Citation Nr: 21014927 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-15 053 DATE: March 16, 2021 ORDER An initial rating in excess of 10 percent for a painful right neck scar is denied. A separate initial rating of 20 percent for painful limitation of motion of the cervical spine due to the right neck scar is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) since September 7, 2016, is granted. Special monthly compensation under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) since September 7, 2016, is granted. FINDINGS OF FACT 1. The Veteran is in receipt of a maximum 80 percent rating for disfigurement due to his right neck and facial scar, and his scar is painful but not unstable. 2. The Veteran has additional effects from his right neck and facial scar of painful limitation of motion of the cervical spine that is additional to the pain of the scar itself, with cervical spine forward flexion limited to 30 degrees (but no lower) when considering additional loss with repeated use or flare-ups, with no ankylosis. 3. The Veteran has a combined disability rating of 90 percent effective since July 26, 2013, and 100 percent since September 7, 2016, with a right neck scar rated 80 percent disabling effective since July 26, 2013; and PTSD with alcohol use disorder rated 50 percent disabling, effective since September 7, 2016. 4. The Veteran’s inability to obtain or maintain substantially gainful employment since at least September 7, 2016, is due to his PTSD with alcohol use disorder. 5. With the grant of a TDIU since September 7, 2016, the Veteran has a single 100 percent disability of TDIU based on PTSD with alcohol use disorder and separate additional disabilities rated 60 percent or higher for his right neck scar. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for a painful right neck scar are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.118, Diagnostic Code 7804 (2017 & 2020). 2. The criteria for a separate initial rating of 20 percent for painful limitation of motion of the cervical spine due to the right neck scar are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.71a, Diagnostic Code 5237, 4.118, Diagnostic Code 7805 (2017 & 2020). 3. The criteria for a TDIU since September 7, 2016, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.3, 4.16. 4. The criteria for special monthly compensation under 38 U.S.C. § 1114(s) since September 7, 2016, are met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 2005 to February 2008 and from July 2010 to June 2012. He served in Iraq and was awarded the Combat Infantryman Badge. In September 2018, the Board remanded the issues of service connection for a back disability and right knee disability, a higher initial rating than 10 percent for a right neck scar, and entitlement to a TDIU for additional development and adjudication. The Board noted that a July 2015 VA treatment record indicated that the Veteran reported being unable to maintain substantially gainful employment due to his now service-connected psychiatric symptoms, thereby raising a TDIU claim for his appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board directed the updated VA treatment records and any additional records identified by the Veteran be obtained, and VA examinations be obtained for the back, knee, and scar disabilities. VA treatment records were obtained, the Veteran did not identify additional records, and VA examinations were provided, thus satisfying the directives. An April 2020 rating decision granted service connection for the right knee and back disabilities, which was a full grant of those benefits sought on appeal. Therefore, although the Veteran’s representative addressed these issues in an appellate brief, they are no longer on appeal or under the Board’s jurisdiction. The issues of entitlement to a higher initial rating for the right neck scar, to include a separate additional rating, and entitlement to a TDIU remain on appeal to the extent discussed under those issues below. Furthermore, the Board has jurisdiction over an inferred claim for special monthly compensation based on the decision herein to grant a TDIU for a portion of the appeal period, as explained below. 1. and 2. Initial rating in excess of 10 percent for painful right neck scar; separate 20 percent rating for limitation of motion due to the right neck scar VA’s percentage ratings are based on the average impairment of earning capacity as a result of service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). The most relevant information in determining the appropriate initial disability rating pertains to the severity of the disability since the effective date of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings may be awarded if there are decreases or increases in symptomatology the meet the criteria for a different rating for a distinct period during the appeal period. Id. In this case, the April 2020 rating decision granted an increase to 80 percent for the Veteran’s right neck scar based on six or more characteristics of disfigurement under Diagnostic Code (DC) 7800, which is the maximum rating available under that code, and a separate rating of 10 percent for a painful scar under DC 7804. See 38 C.F.R. § 4.118. Both of these ratings were properly made effective July 6, 2013, the date of the Veteran’s claim. Although the 80 percent maximum rating is a full grant under that DC 7800, a higher rating is potentially available under DC 7804 or for a separate rating under DC 7805. Therefore, this aspect was not a full grant. The criteria for rating skin disabilities, including scars, were amended, effective August 13, 2018. See 83 Fed. Reg. 32,592 (July 13, 2018). The Veteran is entitled to application of the criteria that are most favorable to his claim, but an award based on the amended regulations may not be made effective before the effective date of the change. