Citation Nr: 21024320 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 14-32 008 DATE: April 22, 2021 ORDER Entitlement to an initial rating greater than 10 percent for painful scars, status post right orchiectomy is denied. Entitlement to an initial compensable rating for residual scars, status post right orchiectomy is denied. A total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is granted from September 25, 2019. REMANDED Entitlement to a TDIU before September 25, 2019, a TDIU is remanded. FINDINGS OF FACT 1. The preponderance of the evidence reflects that the Veteran does not have three to four painful scars, status post right orchiectomy. 2. The preponderance of the evidence reflects that the Veteran’s residual scars, status post right orchiectomy have no other disabling effects. 3. Beginning September 25, 2019, the Veteran’s service-connected disabilities preclude him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than 10 percent for painful scars, status post right orchiectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.118, Diagnostic Code 7804. 2. The criteria for an initial compensable disability rating for residual scars, status post right orchiectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.31, 4.118, Diagnostic Code 7805. 3. Beginning September 25, 2019, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 3.340, 3.341(a), 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1980 to October 1983. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The November 2013 rating decision granted service connection for painful scar, status post right orchiectomy, with an evaluation of 10 percent, effective August 20, 2013, and 10 percent, for one painful scar of the anterior trunk. The issues were previously before the Board in July 2018 and August 2019. The most recent remand of August 2019 mandated that the RO update the Veteran’s treatment records, provide him with VA Form 8940, and schedule him for examinations to determine the current nature and severity of his scars and any neurological manifestations therefrom. The Veteran was afforded urinary tract (including bladder and urethra) conditions (excluding male reproductive system), rectum and anus conditions, and scars/disfigurement disability benefits questionnaires (DBQs) in November 2020. The examinations of August 2020 and November 2020 with opinions are adequate for adjudication purposes because they describe the Veteran’s scars in detail sufficient to allow the Board to make a fully informed determination. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 1. Entitlement to an initial rating greater than 10 percent for painful scars, status post right orchiectomy is denied. 2. Entitlement to a compensable initial rating for residual scars, status post right orchiectomy is denied. Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, 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, 4.20. Where there is a question as to which of two evaluations shall be applied under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303 (2007). Third, the Board must weigh the probative value of the evidence considering the entirety of the record. VA amended the criteria for rating skin disabilities effective from August 13, 2018. 38 Fed. Reg. 32592 (July 13, 2018). These new regulations apply to all applications for VA benefits or pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending before the effective date will be considered under both old and new rating criteria, and whatever criteria are more favorable to the veteran will be applied. The Board may not apply a current regulation before its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. The revisions to Diagnostic Codes 7801, 7802, and 7805, pertaining to scars: (1) replace the deep/nonlinear/superficial terminology in Diagnostic Code 7801, and 7802 with “underlying soft tissue damage;” (2) streamline the body parts/areas into six zones of the body, defined as each extremity, the anterior trunk and the posterior trunk (Note 1 to Diagnostic Codes 7801 and 7802); and (3) indicate how to assign separate evaluations for each affected zone of the body under § 4.25 (Note 2 to Diagnostic Codes 7801 and 7802). Diagnostic Code 7800 governs burn scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. 38 C.F.R. § 4.118. As the Veteran’s scar disability is not of the head, face, or neck, it is not pertinent to this appeal. Prior to August 13, 2018, Diagnostic Code 7801 governed deep and nonlinear scars, not the head, face, or neck. Beginning August 13, 2018, it governs scars not of the head, face, or neck, that are associated with underlying soft tissue damage. The criteria are the same under both sets of regulations. A 10 percent rating is warranted when an area or areas of at least 6 square inches (39 sq. cm.) but less 10 than 12 square inches (77 sq. cm.) are impacted. A 20 percent rating is warranted when an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) is impacted. A 30 percent rating is warranted when an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) is impacted. A 40 percent rating is warranted when an area or areas of 144 square inches (929 sq. cm.) or greater is impacted. 