted that the scar was located on the Veteran’s lower back and measured 5 cm by ¼ cm. He also noted that the Veteran’s lumbar spine disability impacted her ability to work as it impacted her ability to bend and lift. There was pain on passive range of motion, and with non-weight bearing. November 2019 VA acupuncture notes reflect that the Veteran’s lower back flexibility had improved some, and she reported an average pain level of 2 or 3 out of 10. She reported worse pain with bending forward, and noted pain localized in the lower thoracic lumbar region averaging 3 to 7 out of 10. The Board finds that the evidence is at least evenly balanced that the Veteran’s low back disability symptomatology more nearly approximates that contemplated by a 40 percent rating under the general rating formula. While the March 2017 DBQ noted that the Veteran’s low back disability limited her to 80 degrees forward flexion, and 10 degrees extension, the DBQ was not administered during a flare-up which as the Veteran testified causes interference with sitting and standing, and “significant functional loss”. Therefore, it is reasonable to conclude based on the Veteran’s competent lay statements regarding back pain during a flare-up that her back range of motion is more severely limited during a flare-up than is evidenced by the DBQs. The March 2017 physician also indicated that the Veteran’s low back disability impacted her ability to bend and lift, and noted pain on passive range of motion and with non-weight bearing. Considering these contentions in light of the evidence of record and the applicable law, the orthopedic manifestations of the Veteran’s low back disability are best evaluated as 40 percent disabling for the entire period on appeal. However, a rating greater than 40 percent is not warranted for any period on appeal. For an evaluation greater than 40 percent, the evidence must show unfavorable ankylosis. Here, the evidence of record, including the March 2015 and March 2017 DBQs do not indicate that there was unfavorable ankylosis during the appeal period. Rather, the DBQs contain specific findings of no ankylosis. Given the specific definition of unfavorable ankylosis in note 5 to the general rating formula, the Veteran’s lay statements indicating difficulty bending and lifting do not reflect that her low back disability symptoms have more nearly approximated unfavorable ankylosis to warrant greater than a 40 percent rating. In Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the Court indicated that where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the cited regulations are not for application. See id. at 84-85 (although the Secretary suggested remand because of the Board’s failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). Here the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. 38 C.F.R. §§ 4.40 and 4.45 and the cases interpreting them are therefore not for application. As previously noted, the March 2015 DBQ indicates that the Veteran suffers from IVDS, however the evidence reflects that the Veteran’s IVDS has not caused incapacitating episodes, thus a higher rating under the Formula for Rating IVDS is not warranted. For the foregoing reasons, a rating of 40 percent, but no higher, is warranted for the Veteran’s low back disability. 3. Bilateral arm carcinoma scars The Veteran testified that the scars which are the result of removed carcinomas are “itchy”. The Veteran’s bilateral arm carcinoma scars are currently rated noncompensable under DC 7818-7805. Hyphenated DCs are used when a rating under one code requires use of an additional DC to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Here, the hyphenated diagnostic code indicates that the Veteran’s malignant skin neoplasms (other than malignant melanoma) (DC 7818) are rated under the criteria for scars not of the head, face, or neck, that are not associated with underlying soft tissue damage (DC 7802) and other scars, including linear scars, and other effects of scars (DC 7805). DC 7818 for malignant skin neoplasms (other than malignant melanoma) notes that the Veteran’s right hand basal cell carcinoma and right upper arm squamous cell carcinoma are to be rated under scars or impairment of function. The Note in DC 7818 also provides that if a skin malignancy requires therapy that is comparable to that used for systemic malignancies, i.e., systemic chemotherapy, X-ray therapy more extensive than to the skin, or surgery more extensive than wide local excision, a 100-percent evaluation will be assigned from the date of onset of treatment, and will continue, with a mandatory VA examination six months following the completion of such antineoplastic treatment, and any change in evaluation based upon that or any subsequent examination will be subject to the provisions of §3.105(e) of this chapter. If there has been no local recurrence or metastasis, evaluation will then be made on residuals. If treatment is confined to the skin, the provisions for a 100-percent evaluation do not apply. 