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Board will consider both sets of criteria. Under either version, under DC 7804, a 10 percent rating is assigned for one or two scars that are unstable or painful; and a 20 percent rating is assigned for three or four scars that are unstable or painful. An unstable scar is one where there is frequent loss of covering of skin over the scar for any reason. If one or more scars are both painful and unstable, an additional 10 percent rating will be added to the evaluation based on the total number of scars. A scar rated under DCs 7800 may also receive an evaluation under this code. 38 C.F.R. § 4.118, DC 7804 and Notes. Under DC 7805, any disabling effects of scars that are not contemplated by a rating under DCs 7800 to 7804 should be rated under an appropriate code. Id., DC 7805. The November 2019 VA examination reflects that the Veteran has three facial or neck scars: a right anterior ear scar, a right posterior auricle scar, and a right posterior ear scar curving to the right lower neck. Only one of these scars is painful, namely, the right posterior ear scar curving to the right lower neck. None of the scars is unstable. Although the March 2014 VA examination noted only one scar and no pain, the November 2019 VA examination provided more accurate information. Therefore, a higher rating is not warranted under DC 7804. However, resolving reasonable doubt in the Veteran’s favor, the evidence supports a separate 10 percent rating for additional effects under DC 7805. During the November 2019 VA scar examination, the Veteran described limitation from his three scars of difficulty turning his head to the left due to pulling and tightness. Similarly, during a November 2019 VA neck examination that noted a diagnosis of right parotidectomy, which resulted in his scars, the Veteran reported that sometimes turning his head to the left triggers spasms like his face is being pulled down from the inside, causing severe pain. The Veteran had reduced forward flexion of the cervical spine to 35 degrees, as well as reduced extension and left lateral flexion to 40 degrees each, and reduced right and left lateral rotation to 45 degrees each, for combined range of motion of 250 degrees. After repetitive testing, there was additional loss due to pain to 30 degrees of forward flexion and extension, and ranges for other movements increased or decreased, to result in a combined range of motion of 265 degrees. The examiner stated that the Veteran does not have cervical spine joint problems, but he does have difficulty and impairment in the ability to turn his head to the left due to his scarring. Although the March 2014 VA examination noted no limitation due to the scar, the November 2019 VA examinations provided more accurate information and appears to address the Veteran’s symptoms for the entire period since his 2013 claim. In his scar examination, the Veteran described pain or tenderness of the scar itself as well as pain that feels like a paralysis or spasm at times when he tries to turn is neck. Therefore, this pain and difficulty turning his head due to the scar is an additional manifestation or effect that the pain of the scar itself. Therefore, a separate rating is warranted based on limiting effects under DC 7805. Under the General Rating Formula for Diseases and Injuries of the Spine, the cervical spine (neck) will be assigned a 10 percent rating if there is forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating will be assigned if there is forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Higher ratings of 30, 40, or 100 percent require additional limitation or ankylosis. 38 C.F.R. § 4.71a, DC 5237. The Veteran has painful limitation of motion of the cervical spine due to his right neck scar that is additional to the pain of the scar itself. Although the Veteran described limitation when moving his head to the left, the examiner stated that there was no cervical spine joint problem, and the Veteran still had limited forward flexion of the cervical spine. Therefore, it appears that this limitation is also due to his service-connected scarring. As he had limitation of forward flexion to 30 degrees after repetitive testing, the criteria for a 20 percent rating are met. There is no argument or suggestion of ankylosis or additional limitation of forward flexion to 15 degrees or less even with flare-ups or repeated use over time. Thus, resolving reasonable doubt in his favor, a 20 percent rating, but no higher, is warranted. In summary, reasonable doubt has been resolved in the Veteran’s favor to assign a 20 percent rating for limitation of motion of the neck due to his scar, which is granted. The manifestations of his scar have remained relatively stable over time, and the preponderance of the evidence is otherwise against a higher or separate rating for the right facial and neck scar. The appeal is otherwise denied. 3. and 4. Entitlement to a TDIU; special monthly compensation A July 2020 supplemental statement of the case (SSOC) denied a TDIU, finding that a TDIU is moot because the Veteran already has a 100 percent combined rating and an earlier effective date for a TDIU is not warranted by the evidence. However, the award of a 100 percent combined rating does not necessarily moot entitlement to a TDIU. See Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008). Most frequently, special monthly compensation (SMC) is available if there is a single service-connected disability rated at 100 percent and separate disabilities that are independently ratable at 60 percent or higher. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Although no additional disability compensation may be paid when a total (100 percent) schedular disability rating is already in effect, an award of a TDIU predicated on a single disability may form the basis for such an award of SMC. Bradley, 22 Vet. App. at 293-94. Additionally, SMC shall be granted as an inferred issue where it is raised by the record in an increased rating appeal, without the need for a separate claim. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); see also Buie, 24 Vet. App. at 250-51. TDIU will be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, a schedular percentage threshold must be met. If there is only one service-connected disability, it shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. However, VA may still grant TDIU on an extraschedular basis if this threshold is not met if the evidence shows unemployability due to service-connected disabilities. 38 C.F.R. § 4.16. In determining unemployability, there is an economic component, which includes whether any employment was marginal, and a non-economic component, which includes mental and physical capacity based on occupational history, education, skills, and training. See Ray v. Wilkie, 31 Vet. App. 58 (2019). Consideration should be given to prior education, training, and work experience, but not to age or impairment from nonservice-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Gleicher v. Derwinski, 2 Vet. App. 26 (1991); Pederson v. McDonald, 27 Vet. App. 276 (2015). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the question is whether the Veteran is capable of performing the physical and mental acts required by employment. Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011). In this case, the Veteran has a combined disability rating of 90 percent effective since July 26, 2013, and 100 percent since September 7, 2016. He has multiple service-connected disabilities effective since July 26, 2013, with the right neck scar rated 80 percent disabling. His PTSD with alcohol use disorder is service-connected effective since September 7, 2016, with a 50 percent rating. Therefore, the schedular threshold criteria are met through the appeal period since 2013. In a March 2016 letter, the Veteran stated that he has problems keeping jobs due to his PTSD. He stated that he is never given a reason for why they end because he is always inside the probationary period, but he thinks it is due to his temper, anger, and aggression. As a result, he has had many remedial jobs with minimum wage that only last for a few months. The Veteran stated that the last job he had was more than a year ago and he does not get called in for interviews anymore. The Veteran’s report is generally consistent with the medical evidence. VA treatment records noted that Veteran was unemployed in June 2013 and again in November 2013, and from July 2015 through December 2015. A December 2013 record noted he had unemployment due to an unstable work history with “poor soft skills,” which suggests interpersonal difficulties due to PTSD. A July 2013 VA treatment record stated that the Veteran had been unable to keep his previous jobs working through what appears to be a temporary placement service at a manufacturing company for nearly six months, but he was not picked up as a permanent hire. An August 2013 record noted that he had worked at a landscaping company and a truck stop prior to his second period of active duty. The Veteran started work in July 2013 for a company under VA’s compensated work therapy (CWT) program. An October 2013 treatment record noted that the Veteran had missed one full week of work due to some confusion and loss of phone service, he had some setbacks with employment due to a DUI and drinking, and the Vocational Rehabilitation Services (VRS) employee would follow-up with the employer to hopefully help the Veteran keep his job. Records in November and December 2013 then reflect that the Veteran quit that job due to being moved to part-time and having insufficient funds for gas, and that he was told he was moved to part-time because he “not working out,” although he was unsure why. Therefore, work in the CWT involves some degree of protected work environment. A March 2014 VA treatment record reflects that the Veteran had been