Citation Nr: 21023626 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-60 532 DATE: April 21, 2021 ORDER Entitlement to service connection for a residual scar from a head laceration is denied. An initial 10 percent rating, but no higher, for the service-connected scar of the low central back is granted effective January 12, 2021; a compensable rating is not warranted prior to this date. REMANDED Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b), is remanded. FINDINGS OF FACT 1. The Veteran’s residual scar is not etiologically related to active service. 2. The Veteran has one low central back scar measuring less than 3 square (sq.) centimeters (cm.) in size, which has not been productive of any disabling effects, but was described as painful, but not unstable, in a January 12, 2021, VA examination report. CONCLUSIONS OF LAW 1. The criteria for service connection for a residual scar from head laceration are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for an initial 10 percent disability rating, but not higher, for the service-connected scar of the central lower back are met as of January 12, 2021. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes (DC) 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran completed active duty for training with the Army National Guard from June 1987 to August 1987, and subsequently completed active service with the United States Army, from February 1988 to November 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from July 2016 and July 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in September 2020, at which time the issues currently before the Board were remanded for additional development. The Board additionally disposed of multiple other claims in the September 2020 decision. The case has now been returned to the Board for appellate review. 1. Service Connection — Residual Scar Head Laceration The Veteran asserts that he has a residual scar from a head laceration he experienced in active service. A service treatment record from August 1991 shows that the Veteran slipped on a dry floor and hit his head on a metal object while working in a vehicle. The clinical report states that the Veteran had a laceration on the occipital region which just broke the skin only. The laceration measured 1.5 to 2 inches long. The Veteran did not experience loss of consciousness, but he was dizzy and was assigned to light duty. The diagnosis was laceration of the occipital region, and the laceration was closed with three sutures. At that time, physical examination of the Veteran showed that his eyes, vision, head, face, and scalp were normal. The Veteran’s neurological and psychiatric systems were also normal. At a January 2021 VA examination, the Veteran reported tenderness to the scalp scar, noting that it felt like something is pushing out against the scalp. The examiner opined that it was less likely than not that Veteran's scar was incurred in or caused by the Veteran’s active service. As rationale, the examiner noted that the Veteran’s current area of discomfort was located in a different region of the head than the 1.5 to 2-inch laceration to the occipital region of the head suffered during service, as documented in his service treatment records. The examiner further found that aside from mild scaling/flaking to the scalp in the occipital area, no other abnormality/scarring was noted to the occipital region, which was the area that was affected during service. The Board finds that the January 2021 VA medical opinion is adequate because the examiner thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, there is no medical opinion of record to the contrary. As such, the VA medical opinion constitutes competent and probative evidence. While the Veteran is competent to report observable symptoms, he is not competent to provide an opinion linking his claimed scar to his active service. An opinion of that nature requires medical expertise and is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran, as a lay person, is not competent to provide an etiology opinion in this case. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a residual scar from head laceration is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Increased Rating —Low Central Back Scar The Veteran has asserted that he should have higher ratings for his scar of the low central back as his symptoms are worse than those contemplated by the currently assigned rating. The Veteran’s low back scar was described in a July 2016 VA examination report, dated just prior to the appeal period. The scar was noted to be 3 x .2 cm., and was not painful or unstable. A January 2020 VA examination also described the scar on his lower back, measuring 3 x 0.5 cm, as not painful or unstable, and not resulting in any limitation of function. At a January 2021 VA examination, the Veteran reported having back pain from spine issues and sciatic nerve damage that he believed to be related to his lower back scar. On examination, the Veteran’s lower back scar was noted to be painful. The pain was described as throbbing sensitivity/tenderness. The scar measured 2.5 x 0.5 cm. There was no elevation, depression, adherence to underlying tissue, or missing underlying soft tissue of the scar. The scar was stable, and it was not tender to palpation. The examiner indicated that the scar did not cause any limitation of function. A review of the record shows that the Veteran has received treatment for various disabilities at the VA Medical Center. A review of the treatment notes of record does not show that the Veteran has symptoms of low central back scar that are worse than those noted in the VA examination reports of record. The rating criteria for scars provides that scars that are not of the head, face, or neck, that are unstable or painful are to be assigned a 10 percent rating if there are one or two such scars. 38 C.F.R. § 4.118, DC 7804. If there are three or four such scars, a 20 percent rating is to be assigned. Id. A maximum 30 percent rating is to be assigned if there are five or more unstable or painful scars. Id. Note (2) under Diagnostic Code 7804 provides that for scars that are both unstable and painful, a 10 percent rating is to be added to the evaluation. Note (3) provides that scars evaluated under Diagnostic Code 7805, for scars that additionally result in disabling effects, may also receive a rating under Diagnostic Code 7804. Based on the foregoing, the Board finds that the evidence supports a finding that the Veteran is entitled to a 10 percent disability rating for his service-connected scar of the low central back, as of January 12, 2021, the date of the VA examination where the painful nature of the scar was first described. Prior examination reports specifically note an absence of pain associated with the scar, and there is no other evidence of record documenting pain associated with the scar prior to the January 2021 VA examination report. Further, a higher rating is not warranted as there is not more than one painful scar present, and the scar has not been identified as also unstable. Additionally, the scar was not noted to cover an area of at least 77 square centimeters, such as to warrant any higher rating under any other scar criteria. See 38 C.F.R. § 4.118, DC 7801, 7802. The scar has specifically been noted to not cause any limitation of function of, or have any other disabling effect on, the Veteran’s back, in spite of his reported belief that the scar caused back pain and or sciatic nerve damage. Given all the above, affording the Veteran the benefit of the doubt, the Board finds that a 10 percent rating is warranted for the service-connected scar of the lower central back as of January 12, 2021; however, there is no basis for any further staged rating, or for assignment of any higher rating for the scar. The Board has considered the applicability of the benefit-of-the doubt doctrine, but finds that the preponderance of the evidence is against assignment of any higher rating at any other pertinent point. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-6 (1990). REASONS FOR REMAND Entitlement to a TDIU The Veteran maintains that he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. Initially, the Board observes that the Veteran is service connected for a back disability, posttraumatic stress disorder (PTSD), tinnitus, right ear hearing loss, a right hand disability, a scar of the low central back, and radiculopathy of the lower left extremity.  Notably, he does not meet the schedular criteria for the assignment of a TDIU prior to November 17, 2020, the date service connection was awarded for his back disability, even though the appeal period extends back to April 2016. See 38 C.F.R. § 4.16(a). Nevertheless, it is VA’s established policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, where, as here, the schedular percentage threshold criteria are not met for entitlement to a TDIU for a part of the appeal period, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director of Compensation Service for extraschedular consideration of a TDIU for any part of the appeal period where the schedular criteria are not met. 38 C.F.R. § 4.16(b). Neither a Regional Office nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001).  In this case, pertinent evidence includes the Veteran’s report on the May 2018 TDIU claim that he last worked full time in January 2014 and that his service-connected PTSD and physical disabilities prevented him from securing and following any substantially gainful occupation. Additional evidence includes lay statements from the Veteran, which show that the Veteran lost his job as an insurance adjuster because of his PTSD symptoms. In this case, there is evidence that the Veteran was unable to work due to his service-connected PTSD prior to November 17, 2020. Thus, after considering the record in its entirety, the Board remands this matter for referral to the Director of Compensation Service for consideration of TDIU on an extraschedular basis for the period prior to November 17, 2020. The matters are REMANDED for the following action: 1. Refer the Veteran’s claim to the Director of Compensation and Pension Service, for consideration of an extraschedular TDIU award, for the period prior to November 17, 2020, in accordance with 38 C.F.R. § 4.16(b). The Director should note that an extraschedular evaluation under 38 C.F.R. § 4.16(b) requires a determination that a Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disability(ies).  The Veteran’s employment history, educational and vocational attainment, and all other factors having a bearing on his employability (or lack thereof) should be considered. 2. Then, readjudicate the TDIU claim on appeal. If the full benefit sought on appeal is not awarded, issue a supplemental statement of the case and allow appropriate time for response. Then, return the claim to the Board as appropriate. Michael L. Wilson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Umez-Eronini, 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.