38 C.F.R. § 4.118. Prior to August 13, 2018, Diagnostic Code 7801, Note (1) defines a deep scar as “one associated with underlying soft tissue damage.” 38 C.F.R. § 4.118 (2017). Beginning August 13, 2018, for the purposes of Diagnostic Codes 7801 and 7802, the six zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk form the posterior trunk. 38 C.F.R. § 4.118 at Note (1). A separate evaluation may be assigned for each affected zone of the body under Diagnostic Code 7801 if there are multiple scars, or a single scar, affecting multiple zones of the body. The separate evaluations are to be combined under 38 C.F.R. § 4.25. 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. at Note (2). Prior to August 13, 2018, Diagnostic Code 7802 governed superficial and nonlinear scars that are not of the head, face, or neck. 38 C.F.R. § 4.118 (2017). Beginning August 13, 2018, it governs scars not of the head, face, or neck, that are not associated with underlying soft tissue damage. The criteria did not change. A 10 percent rating is warranted when with an area of 929 square centimeters (144 square inches) or greater is impacted. 38 C.F.R. § 4.118. Prior to August 13, 2018, Diagnostic Code 7802, Note (1) defined a superficial scar as “one not associated with underlying soft tissue damage.” 38 C.F.R. § 4.118 (2017). Beginning August 13, 2018, Notes (1) and (2) became effective, and are identical to Notes (1) and (2) from Diagnostic Code 7801. Diagnostic Code 7804 governs unstable or painful scars and was not impacted by the regulatory change. A 10 percent is warranted for one or two scars that are unstable or painful. A 20 percent is warranted for three or four scars that are unstable or painful. A 30 percent is warranted for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. Diagnostic Code 7804 Note (2) allows for an extra 10 percent rating if one or more of the scars are both unstable and painful. Diagnostic Code 7804, Note (1) defines an unstable scar as “one where, for any reason, there is frequent loss of covering of skin over the scar.” Prior to August 13, 2018, Diagnostic Code 7805 applied to other scars, including linear scars, and “other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804.” 38 C.F.R. § 4.118 (2017). Beginning August 13, 2018, Diagnostic Code 7805 governs other scars and other effects of scars evaluated under Diagnostic Codes 7800-7802 and 7804 and any disabling effects not considered in a rating provided under Diagnostic Codes 7800-7802. The criteria did not change, the rater is to “[e]valuate any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-7804 under an appropriate diagnostic code.” 38 C.F.R. § 4.118. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Veteran contends that he is warranted higher initial ratings for his painful scars and a compensable initial rating for residual scars, status post right orchiectomy. In his November 2013 VA examination, the Veteran reported “spot pain at the site of the scar on [his] scrotum.” The examiner noted that one painful scar of the trunk. The pain was described as a sharp or pinching pain. The scar was not both painful and unstable. The scars are located on the anterior trunk in the superior-lateral right scrotum just at the junction of the scrotum with the trunk and at the inferior pole of the right scrotum, both measuring 2 cm each. The scars were reported to result in limitation of function with the inability to climb ladders and has a recurrent “pinching pain” sensation. The scars also impacted his ability to work since he was a painter. He explained that when he tried to extend his right leg while climbing a ladder, he had scrotal pain so severe that he had to take days off from work. He therefore no longer climbs ladders. He also reported that he formerly worked for a painting company but had to retire about 18 months ago due to the limitations to his working time caused by the scrotal pain. He worked occasionally as a painter but not enough to provide an income for his family. At his April 2019 VA examination, the Veteran reported continued progressive worsening of the right scrotal pain and scars pain with numbness around the scars, especially on doing physical activities like manual labor work as a self-employed painter from 1984 until 2016. Since 2009, he has had severe chronic right scrotal pain and scars pain in sitting, walking, going up and down the ladder, and riding a bicycle. The subjective complaint was pain of the scars of the scrotum and numbness around the scrotal scars on sitting, walking, going up and down the ladder, and