Citation Nr: 21020897 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-12 493A DATE: April 8, 2021 ORDER Entitlement to evaluation of 20 percent, but no higher, for service-connected residual burns right anterior trunk is granted throughout the entire appeal period. Throughout the appeal period, a separate 20 percent evaluation, but no higher is granted for residuals of scarring on the right upper extremity. REMANDED Entitlement to service connection for a neck disability, to include degenerative arthritis of the cervical spine is remanded. Entitlement to service connection for a bilateral foot disability, to include plantar fascitis is remanded. FINDING OF FACT Throughout the entire period on appeal, the Veteran's service-connected residual burn with scarring have been found to be a deep, non-linear scars, that affect two zones of the body, i.e. the right upper extremity and anterior trunk affected. CONCLUSION OF LAW Throughout the appeal period, the criteria for an evaluation of 20 percent, but no higher, for the service-connected residuals burns right anterior trunk have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7801. Throughout the appeal period, the criteria for an evaluation of 20 percent, but no higher, for the service-connected residuals burns right upper extremity have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7801. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Marine Corps from August 1982 to June 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in Louisville, Kentucky. In February 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the electronic claims file. The appeal originally contained claims for entitlement to service connection for bilateral ankle disabilities. On remand, service connection was granted for a bilateral ankle disabilities in a October 2020 rating decision. Because that decision represents a full grant of the benefit sought, the issues are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In July 2020, the Board remanded the claims for additional development. After a review of actions completed on remand, the Board is satisfied that there has been substantial compliance with its requested actions and no further action is necessary to comply with the remand’s directives regarding the increased evaluation for the service-connected scarring. Stegall v. West, 11 Vet. App. 268 (1998). The claims for service connection for a neck disability and bilateral foot disability are discussed in the REMAND section. 1. Increased Evaluation Scars. The Veteran's service-connected residuals burns right upper chest, right axilla, and medial surface right upper arm has been found to be a deep, non-linear scar (service-connected scarring) is rated under Diagnostic Code 7801. As an initial matter, the Board notes that some of the rating criteria for evaluating certain types of scars and skin disabilities were amended effective August 13, 2018. 83 Fed. Reg. 32,592 (July 13, 2018) (eff. Aug. 13, 2018). However, the alterations made to Diagnostic Code 7801 did not affect the rating criteria nor did it affect how the rating criteria are applied. Compare 38 C.F.R. § 4.118, Diagnostic Code 7801 (2017) with 38 C.F.R. § 4.118, Diagnostic Code 7801 (2019). Instead, the amendment altered the wording of the explanatory notes accompanying Diagnostic Code 7801 in order to enhance their clarity without altering their directives on how to properly apply Diagnostic Code 7801. As the amendment resulted in only cosmetic, as opposed to functional, alterations to Diagnostic Code 7801, the Board will not discuss the amendment further. As the post-amendment language contained in the notes accompanying Diagnostic Code 7801 is clearer, and as there is no difference in the practical application of the pre-amendment and post-amendment wording, the Board will utilize the post-amendment language herein. Under Diagnostic Code 7801, a 20 percent rating is warranted for scars not of the head, face or neck, that are deep and non-linear which affect an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.). 38 C.F.R. § 4.118, Diagnostic Code 7801. A 30 percent rating is warranted for such scars affecting an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.). Id. Finally, a 40 percent rating is warranted for such scars affecting an area or areas of 144 square inches (929 sq. cm.) or greater. Id. The six zones of the body are defined as each extremity, anterior trunk and posterior trunk. Id., Note 1. The midaxillary line divides the anterior trunk from the posterior trunk. Id. 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, which are to be combined. Id., Note 2. 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 Diagnostic Code 7801. Id. In October 2010, the Veteran filed for an increased evaluation for the service-connected scars. In January 2016, the Veteran underwent a VA examination to determine the severity of the service-connected scarring. He reported intermittent pain with the scars that caused difficulty sleeping and that he took oxycodone for partial relief and avoided doing repetitive movements with his right arm because it caused discomfort. On examination, the VA examiner found a flat irregular hypopigmented area extending continuously from the right proximal arm right, right upper shoulder, and right upper chest. The VA examiner indicated the scarring was superficial, non-linear, and measured at 25cm x 16 cm, approximately 400 cm squared. In July 2018, the Veteran underwent an additional VA examination to determine the severity of the service connected scars. On examination, the VA examiner indicated scarring on the right upper chest, right bicep, right shoulder scapula superior, and right inferior scapula that were painful, deep, nonlinear, stable, and healed. The VA examiner indicated the scar were 5 cm squared and 6 cm squared, respectively. In October 2019, the Veteran underwent an additional VA examination to determine the severity of the service-connected scarring. The Veteran reported pain and tenderness. On examination, the VA examiner indicated deep, partial thickness scarring on the right upper chest, right axilla, and right upper arm. The VA examiner measured the right upper extremity scar as 11 cm x 10 cm and a scar on the anterior trunk measured at 27.5 x 15 cm. The VA examiner indicated the combined total area of the right upper extremity scar was 110 cm and the anterior trunk was 412.5. In October 2020, the Veteran underwent an additional VA examination to determine the severity of the service-connected scarring. On examination, the VA examiner indicated deep, partial thickness scarring on the right upper chest, right axilla and medial surface right upper arm. The VA examiner measured the scarring as 21 cm x 20 cm with a total area of 420 cm squared. As an initial matter, the Board finds the July 2018 less probative because measurements provided for the service-connected scarring is less probative because the measurements provided are outliers compared to the other three examinations. The Board finds that the January 2016, October 2019, and October 2020 examination reports are entitled to significant probative weight as to the severity of the Veteran's disability during the period