Citation Nr: 21013785 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 18-30 565 DATE: March 10, 2021 ORDER A 20 percent initial compensable evaluation for residual scar, left middle low back, status-post gunshot wound (GSW) iliac crest fracture surgery, when evaluated under amended Diagnostic Code in conjunction with the service-connected colostomy and laparotomy scar to the left lower quadrant and service connected residual scars, GSW, and colostomy bag closed scar, is granted. REMANDED Entitlement to an evaluation in excess of 50 percent posttraumatic stress disorder (PTSD) with alcohol use disorder prior to November 17, 2017, is remanded. Entitlement to an evaluation in excess of 70 percent PTSD with alcohol use disorder from November 17, 2017, is remanded. Entitlement to a total disability evaluation based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Throughout the applicable period the residual scar, left middle low back, status-post GSW iliac crest fracture surgery measured 34.5 cm. and was associated with underlying soft tissue damage. 2. Throughout the applicable period the Veteran’s scars that have exhibited underlying soft tissue damage have had a surface area 110.8 sq. cm., but no greater, and have not approximated an area or areas of at least 72 sq. in. (929) sq. cm. or greater. CONCLUSION OF LAW The criteria for entitlement to 20 percent, but no greater, initial compensable evaluation is warranted for residual scar, left middle low back, status-post GSW iliac crest fracture surgery as evaluated under Diagnostic Code 7801 in conjunction with service-connected colostomy and laparotomy scar to the left lower quadrant, service-connected residual scars, GSW, and colostomy bag closed scar, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7; 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7803, 7804, 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from July 1966 to July 1969. This matter is on appeal from rating decisions dated in December 2016 and January 2018. In his May 2018 and May 2020 Substantive Appeals, the Veteran requested a videoconference hearing before the Board. He was notified in an October 2020 letter that he was scheduled for a Board hearing in December 2020. However, in correspondence received by VA in November 2020, he withdrew his hearing request. In a November 19, 2020, written request, the Veteran’s attorney requested that the Board stay adjudication of the present matter for 90 days to allow for the submission of additional argument evidence. VA held the case in abeyance until 90 days after this request. Additional argument was received on November 20, 2020, but the Veteran did not submit any additional argument or evidence within the 90-day period. 1. Entitlement to an initial increased evaluation for residual scar, left middle low back, status-post GSW iliac crest fracture surgery. The Veteran asserts that the residual scar, left middle low back, status-post GSW (left low back scar) warrants a separate 10 percent evaluation. He specifically contends that because this scar is painful that the 10 percent evaluation is warranted under DC 7804. 38 C.F.R. § 4.118. The AOJ has evaluated this scar as non-compensable under DC 7801 but has considered this scar under Diagnostic Code 7804 in conjunction with a surgical scar of the midline abdomen in awarding the 10 percent evaluation. Id. VA published a final rule amending its regulations on skin disabilities, effective August 13, 2018. The amendment, in pertinent part, added a General Rating Formula for the Skin (General Rating Formula) for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824, and amended diagnostic codes 7801, 7802, 7817, 7819, 7825, 7826, 7827, and 7829. See 83 Fed. Reg. 32,592 (July 13, 2018). The August 13, 2018, skin amendments amended DCs 7801 and 7802 by characterizing multiple scars by 6 body zones affected rather than by extremity. In addition, under the amendments, two or more skin conditions may be combined in accordance with § 4.25 only if separate areas of skin are involved. If two or more skin conditions involve the same area of skin, then only the highest evaluation shall be used. See 38 C.F.R. § 4.118(b) (August 13, 2018). There are no changes to DCs 7800, 7804, and 7805 under the August 13, 2018 amended version of the skin criteria. In other words, DCs 7800, 7804, and 7805 are exactly same both prior to and after August 13, 2018. Claims pending prior to the August 2018 effective date will be considered under both old and new rating criteria, and whichever criteria are more favorable to the Veteran will be applied. Pre-amendment DC 7801 provides for the assignment of a 10 percent disability rating for scars that are not of the head, face, or neck, that are deep and nonlinear in 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 evaluation is warranted for an area exceeding 12 square inches (77 sq. cm.). For an area exceeding 72 square inches (465 sq. cm.) a 30 percent evaluation is provided. For an area exceeding 144 sq. in. (929 sq. cm.), a maximum 40 percent evaluation is warranted. Scars in widely separated areas as on two or more extremities or on anterior or posterior surfaces of extremities or trunk, will be rated separately. 