Citation Nr: 21023465 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-02 624 DATE: April 20, 2021 ORDER A rating in excess of 30 percent for a carbuncle removal with residual posterior neck scarring is denied. A compensable rating for boils, carbuncles, furuncles, and cysts with residual scarring is denied. Entitlement to a total disability rating based on individual unemployability prior to January 4, 2018 is granted. Service connection for migraine headaches is granted. FINDINGS OF FACT 1. None of the VA examination reports of record document that the Veteran’s neck scar has had any of the characteristics of disfigurement; or three or four scars that are unstable or painful. 2. The objective medical evidence has never documented any limitation of function attributable to service-connected scarring. 3. The preponderance of the evidence weighs for finding that the Veteran has been unable to secure and follow substantially gainful employment due to his service-connected disabilities prior to January 4, 2018. 4. The evidence is in equipoise as to whether the record shows continuous symptomatology of a migraine headache disability that had its onset during service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for a carbuncle removal with residual posterior neck scarring have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DCs 7800, 7804. 2. The criteria for a compensable rating for boils, carbuncles, furuncles, and cysts with residual scarring have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DC 7805. 3. Prior to January 4, 2018, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.341, 3.400, 4.16. 4. The criteria for service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1968 to May 1972, April 1976 to April 1977, and September 1977 to March 1986. He is a Vietnam Veteran who earned the Combat Infantryman Badge. This matter is before the Board of Veterans Appeals (Board) on appeal from February and March 2015 rating decision. These matters, in addition to a service connection for a skin condition due to exposure to Agent Orange claim, were previously remanded by the Board in a January 2019 Board decision. The Veteran has since been granted service connection for that claim and it is therefore not presently before the Board. The service connection for migraine headaches claim notwithstanding (addressed in the Remand section below), the Board finds that there has been substantial compliance with the January 2019 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). Increased Ratings Disability ratings are determined by applying the criteria set forth in 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 ratings 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. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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, and the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. A rating in excess of 30 percent for a carbuncle removal with residual posterior neck scarring 2. A compensable rating for boils, carbuncles, furuncles, and cysts with residual scarring Legal Criteria Skin conditions are rated pursuant to 38 C.F.R. § 4.118. The Board notes that the applicable rating criteria for skin disorders under 38 C.F.R. § 4.118 were amended most recently in August 2018. However, the 2018 revisions did not substantively change the Diagnostic Codes (DCs) applicable to the Veteran’s scars. Under 38 C.F.R. § 4.118, scars are rated under DC 7800 (scars of the head, face, or neck or other disfigurement of the head, face or neck), 7801 (scars not of the head, face of neck, that are deep and nonlinear), 7802 (scars not of the head, face or neck that are superficial and nonlinear), and 7804 (scars that are unstable or painful). Pursuant to DC 7800, a 10 percent rating is warranted for scars that are located on the head, face, or neck when there is one characteristic of disfigurement. A 30 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, or lips), or; with two or three characteristics of disfigurement. A 50 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement. An 80 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characteristics of disfigurement. Id. For purposes of evaluation of under 38 C.F.R. § 4.118, the eight characteristics of disfigurement are: a scar that is five or more inches, or thirteen centimeters, in length; a scar that is at least one-quarter of an inch, or 0.6 centimeters, wide at the widest part; surface contour of the scar that is elevated or depressed on palpation; a scar that is adherent to underlying tissue; skin that is hypo- or hyper-pigmented in an area exceeding six square inches, or 39 square centimeters; skin texture that is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches, or 39 square centimeters; underlying soft tissue that is missing in an area exceeding six square inches, or 39 square centimeters; and skin that is indurated and inflexible in an area exceeding six square inches, or 39 square centimeters. 38 C.F.R. § 4.118, Diagnostic Code 7800, Note 1. Pursuant to DC 7804, a rating of 10 percent is warranted for one or two scars that are unstable or painful, and a 20 percent evaluation is warranted for three or four scars that are unstable or painful. A 30 percent evaluation is warranted for five or six scars that are unstable or painful. 38 C.F.R. § 4.118. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Note (1). If one or more scars are both unstable and painful, an additional 10 percent is added to the rating that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, DC 7800, Note (2). DC 7805 provides for scars to be rated on limitation of function of the affected part. 38 C.F.R. § 4.118, DC 7805. Factual Background & Analysis The Veteran’s service-connected carbuncle removal with residual posterior neck scarring is assigned an initial 30 percent rating under DC 7800, a 10 percent rating based on a painful scar pursuant to DC 7804, effective May 20, 2019, and an initial noncompensable rating under DC 7805. A December 2016 VA examination report documents four scars on the posterior neck. Measurements of 4.0 x 1.0 c.m., 3.5 x 1.0 c.m., 3.0 x. 0.5 c.m. were provided for three of the scars. No additional characteristics of disfigurement were indicated. On June 2019 VA examination the Veteran was indicated to have one scar on the posterior neck measuring 4.0 x 1.0 c.m. The scar was noted to be painful and tender to palpation. An October 2020 VA examination report documents one scar on the posterior lower neck measure 3.7 x 0.8 c.m. The examiner indicated that this scar, including four others, were painful. In October 2020 the Regional Office (RO) deferred rating this disability because of an inconsistency in the VA examinations of record as to whether the Veteran has one scar on his neck or multiple scars. A November 2020 clarification of the October 2020 VA examination report confirms that the Veteran only has one scar on his neck. After a review of the evidence, the Board finds that a rating in excess of 30 percent for a carbuncle removal with residual posterior neck