38 C.F.R. § 4.118, DC 7818. DC 7800 provides ratings for scars of the head, face, or neck. At the outset, the Board notes that DC 7800 is not applicable in this instance as DC 7800 does not provide ratings for scars of the upper extremities. Under DC 7801, a 10 percent rating is warranted for scars or burn scars due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage with 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 rating is warranted for 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 rating is warranted for 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 rating is warranted for an area or areas of 144 square inches (929 sq. cm.) or greater. Note (1) provides that, for the purposes of DCs 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Note (2) provides that a separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body. Combine the separate evaluations under 38 C.F.R. § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. Under DC 7802, a 10 percent rating is warranted for burn scars or scars not of the head, face, or neck, that are not associated with underlying soft tissue damage, for an area or areas of 144 square inches (929 sq. cm.) or greater. Under DC 7804, one or more 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; five or more scars that are unstable or painful warrant a 30 percent rating. 38 C.F.R. § 4.118, DC 7804. These provisions were not changed by the August 13, 2018, revision. 38 C.F.R. § 4.118, DC 7804. Note (1) to DC 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar and that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7804. For DC 7804, Note (2) provides that that if one or more scars are both unstable and painful, 10 percent will be added to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under DCs 7800, 7801, 7802, or 7805 may receive additional evaluation under DC 7804 when applicable. 38 C.F.R. § 4.118, DC 7804. Under DC 7805, other scars, including linear scars, and other effects of scars evaluated under DCs 7800, 7801, 7802, and 7804, any disabling effect(s) not considered in a rating provided under DCs 7800 through 7804 will be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118, DC 7805. Effective as of August 13, 2018, the phrase “including linear scars” was deleted from DC 7805; otherwise, the criteria remain the same. 38 C.F.R. § 4.118, DC 7805. This amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change. Thus, it can only be applied in this matter from August 13, 2018, forward. A March 2015 DBQ indicated that the Veteran’s bilateral upper arm basal cell carcinomas had improved since removal. The physician noted no scarring or disfigurement of the head, face, or neck, but reported that the Veteran had a malignant skin neoplasm for which the Veteran underwent surgery. The DBQ reflected no debilitating or non-debilitating episodes in the past 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. The physician reported that the Veteran did not have any other pertinent physical findings, complications, conditions, signs and/or symptoms related to her bilateral upper arm basal cell carcinomas. The physician noted a 7 cm scar on the right upper arm. A March 2017 DBQ reflected that the Veteran had a surgical scar on the right arm and a scar on her lower back. The examining physician reported that the Veteran’s scars were not painful or unstable, and not due to burns. The right upper arm scar was 12 cm in length, and the low back scar was 5 by 0.25 cm. The examining physician also noted that the Veteran’s bilateral upper arm basal cell carcinoma had resolved and did not cause scarring or disfigurement of the head, face, or neck. The physician noted that the Veteran did not have any benign or malignant skin neoplasms, did not have any systemic manifestations due to any skin diseases, and has not been treated with oral or topical medications in the past 12 months for any skin condition. The Veteran did not report any debilitating or non-debilitating episodes in the past 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. The Veteran did not have any visible skin conditions, benign or malignant neoplasms or metastases, or skin conditions that impacted her ability to work. Based on the evidence of record, the Veteran’s bilateral arm scar symptomatology more nearly approximates one or more unstable or painful scars as contemplated by a 10 percent rating under DC 7804. While both the March 2015 and March 2017 DBQs indicated that the Veteran’s scars did not cover a total area equal to or greater than 39 square cm, and the March 2017 physician reported that the scars were are not painful or unstable, the Veteran testified that the scars were “itchy”. The Veteran is competent to report the symptoms associated with her bilateral arm scars and the Board has no reason to challenge the credibility of her contentions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). However, the Veteran has not contended, and the evidence of record does not suggest, that the Veteran has 3 or 4 scars that are unstable or painful, or scars associated with underlying soft tissue damage with an area of at least 77 sq. cm, therefore a higher 20 percent rating is not warranted under DCs 7801, and 7804. The evidence is thus at least evenly balanced as to whether the Veteran’s bilateral arm scar symptomatology more nearly approximates symptomatology contemplated by a 10 percent disability rating. As the reasonable doubt created by this approximate balance in the evidence must be resolved in favor of the Veteran, entitlement to a 10 percent rating, but not higher, is warranted for the entire appeal period. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 4. TDIU The issue of entitlement to a TDIU is a potential part of any rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). During the Veteran’s January 2021 hearing, she provided testimony indicating that her service connected low back and hip disabilities prevent her from working. Thus, the issue of entitlement to a TDIU has been raised by the record, and as part and parcel of the claim for an increased rating for a low back and right hip disability. A TDIU is provided where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16 (a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment, by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16 (a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. See Van Hoose, 4 Vet. App. at 363. “A high rating in itself is a recognition that the impairment makes it difficult to obtain or keep employment.” Id. The ultimate question, however, is “whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.” Id. In light of this decision, the Veteran is service connected for right hip disability, rated as 100 percent disabling from May 6, 2013, and 70 percent disabling from February 1, 2014; left hip disability, rated 10 percent disabling from August 1, 2005, 100 percent disabling from April 17, 2018, and 30 percent disabling from June 1, 2019; major depressive disorder, rated 10 percent disabling from August 1, 2005, and 30 percent disabling from January 14, 2020; low back disability rated 10 percent disabling from August 1, 2005, and 70 percent disabling from May 6, 2013; right toe arthritis, rated 10 percent disabling from August 1, 2005; left toe arthritis, rated 10 percent disabling from August 1, 2005; bilateral tinnitus, rated 10 percent disabling from August 1, 2005; temporomandibular joint dysfunction, rated 10 percent disabling form August 1, 2005; allergic rhinitis, rated noncompensable from August 1, 2005, and 10 percent disabling from March 18, 2015; bilateral arm scars rated 10 percent disabling from May 6, 2013; left ankle spur, bilateral pes planus and left heel spur, hypertension, gastric arteriovenous malformation, and anemia each rated noncompensable from August 1, 2005; low back disability scars, rated noncompensable from August 13, 2015; right sciatic nerve radiculopathy, rated 10 percent disabling from March 23, 2015, and noncompensable from March 1, 2017; and left hip scars, rated noncompensable from April 17, 2018. The Veteran thus has a combined rating of at least 70 percent from May 6, 2013 with one disability rated at least 40 percent disabling excluding any period of a temporary 100 percent disability evaluation, and meets the criteria for the assignment of a TDIU on a schedular basis from that date. See 38 C.F.R. § 4.16 (a)(2). Nonetheless, to grant TDIU it must be found that the Veteran is unable to secure or follow a substantially gainful occupation due to her service-connected disabilities. The Veteran testified that due to her hip replacements, she feels disabled and cannot do the “best job for a company”, and that her back and hip disabilities make it hard to do a regular full-time job. The Veteran’s 8940 Application for Increased Compensation Based on Unemployability reflected that the Veteran’s hip and back disabilities prevented her from working, and she reported becoming too disabled to work May 31, 2015. The Veteran indicated that she worked as an office assistant. She also reported finishing 4 years of college, and receiving a masters after becoming too disabled to work. The March 2015 physician opined that the Veteran’s low back disability limited her employment to sedentary occupation, stating that she should avoid heavy lifting. The May 2016 physician opined that the Veteran’s right hip disability impacted her ability to work as it limited prolonged standing and walking. The March 2017 physician noted that the Veteran’s lumbar spine disability impacted her ability to work as it impacted her ability to bend and lift. The above evidence of record reflects that the Veteran’s service connected disabilities have rendered her unemployable. Her low back and hip disabilities preclude her from being able to perform the duties required for the type of position the Veteran is qualified for considering her level of education and experience. The Veteran has worked as an office assistant, a position which commonly requires some lifting, bending, and walking. The Veteran has competently and credibly testified that she would be unable to fulfill her duties as an office assistant due to the pain and discomfort brought upon by her hip and low back disabilities, and the previously mentioned physicians have noted that her disabilities impact her ability to work. The evidence is thus at least evenly balanced as to whether the Veteran is unable to secure or follow a substantially gainful occupation due to her service connected disabilities. Therefore, entitlement to a TDIU is warranted. It appears that the Veteran stopped working due to her service connected disabilities on May 31, 2015. However, the Board will not specify the effective date of the TDIU to allow the RO to do so in the first instance. See Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) (“To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating.”) As noted above, the issue of entitlement to a TDIU has been raised as part and parcel of the rating claims on appeal, thus the date of claim for purposes of assigning an effective date for TDIU is not the date of the formal TDIU claim (VA Form 8940), but, rather, up to a year prior to the May 6, 2013 date of claim for an increased rating for the disabilities which render the Veteran unemployable. If the Veteran is dissatisfied with the assigned effective date assigned by the AOJ after implementing the grant of TDIU, that determination can be appealed. To the extent that the TDIU could be rendered moot for a portion of the appeal period by the receipt of a 100 percent rating and Special Monthly Compensation pursuant to 38 U.S.C. § 1114 (s), the Board will allow the RO to make this determination in the first instance, after implementing the Board’s decision and assigning the appropriate effective dates. Urban, 18 Vet. App. at 145. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maddox, 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.