riding bicycles. The objective findings were that the scars are superficial, none disregarding. They were tender with functional impairment. The examiner noted two painful scars located: on the superior aspect of the right scrotum, which measures 2.2 cm in length and 0.3 cm in width; and on the inferior aspect of the right scrotum, which measures 3 cm in length and 0.3 cm in width. Neither scar was unstable, with frequent loss of covering of skin over the scar. The examiner noted two scars located on the anterior trunk: Scar #1 was on the superior aspect of the right scrotum and measures 2.2 cm in length and 0.3 cm in width; Scar #2 was located on the inferior aspect of the right scrotum and measured 3 cm in length and 0.3 cm in width. The scars, with and without underlying tissue damage, occupy a total area of approximately 6.16 cm². The scars resulted in limitation of function because they are painful with numbness around them with a limitation of function and interference with the daily life activity. Regarding other pertinent physical findings, complications, conditions, signs, and/or symptoms (such as muscle or nerve damage) associated with the scars, the examiner noted that the Veteran has damage to the superficial nerves status post right orchiectomy with numbness around the scars of the right scrotum. The scars impacted his ability to work. The painful scars of the right scrotum status post right orchiectomy interfered with his daily life activities. The Veteran worked as a self-employed painter until 2016. The painful scars interfered with his work on prolonged standing and going up and down the ladder. He had not worked since 2016. During the August 2020 VA scar examination, the Veteran reported progressive worsening of the right scrotal pain and scars pain with numbness around the scars, especially on doing physical activities. His current symptoms included pain, tenderness, numbness, and tingling to the right scrotal area, extending to the perianal/perineum area. The examiner noted that the Veteran had two painful scars on the trunk. There was pain, tenderness, numbness, and tingling to the right scrotal area, extending to the perianal/perineum area. Anterior trunk right scrotum scars measured 2.2 x 0.3 and 3.0 x 0.3. The scars were tender to palpation. The total area on the anterior trunk 1.56 cm². Regarding the functional impact, the Veteran had difficulties with prolonged sitting, walking, and performing certain manual labor tasks. During a November 2020 VA scars/disfigurement DBQ, the Veteran reported a history of right testicular torsion and subsequent right orchiectomy in 1982 with a painful scar with radiations to the right inguinal area, which has stayed the same. His current symptoms included pain to palpation and with stretching of the scar when clothes come to the proximity of it, especially jeans and undergarments. He takes Motrin to help alleviate the pain. The examiner diagnosed scars of the right testicle status post traumatic orchiectomy of the right testis. The Veteran’s scars are located on the superior lateral right scrotum and the inferolateral right scrotum. The first scar measured 2.2 x 0.3 cm and the second scar was 2 x 0.2 cm. The scars were tender to palpation. The total area on the anterior trunk affected measures 1.26 cm². The Veteran’s scar(s) impacted his ability to work with occupational tasks, which cause stretching, pulling, or direct contact with clothes must be avoided to prevent flare-ups. Based on the evidence of record, the Board finds that the Veteran’s two scars, status post right orchiectomy, are painful and do not warrant an initial disability rating greater than 10 percent under Diagnostic Code 7804. The most probative evidence of record shows that the Veteran has two painful scars associated with his right orchiectomy. An extra 10 percent rating under Diagnostic Code 7804 is not warranted since the Veteran’s two painful scars are not determined to be both unstable and painful. Similarly, a higher and/or separate rating is not warranted under Diagnostic Code 7801 because the scars associated with his right orchiectomy do not cover at least 77 to 465 square centimeters. Also, the preponderance of the evidence does not show that the Veteran’s residual scars, status post right orchiectomy warrant a compensable rating under Diagnostic Code 7805. There is nothing in the record to indicate that the Veteran’s two scars are deep and superficial to warrant a compensable rating. The Board notes an August 2013 VA treatment note indicating that the Veteran’s pain is of neuropathic origin. During an April 2019 VA examination, it was noted that the Veteran had damage to the superficial nerve status post right orchiectomy with numbness around the scars of the right scrotum. To determine whether there were any neurological complications from his scars, status post right orchiectomy, the Veteran was afforded in November VA 2020 urinary tract conditions and rectum and anus conditions DBQs. The examiner found no current condition of neuropathic scrotal with bladder/bowel incontinence and explained that his symptoms were at least as likely as not age-related and less likely than not due to his scars. The examiner also explained that the impairment of sphincter control may be due to an intestinal condition rather than a sphincter condition, as the most common cause of subjective sphincter control complaints is irritable bowel syndrome. The examiner explained that the Veteran’s diagnosed voiding dysfunction was less likely than not aggravated by his residual scar status post right orchiectomy, but was rather, due to his age. The examiner stated that the “[V]eteran denied symptoms of urethral involvement which could implicate the pudendal nerve as the cause of [his] voiding dysfunction.” The examiner explained that it was not at least as likely as not that his sphincter control problems were aggravated service-connected residuals scars status post right orchiectomy. The examiner stated that it is unclear if this is due to an intestinal condition rather than a sphincter condition, as the most common cause of subjective sphincter control complaints is due to irritable bowel syndrome. He explained that there were no objective clinical findings on examination that would link the Veteran’s subjective complaints of impairment of rectal sphincter control to his prior orchiectomy as the pudendal nerve does not innervate the sphincter. The Veteran’s primary complaint is painful scars, for which he had been compensated. The Board has considered the Veteran’s statements. The Veteran is competent to report his observations with regard to the symptoms of his scars. Jandreau v. Nicholson, 492 F.3d 1372. However, based on the lay statements and the November VA 2020 urinary tract conditions and rectum and anus conditions DBQs, the scars have not caused or aggravated neurological function of the affected scar area, nor do the scars impede the functionality of the affected scar area. The Board considered the applicable ratings for “other effects of scars” under every diagnostic code pertaining to scars, per Diagnostic Code 7805. There is nothing in the record to indicate that there are any additional disabling effects from his two residual scars, status post right orchiectomy. Thus, the Board finds that there are no other potentially applicable diagnostic codes by which a higher and/or separate rating can be assigned. Accordingly, the Board finds that the preponderance of the evidence is against the claims for an initial rating greater than 10 percent for painful scars and a compensable rating for residual scars, status post right orchiectomy. 38 C.F.R. § 4.118, Diagnostic Code 7804 and 7805; 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 3. A TDIU is warranted beginning September 25, 2019 Total disability exists when there is any impairment, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned based on individual unemployability: that is when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one service-connected disability, it must be rated 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341 (a), 4.19 (2018); Van Hoose v. Brown, 4 Vet. App. 361 (1993). When the Board conducts a TDIU analysis, it must consider the Veteran’s education, training, and work history. Pederson v. McDonald, 27 Vet. App. 276 (2015). The evidence of record shows that the Veteran complained that the painful scars interfered with his work because of prolonged standing and going up and down the ladder. He is forced to take Hydrocodone for the pain so as to not miss too many days of work. Further, the evidence indicates that during the appeal period, the Veteran has become unemployed. During the April 2019 VA scar examination, it was reported that the Veteran worked as a painter with a company since 1982 and as a self-employed painter, until 2016. For purposes of a TDIU, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016); Faust v. West, 13 Vet. App. 342, 355-56 (2000) (“substantially gainful employment” for TDIU purposes is met where the annual earned income exceeds the poverty threshold for “one person,” irrespective of the number of hours or days actually worked and without regard to any prior income history). Marginal employment may also be held to exist on a facts-found basis, including when self-employment results in earned annual income exceeding the poverty threshold for one person were performed in a “protected environment such as a family business or sheltered workshop.” 