working at a bio fuel company for five weeks, which paid $12 an hour, and he had no time lost due to mental health issues. In April 2014, the Veteran reported that he was working at an ethanol plant and enjoyed learning how to weld. A May 2014 record noted that the Veteran was working full-time in competitive employment in the community. A September 2014 record noted that the Veteran had maintained employment at a bio fuel company, but he expressed concerns about the company remaining in business due to rumors of bankruptcy, so he was starting to look for a job. It is unclear when this position ended, but it appears to have been prior to February 2015 as noted below. In March 2016, the Veteran reported that he had moved to another state in part because the ethanol plant had gone out of business. These notations reflect that the Veteran was able to maintain employment during this period of time despite his PTSD and other service-connected disabilities. In a July 2015 VA treatment record, the Veteran reported that he had worked for a fast food restaurant previously and had carpentry experience, he was currently not employed, and generally he would only work for about two months and then would quit or be let go because he “can’t put up with stupid people” and “can’t keep [his] “mouth shut.” In August 2015, he reported that he quit his prior job at a manufacturing company after two weeks in February 2015 because he “couldn’t take the bullsh**.” The provider noted that the Veteran had symptoms consistent with moderate PTSD that limited his ability to maintain employment. In October 2015, the Veteran again reported that he was not working, and even when he does work it doesn’t last for long. He was still unemployed in December 2015. During a September 2016 VA examination for PTSD, the Veteran reported that after active duty, he worked at a parts manufacturer for nine months, at a plastics factory for two months, then at a warehouse, but he lost that job when he got a DUI and missed work. He was unemployed and homeless in 2013. The Veteran stated that he later worked a biofuel plant but was laid off, which is consistent with his reports for VA treatment in 2014. He later worked for three months as electrician apprentice until he was laid off, then at an aerosol plant for two months. The Veteran stated that he did not have a steady job after that time, he “stayed drunk all the time,” and he had worked temporary jobs but was currently unemployed. During a November 2019 VA examination for the knees, the Veteran reported that he had been unemployed for approximately two years, which would be since approximately 2017, and his last employment was as a sawmill worker. As noted below, he described difficulties with work duties due to his knee and back disabilities. However, there are no mental health medical records or lay evidence for this time period. It is unclear how long he maintained this position. Resolving reasonable doubt in the Veteran’s favor, the above evidence establishes that he has been unable to obtain or maintain substantially gainful employment due to his PTSD with alcohol use disorder since 2015. However, this disability is only service-connected effective since September 7, 2016, so TDIU cannot be granted on this basis prior to that date. See 38 C.F.R. § 3.400. The Veteran’s other service-connected disabilities of the back and related radiculopathy of the bilateral lower extremities, right knee, tinnitus, and right neck and facial scar, now with associated limitation of motion of the neck, did not affect his ability to work to an extent to preclude substantially gainful employment. During a March 2014 VA examination for the knees, the Veteran reported that he was currently working at an ethanol plant and could work through his knee pain. During a November 2019 VA examination, he reported problems standing or walking for prolonged periods and that his knees kept from lifting heavy weight. During a November 2019 VA examination for back, the Veteran reported having worse back pain when he started work that required heavy lifting, standing, and walking for long periods of time, he wasn’t able to keep up at the sawmill. Prior to that time, a VA treatment record in July 2015 noted occasional knee and back pain. There is no indication of work effects due to the right neck and facial scarring, as noted above, or from tinnitus. A March 2014 VA audiological examination noted an impact from tinnitus symptoms of constant ringing of difficulty to falling asleep. Accordingly, a TDIU is warranted effective since September 7, 2016, based on PTSD with alcohol use disorder. With this award, the Veteran has a single 100 percent disability of TDIU based on PTSD with alcohol use disorder and separate additional disabilities rated 60 percent or higher for his right neck scar. Therefore, SMC is also warranted on this basis. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). In summary, reasonable doubt has been resolved in the Veteran’s favor to award a TDIU and SMC for a portion of the appeal period. The preponderance of the evidence is otherwise against an earlier award, and the appeal is otherwise denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wheatley 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.