38 C.F.R. § 4.118, DC 7801, Note (2) (2017). A deep scar is one associated with underlying soft tissue damage. Id. Note (1). Pre-amendment DC 7802 provides that scars that are not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm) or greater warrant the assignment of a 10 percent rating. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802 (2017). New notes for the amended DCs 7801 and 7802 define various zones of the body and indicate that separate evaluations may be assigned for each affected zone, and that if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned. See 38 C.F.R. § 4.118, DCs 7801 and 7802, Note (2). The amended DC 7801 now discusses burn scars or scars due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. To be assigned a 10 percent disability rating, the scar in question must cover an area or areas of at least 6 square inches (39 sq. cm) but not less than 12 square inches (77 sq. cm). A 20 percent evaluation is warranted for an area exceeding 12 sq. in. (77 sq. cm.). For an area exceeding 72 sq. in. (465 sq. cm.) a 30 percent evaluation is provided. For an area exceeding 144 sq. in. (929 sq. cm.), a maximum 40 percent evaluation is warranted. 38 C.F.R. § 4.118, DC 7801. The amended DC 7802 is for burn scars or scars due to other causes, not of the head face or neck, that are not associated with underlying soft tissue damage. A 10 percent disability rating is warranted if the scar covers an area or areas of 144 square inches (929 sq. cm) or greater. 38 C.F.R. § 4.118, DC 7802. A 10 percent disability rating is the only rating available under the amended DC 7802. Under DC 7804, one or two scars that are unstable or painful warrants a 10 percent rating. Three or four scars that are unstable or painful warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note (1) to DC 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. Turning to the evidence at hand, in August 2015 the Veteran was provided a VA scars examination. Examination of the low back scar resulted in assessment of a superficial and nonlinear scar that measured 34 cm. x 1 cm (34 sq. cm.). It was not characterized as painful or resulting in limitation of function. It was not deep or unstable. It did not impact the Veteran’s ability to work. In December 2017, shortly after the Veteran filed the present claim, he was afforded a VA scars examination. Examination showed a 23 cm. x 1.5 cm (34.5 sq. cm.) scar of the low back from post GSW iliac crest surgery, characterized as deep and nonlinear. In characterizing the scar as deep, the examiner considered a deep scar as one involving underlying soft tissue damage, as defined in the examination report. The scar was also tender (painful) to palpation. It was not unstable and did not result in limitation of function. Here, the Veteran is in receipt of disability evaluations for other scars, none of which is the subject of this appeal. Of those scars, a surgical scar of the midline abdomen, is evaluated as 10 percent disabling under DC 7804 in conjunction with the low back scar on appeal. See January 29, 2018, Rating Decision, pp. 5-6. In other words, the scar on appeal has been considered under DC 7804 and the 10 percent evaluation under this diagnostic code comprises both scars. The remaining scars are of the anterior trunk and have been collectively evaluated under the pre-amended DC 7801 as 10 percent disabling, having a total surface area of at least 6 sq. in. (39 sq. cm.) but less than 12 sq. in. (77sq. cm.). Notably, under the pre-amended DC 7804 the present deep nonlinear scar of the posterior trunk, i.e. low back, could not have been considered with the service-connected scars affecting the anterior trunk. However, under the amended criteria these scars can now be considered together, if this is more favorable to the Veteran. Initially, the Board will address the applicability of DC 7804. Here, the Veteran is in receipt of a 10 percent evaluation under DC 7084 for a painful surgical scar of the midline abdomen, and the AOJ has considered the present low back scar under this DC in assigning the evaluation. Thus, a separate evaluation for the low back scar involved herein would compensate the Veteran twice for the same disability. The practice of assigning multiple disability ratings for the same disability (known as pyramiding) is to be avoided and separate disability ratings may not be assigned for duplicative or overlapping symptomology. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). However, if the posterior low back scar is removed from consideration under DC 7804, a 20 percent evaluation is warranted under new DC 7804 when the posterior low back scar is considered along with the scars of the anterior trunk. Moreover, if the low back scar is removed from the evaluation under 7804, there is no effect on the 10 percent evaluation of the surgical scar of the midline abdomen under DC 7804 such that any prejudice would result. 