38 C.F.R. § 4.16 (a). Here, the Veteran is service-connected for limitation of flexion of the bilateral hip, each at 40 percent disabling, effective September 25, 2019; trochanteric pain syndrome of the bilateral hip, each at 10 percent disabling, effective February 19, 2019, and 20 percent from September 25, 2019; absence acquired, right testicle at 10 percent, effective October 15, 1983; painful scar, status post right orchiectomy; tinnitus, at 10 percent disabling, effective February 19, 2019; thigh, limitation of extension, bilateral hip, each noncompensable from February 19, 2019, and 10 percent from September 25, 2019; and residual scar status post orchiectomy, at a noncompensable rating, effective August 20, 2013. Beginning September 25, 2019, the criteria for consideration of a schedular TDIU are met. During a March 2019 tinnitus examination, the examiner noted that the Veteran identified as homeless or was in imminent danger of homelessness. Further, he noted that the Veteran’s tinnitus impacted ordinary conditions of daily life because it “affect[ed the Veteran’s] attention and alertness [an] interrupted [his] my concentration and sometimes causes confusion.” In an April 2019 VA examination, the examiner noted that the Veteran’s hip and thigh conditions would impact his work because he had difficulty with activities that trigger or worsen symptoms, such as sitting for more than 30 minutes. Similarly, during the scars examination of August 2020, the examiner found that the Veteran’s scar(s) impacted his ability to work with occupational tasks, which caused stretching, pulling, or direct contact with clothes must be avoided to prevent flare-ups. Based on the competent evidence above, the Board finds that the Veteran’s service-connected disabilities in the aggregate preclude him from securing or following any substantially gainful employment, physical or otherwise, beginning September 25, 2019. The ultimate responsibility for a TDIU determination is a factual rather than a medical question and is an adjudicative determination made by the Board or the AOJ. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Reviewing the totality of the evidence, however, including the Veteran's current medical findings detailing the severity of his service-connected disabilities, the competent and credible lay assertions of unemployability due to limitations caused by the service-connected disabilities, and the cumulative objective evidence of record, the Board finds that collectively, the Veteran’s service-connected disabilities, coupled with his educational/training background and employment history, likely precludes him from securing and following any substantially gainful employment. Accordingly, resolving all doubt in the Veteran’s favor, the Board finds that entitlement to TDIU is warranted beginning September 25, 2019. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to a TDIU before September 25, 2019, is remanded. When the threshold criteria for consideration of a schedular TDIU are not met, the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation because of service-connected disabilities. 38 C.F.R. § 4.16 (b); Fanning v. Brown, 4 Vet. App. 22 (1993). The Board cannot assign an extraschedular rating in the first instance. Bagwell v. Brown, 9 Vet. App. 337 (1996). Before September 25, 2019, the record reflects that the Veteran reported that since his testicle removal in service, he had chronic heaviness and pain caused by excessive scarring in the area, all day while working as a painter. He worked as a painter and was on his feet, standing, all day. Also, he reported right inner thigh pressure and pain, which affected his driving. The record also reflects that the Veteran became unemployed during the appeal period. During a November 2013 VA male reproductive systems examination, it was noted that the Veteran stopped working due to scrotal pain and had retired from regular employment. Treatment records dated in September 2016 confirmed that he was unemployed. Records dated in October 2016 indicate that he was “marginally employed and has very low income.” Treatment records dated in January 2017 note that he was homeless and unemployed. The Board cannot determine whether the Veteran’s claim warrants submission to the Director of the Compensation Service for extraschedular consideration because the claims file lacks sufficient information regarding his annual income during the appeal period, and the exact date when he became self-employed and unemployed. As there is no VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) and other information regarding the Veteran’s annual income, the claim for a TDIU must be remanded for further development. Accordingly, the issue is REMANDED for the following action: 1. Request that the Veteran provide a completed VA Form 21-8940 so that he may provide his occupational history and information about his earnings prior to September 25, 2019. 2. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case, and allow the appropriate time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Stevens, 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.