scarring is not warranted. In this regard, none of the VA examination reports of record document any of the characteristics of disfigurement. Specifically, the examiners have found that the Veteran’s neck scar is not characterized by elevation, depression, adherence to underlying tissue, missing underlying soft tissue, surface contour depressed on palpation, adherent to underlying tissue, missing underlying soft tissue, abnormal pigmentation or texture, or to result in gross distortion or asymmetry of facial features or visible or palpable tissue loss. Regarding a rating in excess of 10 percent for a painful scar under DC 7804, the November 2020 clarification to the October 2020 VA examination report confirms that the Veteran has only one painful scar on his neck and there is no evidence that the scar is also unstable. Therefore, as the Veteran does not have three or four scars that are painful, or a scar that is both painful and unstable, a rating in excess of 10 percent disabling under DC 7804 is not warranted. Finally, the objective medical evidence has never documented any limitation of function attributable to the scarring discussed above. Consequently, a compensable rating is not warranted under DC 7805. Accordingly, the preponderance of the evidence is against these increased rating claims and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 4.3. 3. Entitlement to a TDIU prior to January 4, 2018 (the date from which a 100 percent total disability rating is assigned) Legal Criteria A TDIU may be assigned where the schedular rating is less than 100 percent if it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). The central question is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability,” not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016); Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Factual Background & Analysis Prior to January 4, 2018, and throughout the appeal period for this claim, the Veteran was assigned a combined disability rating of 80 percent with at least one disability (PTSD) assigned a 40 percent disability rating or higher. Accordingly, he meets the minimum regulatory requirements for consideration for a TDIU prior to January 4, 2018. 38 C.F.R. § 4.16 (a). The Veteran’s TDIU application reflects that he last worked in 2009 for a rental care company 30 hours or less a week. A December 2017 statement from the Veteran’s wife communicated that she has been with the veteran since 1972. She stated that she has witnessed the Veteran’s PTSD worsen over the years. The Veteran’s short-term memory is almost gone. He cannot remember what was said five minutes ago and he often repeats himself. She stated the veteran is not motivated to do much of anything and prefers to isolate. He refuses to attend family gatherings because there are too many people. The Veteran does not have any friends and he talks to family only. He does not like to go to events or functions. He will go to Walmart and doctors’ appointments. The Veteran tries to avoid people daily because he does not feel comfortable around others. He becomes very paranoid and will sit by the window, so he can see what is going on around him. She reported the Veteran does not do much around the house. She stated that she cleans and cooks. The Veteran does not have much of an appetite most of the time, so he does not cook. He will go to the store to pick up a few things but otherwise she takes care of the shopping because he does not want to be around people. In January 2018 the Veteran underwent a psychological evaluation by a qualified clinical psychologist. The examiner offered an employability opinion stating that the Veteran cannot sustain the stress from a competitive work environment or be expected to engage or adequately function in gainful work activity due to his service-connected PTSD. The clinician provided a detailed discussion of the Veteran’s psychiatric symptoms and their impact on his ability maintain gainfully substantial employment, including: experiencing recurrent intrusive thoughts (flashbacks), hypervigilance that would interfere with his ability to adequately perform work tasks, continuous depression, anxiety and irritability, chronic sleep impairment, impaired impulse control and unprovoked irritability with violence, the inability to establish and maintain effective social and work relationships and difficulty adapting to stressful work and work-like environments. Ultimately, the clinician concluded that the Veteran’s PTSD continues uninterrupted with increased symptoms and is severe enough to disable and prevent him from sustaining substantially gainful employment since at least the date of his claim, August 4, 2014, through the present time. Based on the foregoing, the Board finds that the preponderance of the evidence weighs for finding that the Veteran is unable to secure and follow substantially gainful employment due to his service-connected disabilities. In resolving all reasonable doubt in the Veteran’s favor, the Board finds that entitlement to a TDIU prior to January 4, 2018 is warranted. 4. Service connection for migraine headaches Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a). Factual Background & Analysis On February 2015 VA examination the Veteran was diagnosed with migraine headaches. STRs reflect that the Veteran was treated for headaches during service in October 1969, at which time he was diagnosed with flying and noise stress-induced headaches. STRs also reveal that the Veteran reported headaches in December 1977, February 1978, September 1978, and June 1980. Consideration is also given to the Veteran’s lay statements that he began experiencing migraine headaches during service in Vietnam that began occurring “very frequently” since his return from Vietnam. Although, he acknowledged during the February 2015 VA examination that they have become less frequent since service and only occur every few months with intensity and frequency decreasing significantly since service. The Board finds the Veteran’s statements regarding the onset of his migraine headaches during service credible and corroborated by documented complaints of headache symptoms in his STRs as mentioned above. The Board also has no reason to doubt the competency or credibility of the Veteran’s contention that he still experiences migraine headaches that have persisted since service. As a layperson, the Veteran is competent to report subjective symptoms of migraine headaches. Further, it is entirely possible that the Veteran has had persistent migraine headaches since service but has declined to seek treatment for them over the years, accounting for gaps in the record which show no documented treatment for migraine headaches. Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a). A headache disability, if due to an organic disease of the nervous system, is a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a result, service connection via the demonstration of continuity of symptomatology is applicable. 38 C.F.R. §§ 3.303 (b), 3.309 (a). Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.