on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The assessments made during the examinations were based on both the Veteran's description of the disability as well as each examiner's own objective assessment of the severity of the scar, including measurements. As such, the Board finds the examinations adequate for rating purposes. Based on the above, and resolving all doubt in the Veteran’s favor, separate 20 percent evaluations, but no higher, for the Veteran's service-connected scarring are warranted for scarring on the right anterior trunk nad right upper extremity. The scarring has been noted to be deep, non-linear, and it crosses the right upper extremity and right anterior trunk. The largest measured value for the anterior trunk scar was 412.5 cm squared. The largest measured value for the right upper extremity scar was 110 cm squared. While the Board notes the varying measurements, the record indicates that the scarring has been unchanged throughout the appeal period and has therefore chosen the values most beneficial to the Veteran. As previously mentioned, under Diagnostic Code 7801, a 20 percent rating is warranted for scars not of the head, face or neck, that are deep and non-linear which affect 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 such scars affecting an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.). 38 C.F.R. § 4.118, Diagnostic Code 7801. No additional higher or alternative ratings under different Diagnostic Codes can be applied in this case. There is no evidence that the service-connected scarring is unstable and while the Veteran has indicted the scarring is painful, no rating is excess of the two separate 20 percent evaluations is available based solely on the consideration of pain. 38 C.F.R. § 4.118b. Likewise, there is no evidence that the Veteran has any other disabling effects associated with the service-connected scarring, with all of the VA examiners noting no further manifestations or interference with any joints. Therefore, additional or higher ratings are not possible based on other disabling effects. 38 C.F.R. § 4.118, Diagnostic Code 7805. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Based on the evidence, separate 20 percent evaluations are granted throughout the appeal period for service-connected scarring of the right anterior trunk and right upper extremity. REASONS FOR REMAND 1. The Remaining Claims on Appeal are Remanded. In July 2020, the Board remanded the claims for service connection for a neck disability and a bilateral foot disability for medical opinions on the etiology of the claimed conditions. After review of the opinions provided on remand, the Board finds an additional remand is necessary to allow for a fully informed opinion. In October 2020, VA opinions on the etiology of the Veteran’s neck disability and a bilateral foot disability were obtained. The VA examiner opined that the Veteran’s neck and a plantar fasciitis disability were less likely than not due to the Veteran’s military service. The sole rationale provided for both disabilities was a lack of treatment during service. Further, on remand, the Veteran was awarded service connection for a bilateral ankle condition and also awarded service connection for the plantar callouses which he has indicated caused a bilateral plantar fasciitis disability. When VA undertakes to provide a medical examination, it must ensure that the examination and opinions therein are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, because the rationale provided for the opinions is inadequate, new opinions are necessary. The matters are REMANDED for the following action: 1. Associate any outstanding VA treatment records with the electronic claims file. 2. After completion of the above-specified development. Schedule the Veteran for a VA examination to determine the etiology of any cervical spine disability. The examiner must indicate review of the claims file in the examination report. The examiner is asked to provide the following opinions: a) Is it at least as likely as not (a 50 percent probability or greater) that any current cervical spine disabilities originated during the Veteran's active period of service or, is otherwise etiologically related to his active service, or in the case of degenerative arthritis, had its onset within one year of separations from service? b) Is it at least as likely as not (50 percent probability or greater) that any current cervical spine disability is caused by the Veteran's service-connected disabilities, to include his right shoulder disability? c) If not caused by the service-connected disabilities, is it at least as likely as not (50 percent probability or greater) that any current cervical spine disability is aggravated (worsened in severity beyond the natural progression of the disease) by the Veteran's service-connected disabilities, to include a right shoulder disability? If the VA examiner opines that any cervical spine disability is aggravated by the service-connected disabilities, he/she should indicate the degree of disability before aggravation and the current degree of disability. The examiner should specifically comment on the Veteran's reports of falling from a 12-foot ladder during service and lay reports of in-service neck pain. A rationale should be given for all opinions and conclusions rendered. 3. Schedule the Veteran for a VA examination to determine the etiology of any bilateral foot disabilities, to include the plantar fasciitis. The examiner must indicate review of the claims file in the examination report. The examiner is asked to provide the following opinions: a) Is at least as likely as not (a 50 percent probability or greater) that any current bilateral foot disabilities, to include plantar fasciitis, originated during the Veteran's active period of service or, are otherwise etiologically related to his active service, or in the case of degenerative arthritis, had its onset within one year of separations from service? b) Is it at least as likely as not (50 percent probability or greater) that any current bilateral foot disabilities, to include plantar fasciitis, are caused by the Veteran's service-connected disabilities, to include the service-connected ankle and/or plantar callous disabilities? c) If not caused by the service-connected disabilities, is it at least as likely as not (50 percent probability or greater) that any current bilateral foot disabilities, to include plantar fasciitis, are aggravated (worsened in severity beyond the natural progression of the disease) by the Veteran's service-connected disabilities, to include the service-connected ankle and/or plantar callous disabilities? If the VA examiner opines that any current bilateral foot disabilities are aggravated by the service-connected disabilities, he/she should indicate the degree of disability before aggravation and the current degree of disability. The examiner must specifically comment on the Veteran's in-service foot treatment, lay reports of in-service foot pain, and the September 2016 medical examination regarding the feet. A rationale should be given for all opinions and conclusions rendered. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Teague, 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.