38 C.F.R. § 4.118. Under amended DC 7801 a 20 percent evaluation is warranted. Here, VA examination in December 2017 reflected that the posterior low back scar measured 34.5 sq. cm., and, in addition to being painful, was also deep (associated with underlying soft tissue) and nonlinear. Amended DC 7801 provides for evaluation of scars, not of the head face or neck, that are associated with underlying tissue damage, and provides for a 20 percent evaluation if the total area of scars with underlying tissue damage measures at least 12 sq. in. (77 sq. cm.) but less than 72 sq. in. (465 sq. cm.). Here, the scars of the anterior trunk measure 76.3 sq. cm. in area. When the surface area of the posterior low back scar is added a total area of 110.8 sq. cm. is affected by scars associated with underlying soft tissue damage. Thus, a 20 percent evaluation is warranted. 38 C.F.R. § 4.118, DC 7801. An evaluation in excess of 20 percent under the amended DC 7801 criteria is not established. In order to substantiate an evaluation in excess of 20 percent, the affected area or areas must measure 72 sq. in. (465 sq. cm.) or greater. The area involved here measures 110.8 sq. cm. Accordingly, a 20 percent evaluation is not warranted. Id. DC 7802 is inapplicable here, both under the new and old criteria. This DC cannot provide for a higher evaluation for this scar because the scar does not meet or approximate an area of 144 sq. in. (929 sq. cm). Moreover, the scar is deep and involving underlying soft tissue damage. DC 7802 is applicable to superficial nonlinear scars under the old criteria, and to scars not associated with underlying tissue damage under the new criteria. DC 7802 is inapplicable. Butts v. Brown, 5 Vet. App. 532, 539 (1993). There are no other unevaluated effects of the low back scar such that consideration of another diagnostic code is warranted. VA examinations dated in August 2015 and December 2017 show that the scar does not otherwise result in limitation of function and has not impacted the Veteran’s ability to work. As outlined above, the Board has considered DCs 7801 and 7804 in evaluating the present scar, which has manifested by a deep (associated with underlying soft tissue damage), nonlinear, and painful scar. The manifestations of the low back scar are contemplated by the DCs considered herein. 38 C.F.R. § 4.118, DCs 7801, 7802, 7804, 7805. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 50 percent PTSD with alcohol use disorder prior to November 17, 2017, is remanded. 2. Entitlement to an evaluation in excess of 70 percent PTSD with alcohol use disorder from November 17, 2017, is remanded. 3. Entitlement to a TDIU is remanded. These issues must be remanded to attempt to obtain pertinent Federal records. VA has a duty to make as many requests as necessary to obtain records in the custody of a Federal department or agency unless concluding they do not exist or that further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). The Veteran has reported that he was employed by the Social Security Administration (SSA) for approximately 14 years and that he retired due to his PTSD with alcohol use disorder. SSA has verified his employment and identified the Veteran’s departure from federal service was due to retirement. However, VA has not attempted obtain any of these employment records. An August 2019 VA treatment note indicates that he status of the Veteran’s PTSD was unclear, and it was recommended that he follow up with mental health services. He last underwent a private mental health evaluation in November 2017 and a VA examination in September 2016. A remand is also required to obtain a current VA examination to assess the current severity of the Veteran’s PTSD with alcohol use disorder. The matters are REMANDED for the following actions: 1. Contact the United States Office of Personnel Management and/or SSA to obtain copies of all medical and administrative records in connection with the veteran’s SSA employment and his retirement. If appropriate, a consent form for the release to VA of those records should be obtained from the Veteran. Once obtained, such records must be associated with the other evidence contained in the veteran’s claims folder. Any negative response(s) should be documented in the record and communicated to the Veteran. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD with alcohol use disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected PTSD with alcohol use disorder. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. If the benefit sought 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. R.R. Watkins Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph R. Keselyak, 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.