Citation Nr: 21011940 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-55 902 DATE: March 3, 2021 ORDER Entitlement to a 10 percent rating, but no higher, for a service-connected posterior trunk scar, effective date of February 7, 2014, is granted. REMANDED Entitlement to a rating higher than 10 percent for back disability prior to February 11, 2020 and higher than 20 percent thereafter is remanded. Entitlement to rating higher than 10 percent for peripheral neuropathy of the right lower extremity is remanded. Entitlement to rating higher than 10 percent for peripheral neuropathy of the left lower extremity is remanded. FINDINGS OF FACT 1. The date that entitlement arose for the Veteran’s posterior trunk scar is February 7, 2014, the date of the Veteran’s back surgery. 2. The evidence of record indicates that throughout the appellate period the Veteran’s posterior trunk scar has been manifested by pain. CONCLUSION OF LAW The criteria for a 10 percent rating, but no higher, for a service-connected posterior trunk scar have been met, effective February 7, 2014. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 3.321, 4.1, 4.3, 4.7, 4.14, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1998 to July 2006. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a travel board hearing before the undersigned Veterans Law Judge (VLJ) in August 2019. The hearing transcript is of record. The Board remanded the claim in December 2019 for further development by the RO. In a July 2020 rating decision, the RO granted a 10 percent rating for service-connected painful scar, posterior trunk, effective February 11, 2020, pursuant to Diagnostic Code (DC) 7804. 38 C.F.R. § 4.118. As this grant does not represent a total grant of benefits sought on appeal, the claim for an increased rating remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The case has been returned to the Board for further appellate action. Entitlement to a 10 percent rating, but no higher, for a service-connected posterior trunk scar, effective February 7, 2014 A disability rating is 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 military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as ‘staged ratings.’ Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s scar is rated under DC 7804. A 10 percent rating is warranted for one or two scars that are unstable or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful. A 30 percent rating is warranted for five or more scars that are unstable or painful. Note 1 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note 3 provides that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. 38 C.F.R. § 4.118, DC 7804. The Board notes that this disability was previously rated as noncompensable under DC 7805, effective February 9, 2018. DC 7805, which is assigned for other scars, provides that any disabling effects not considered in a rating shall be evaluated under DC 7800-04. As noted above, in a July 2020 rating decision, the RO determined that DC 7804 is for application and assigned a 10 percent rating thereunder as of February 11, 2020. The Veteran contends that, at minimum, his 10 percent disability rating should have been awarded as of the date of his 2014 back surgery. See January 2021 Appellate brief. In general, the effective date of an evaluation and award of compensation based on an original claim or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). If it is factually ascertainable that an increase in severity occurred within the year preceding receipt of the claim, then the effective date shall be the date of that increase. 38 C.F.R. § 3.400(o)(2). Here, the effective date for the Veteran’s 10 percent rating under DC 7804 is assigned as February 11, 2020, which is the date of his VA examination. The Board finds that an earlier effective date of January 7, 2014, is warranted, as this the date of the Veteran’s back surgery, or the date entitlement arose. See VA treatment records dated February to March 2014. The Board has also considered whether a higher rating is warranted. Based on a review of the evidence, the Board does not find that a higher disability rating is warranted. The Veteran competently and credibly testified at the August 2019 Board hearing that his scar became larger following surgery, and that he has experienced tenderness, swelling, and irritation since then. See also January 2021 Appellate brief. The Veteran is competent to report his subjective symptoms, such as pain and tenderness, and his reports are corroborated by the February 2020 VA examination report which noted pain with the wearing of belts or clothing and tenderness to palpation. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (stating that a veteran is competent to report on all things of which he has personal knowledge derived from his own senses). The Board finds that a rating in excess of 10 percent is not warranted as DC 7804 provides a maximum 10 percent rating for a single painful scar. Additionally, there is no evidence that the Veteran’s scar is unstable. The Board has considered whether the Veteran is entitled to a higher disability rating under alternative diagnostic codes. However, the evidence does not show the Veteran suffers from symptoms better represented by another diagnostic code. Thus, a higher rating under another diagnostic code is not warranted. In sum, the Board finds that a disability rating of 10 percent, but no higher, is warranted for the Veteran’s scar effective February 7, 2014. To the extent that the Veteran contends entitlement to a higher rating, the preponderance of the evidence is against the claim; there is no reasonable doubt to be resolved; and any further increased rating is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a rating higher than 10 percent for back disability prior to February 11, 2020 and higher than 20 percent thereafter is remanded. Pursuant to the December 2019 Board remand directives, the RO obtained an examination to determine the current severity of the Veteran’s service-connected back disability. The Board finds that the February 2020 VA examination of the Veteran’s back is inadequate as it is based on an inaccurate factual premise. The examiner stated that the Veteran does not report flare-ups. The evidence of record indicates that this statement is inaccurate. The Veteran reported severe flare-ups at the August 2019 Board hearing. The examiner did not address flare-ups, provide an estimate of additional loss of range of motion during flare-ups, or elicit information on the severity, frequency, duration, or functional loss during flare-ups. This omission is in contravention of the holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board also notes that the examiner did not provide range of motion values for weight-bearing and non-weight bearing in contravention of the holding in Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, the case must be returned for an addendum opinion. Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA undertakes an examination, it must provide an adequate one). 2. Entitlement to rating higher than 10 percent for peripheral neuropathy of the right lower extremity is remanded. 3. Entitlement to rating higher than 10 percent for peripheral neuropathy of the left lower extremity is remanded. The exam regarding the Veteran’s back disability may reveal information relevant to the rating for his peripheral neuropathy of the bilateral lower extremities. Therefore, those claims are intertwined with the increase rating claim for the Veteran’s back disability, and they must be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183(1991) (two claims are “inextricably intertwined” when they are so closely tied together that a final decision on one claim cannot be rendered until a decision on the other). The Board also notes that the December 2019 VA examiner elected not to complete a peripheral nerves disability benefits questionnaire (DBQ). Upon remand, the examiner should complete a peripheral nerves DBQ to indicate the current severity of the Veteran’s disability. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, schedule the Veteran for a VA examination by an appropriate medical professional to determine the current severity of the Veteran’s service-connected back and peripheral neuropathy disabilities. The examiner must record all pertinent medical complaints, symptoms, and clinical findings in detail. The examiner should complete a peripheral nerves DBQ for the Veteran’s bilateral peripheral neuropathy disability. As for the back disability, range of motion testing should be tested in both active and passive motion, in weight-bearing and non weight-bearing. The examiner should also state whether the examination is taking place during a period of flare-up or after repeated use over a period of time. If not, the examiner should elicit information from the Veteran about the severity, frequency, duration, characteristics, precipitating and alleviating factors, and extent of functional impairment experienced both during a flare-up and following repeated use over time. The examiner should note that the Veteran has previously reported flare-ups. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. A complete rationale must be provided for any opinion offered. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Minaya, 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.