Citation Nr: 21027135 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 18-15 520 DATE: May 4, 2021 ORDER Entitlement to an initial rating of 10 percent, but no higher, for scars of the lower left extremity is granted. REMANDED Entitlement to an initial compensable rating for left leg tibia fracture is remanded. Entitlement to service connection for traumatic brain injury (TBI), to include neurocognitive residuals, is remanded. FINDING OF FACT The Veteran's scars of the left lower extremity have manifested as painful. CONCLUSION OF LAW The criteria for a 10 percent rating, but no higher, for scars of the left lower extremity have been met. 38 U.S.C. § 1155, 5103, 5103A and 5107; 38 C.F.R. §§ 3.159, 4.1, 4.118, Diagnostic Codes 7804-05. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 2006 to December 2015. In January 2020, the Veteran was provided a hearing with the undersigned Veterans Law Judge and a transcript of the proceeding is of record. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an Increased Rating: Left Lower Extremity Scars The Veteran's scars of the left lower extremity are currently rated as non-compensable under Diagnostic Code (DC) 7805 for Scars Other, which provides for any disabling effects to be considered under diagnostic codes 7800-04. Scars other than on the head, face, or neck can be rated under 38 C.F.R. § 4.118, DCs 7801, 7802, 7804, and 7805 based on size, nature, and disabling effects. The regulations pertaining to rating skin disabilities were revised, effective August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. The Board notes that the rating criteria for DC 7805 remained the same. Under DC 7801, prior to the August 2018 amendment, a 10 percent rating is assigned when a scar, not of the head, face, or neck, is deep and nonlinear, and covers an area of at least 6 square inches (39 sq. cm.), but less than 12 square inches (77 sq. cm.). A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801. DC 7801 now provides for scars other than on the head, face, or neck that are associated with underlying soft tissue damage, but the rating criteria remain the same. Under DC 7802, for scars other than on the head, face, or neck that are superficial and nonlinear, a maximum, 10 percent rating is warranted in an area or areas of 144 square inches (929 square centimeters) or greater. Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802 (2018). The amended criteria for DC 7802 now provide for scars other than on the head, face, or neck that are not associated with underlying soft tissue damage, but the rating criteria remain the same. 38 C.F.R. § 4.118, DC 7802 (2019). Under DC 7804, a 10 percent rating is assigned for one or two scars that are unstable or painful. A 20 percent rating is assigned for three or four scars that are unstable of painful. Lastly, A 30 percent rating is assigned for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. The Board notes the rating criteria remained unchanged after the amendment. In September 2015, the Veteran was provided a VA examination. The Veteran reported that his left leg scars were sensitive to touch. The examiner noted the scars were not painful or unstable and were not caused by burns. The Veteran's scars were 1.5 centimeters (cm), 12 cm, 4.5 cm, 1.5 cm, and 2 cm. The scars were noted as not being deep, or non-linear. The Board notes there are no other medical records of record that show treatment for the Veteran's scars. Upon review of the evidence of record, the Board finds that a 10 percent rating for the Veteran's scars of the left lower extremity is warranted. Although the examiner noted the Veteran's scars were not painful, the Veteran reported that they were sensitive to touch. Further, in the Veteran's March 2018 Form 9 and his January 2020 Board hearing, the Veteran reported that his scars were painful specifically at the wound site. Therefore, the Board finds a 10 percent rating for painful scar of the lower extremity is warranted. See 38 C.F.R. § 4.118, DC 7804. However, the Board finds that a rating in excess of 10 percent is not warranted. The evidence of record does not show that the Veteran's scars are non-linear, deep or associated with the underlying soft tissue, or unstable. The Veteran's scars also do not cover an area of 144 square inches or greater, and thus, consideration under Diagnostic Codes 7801 and 7802 are not warranted. See 38 C.F.R. § 4.118, DCs 7801-7802. In light of the foregoing, the Board concludes that an initial 10 percent rating, but no higher, for scars of the left lower extremity is warranted. The benefit of the doubt doctrine has been applied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). REASONS FOR REMAND Although the Board regrets further delay, additional development is required prior to adjudication of the Veteran's remaining claims. 1. Entitlement to an Increased Rating: Left Leg Tibia Fracture The Veteran contends that his left leg tibia disability is more severe than the rating provided. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). The Veteran's left tibia disability is currently rated under Diagnostic Code 5257 for Recurrent Subluxation or Lateral Instability, which prior to February 7, 2021, provided consideration on whether the disability was severe, moderate, or slight. Diagnostic Code 5257 now provides for Recurrent Subluxation or Lateral Instability, as well as Patellar Instability with new descriptive criteria. Because the record does not contain sufficient evidence to rate the Veteran's disability under the new rating criteria, a new examination is warranted. Moreover, during the Veteran's January 2020 Board hearing, the Veteran reported more severe symptoms than shown in his previous examination. The Veteran further reported symptoms that include his knee and ankle, and thus, consideration of whether the Veteran has an associated ankle disability is warranted. Therefore, a remand is required in order to obtain an examination to determine the current severity of the Veteran's disability and to consider the new rating criteria. 2. Entitlement to Service Connection: TBI The Veteran contends that he suffers from a traumatic brain injury, or other neurocognitive issue, that is related to his active duty service. In September 2015, the Veteran was provided a VA examination. The examiner opined that his current mild neurocognitive symptoms were less likely than not caused by or related to his mild TBI, resolved. The examiner rationalized that his reported memory symptoms were noticed six months after the TBI event and there are currently no known delayed symptoms due to mild TBI. The Board finds the September 2015 VA opinion is inadequate to fairly adjudicate the claim. First, the Board notes that the Veteran's memory symptoms occurring six months after his accident would still have been in service, and thus, consideration of whether his current neurological symptoms are related to those complaints is needed. Second, the Veteran was provided a TBI assessment in May 2012 during his active duty service. During this assessment, the Veteran was noted as having a TBI event with current symptoms. The assessment discussed the April 2008 blast/explosion and bullet wound, noting it resulted in the Veteran being dazed, confused, and having concussive symptoms. It further noted that following the incident, the Veteran had balance problems, dizziness, memory, and sleep problems. The Board notes the examiner did not address this assessment. Lastly, during the Veteran's January 2020 Board hearing, the Veteran reported an increase in neurocognitive symptoms and reported the symptoms have occurred since the accident. Therefore, the Board finds that a remand is required in order to obtain a new examination and opinion addressing the above. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran's electronic claims file any outstanding VA treatment records and private medical records relevant to the Veteran's claims. 2. Then, schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity of his left leg tibia disability. The record and a copy of this Remand must be made available to the examiner. Following a review of the entire record, to include the Veteran's lay statements regarding his current symptoms, the examiner should identify any findings related to the Veteran's left tibia conditions and fully describe the current extent and severity of those symptoms, to include addressing any associated symptoms of the ankle. The examiner should discuss all findings in terms of the Schedule of Ratings for the Knee and Leg, specifically Diagnostic Codes 5257-5261, to include the new amended rating criteria for Diagnostic Code 5257. The pertinent rating criteria must be provided to the examiner, and the findings reported must be sufficiently complete to allow for a rating under all alternate criteria. The examiner should further determine whether any left knee disability is manifested by weakened movement, excess fatigability, incoordination, flare-ups, or pain. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran for each disability. The examiner should also determine whether the Veteran's additional impairment on flare-ups or repetitive use is the functional equivalent of ankylosis of left knee. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding symptoms and the opinion should note that consideration. A clearly stated rationale must be provided for any opinion offered. 3. Schedule the Veteran for an examination with an appropriate examiner to determine the etiology of the TBI and neurocognitive symptoms. Such examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. A copy of this remand should be made available to the examiner. Following a review of the entire record, to include the Veteran's lay statements, as well as the Veteran's report regarding the onset and progression of symptomatology, examiner should opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's TBI residuals had their onset during, or are otherwise related to, his active duty service, to include his April 2008 injury to his head and the May 2012 TBI assessment that noted he suffered neurocognitive symptoms following the incident. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Negron, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. § 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. § 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. § 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. § 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. § 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. § 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. § 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED