Citation Nr: 21029880 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 19-34 699 DATE: May 17, 2021 ORDER Entitlement to an initial 10 percent rating, but no higher, for a scar, residual of traumatic brain injury (TBI) is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for TBI is remanded. Entitlement to special monthly compensation based on housebound status or the need of regular aid and attendance is remanded. FINDING OF FACT The Veteran's scar, residual of TBI, is at least as likely as not painful during flare-ups, but the preponderance of evidence is against a finding that the scar is unstable or results in any characteristics of disfigurement, visible or palpable tissue loss, or any other functional impairment of earning capacity at any point in the appeal period. CONCLUSION OF LAW The criteria for an initial 10 percent rating, but no higher, for a scar, residual of TBI, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.118, Diagnostic Codes 7800-05. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran's appeal of the initial rating assigned for his service-connected scar, residual of TBI, comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran appeared at a hearing before the undersigned in November 2020. A transcript of the hearing is of record. In January 2021, the Board remanded the Veteran's appeal of the initial rating assigned for his service-connected scar, so the Agency of Original Jurisdiction (AOJ) could schedule him for an initial scar examination to ensure the decision on his appeal is fully informed. The AOJ scheduled the Veteran for an examination in March 2021. There is no indication the March 2021 scar examination report is inadequate for rating purposes, as the examiner provided findings consistent with the applicable rating criteria after reviewing the claims file and completing an in-person examination of the Veteran. As a result, the Board finds there has been substantial compliance with its remand directives regarding the Veteran's appeal of the initial rating assigned for his service-connected scar. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board acknowledges it is remanding the initial rating assigned for TBI and the issue of entitlement special monthly compensation based on housebound status or the need of regular aid and attendance for further development, to include assistance with obtaining potentially outstanding treatment records related to an apparent stroke in November 2013. The Board finds, however, this evidence is not relevant to the functional impairment resulting from the Veteran's service-connected scar during the appeal period, which commenced with the submission of his April 2017 claim, since the record otherwise establishes the Veteran has received all his care through the Veterans Health Administration since approximately 2014 with prior treatment records related to a stroke having no bearing on the current physical characteristics and functional impairment of a scar. Therefore, the Board will proceed with appellate consideration of the initial rating assigned for the Veteran's service-connected scar. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA shall give the benefit of the doubt to the claimant when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The rating criteria for scars are outlined in Diagnostic Codes 7800 through 7805 in the VA Rating Schedule. 38 C.F.R. § 4.118. The Veteran's service-connected scar, which is located behind his right ear, falls within the category of scars or other disfigurement of the head, face, or neck. Such scars are evaluated under Diagnostic Code 7800. Diagnostic Codes 7801 and 7802 are for rating scars not of the head, face, or neck and are therefore not applicable in the Veteran's case. Diagnostic Code 7803 was eliminated from the VA Rating Schedule prior to the effective date of service connection for the Veteran's scar with some of its provisions being subsumed into Diagnostic Code 7804. See 73 Fed. Reg. 54710 (Oct. 23, 2008). Diagnostic Code 7805 indicates any disabling effects not considered under Diagnostic Codes 7800 through 7804 must be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118. Under Diagnostic Code 7800, a 10 percent rating is warranted when one characteristic of disfigurement is present. A 30 percent rating is warranted for 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, lips), or; with two or three characteristics of disfigurement present. A 50 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement present. An 80 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement present. 38 C.F.R. § 4.118, Diagnostic Code 7800. The eight characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118, are (1) length of scar is 5 or more inches (13 or more cm.); (2) width of scar is at least one-quarter inch (0.6 cm.) wide at the widest part; (3) elevated or depressed surface contour on palpation; (4) adherence to underlying tissue; (5) hypo-or hyper-pigmentation of the scar in an area exceeding six square inches (39 sq. cm.); (6) abnormal (irregular, atrophic, shiny, scaly, etc.) skin texture in an area exceeding six square inches (39 sq. cm.); (7) missing underlying soft tissue in an area exceeding six square inches (39 sq. cm.); (8) indurated and inflexible skin in an area exceeding six square inches (39 sq. cm.). 38 C.F.R. § 4.118, Diagnostic Code 7800, Note (1). Diagnostic Code 7804 provides for a 10 percent rating when a scar is found to be either painful or unstable, to include scars rated under Diagnostic Code 7800. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 indicates an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. Note 2 to Diagnostic Code 7804 indicate that, if one or more scars are both unstable and painful, a 10 percent rating must be added to the evaluation that is based on the total number of unstable or painful scars. Id. As previously noted, the Veteran was scheduled for a scar examination in March 2021. The March 2021 examiner reported the Veteran's service-connected scar is 1.2 centimeters long by 0.2 centimeters wide or an area of 0.24 square centimeters. The March 2021 examiner's report is similar to the estimate of the neurologist who completed the Veteran's July 2017 TBI examination and estimated the Veteran's scar was 3.0 centimeters long and 0.1 centimeters wide or an area of 0.3 square centimeters. The March 2021 examiner indicated the scar is neither painful nor unstable. The March 2021 VA examiner noted there is no visible or palpable tissue loss associated with the scar, as well as no elevation, depression, or adherence to underlying tissue. The March 2021 examiner concluded the scar does not result in any functional impairment in earning capacity. The Board finds an initial 10 percent rating, but no higher, is warranted for the Veteran's service-connected scar. Although the March 2021 examiner reported the scar is not painful, the Veteran testified during the November 2020 hearing before the undersigned that the scar is painful from "time to time." Thus, the Board finds it is at least as likely as not that the scar is painful during flare-ups, warranting a 10 percent rating under Diagnostic Code 7804 when reasonable doubt is resolved in the Veteran's favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. However, a rating in excess of 10 percent is not warranted at any point in the appeal period because the preponderance of evidence is against a finding that the scar is unstable or results in any characteristics of disfigurement, visible or palpable tissue loss, or any other functional impairment of earning capacity. The March 2021 examination report clearly indicates the Veteran's scar is not unstable, and the record does not include any lay statements from the Veteran or other evidence that conflicts with the March 2021 examiner's findings in this regard. Objective examination results reveal the scar is far less than 13 centimeters in length and 0.6 centimeters in width; therefore, it is also far less than 39 square centimeters. There is no evidence of elevation, depression, adherence to underlying tissue, visible or palpable tissue loss, or any other functional impairment of earning capacity. As a result, the benefit-of-the-doubt doctrine does not apply in the context of assessing the scar under Diagnostic Code 7800 or when determining whether an additional 10 percent rating in warranted in accordance with Diagnostic Code 7804, Note 2, and there is no indication the Veteran has any additional functional impairment that warrants consideration under Diagnostic Code 7805. Accordingly, an initial 10 percent rating, but no higher, for the Veteran's service-connected scar is granted. REASONS FOR REMAND In January 2021, the Board remanded the Veteran's appeal of the initial rating assigned for his service-connected TBI for a new examination due to his reports of increased functional impairment since his most recent examination in July 2017, as well as inconsistencies in the July 2017 examination report with regard to the material issue of whether the Veteran has memory loss as a result of his service-connected TBI. The AOJ scheduled the Veteran for a new examination in February 2021. The February 2021 examiner ultimately concluded the Veteran's memory loss is the result of stroke rather than TBI, an issue that was not addressed in the previously obtained July 2017 examination report. In April 2021, the Veteran's representative submitted written argument asserting the February 2021 examiner failed to provide an adequate rationale to support his conclusion that the Veteran's memory loss is the result of a stroke rather than TBI. The Board agrees the February 2021 examination report is inadequate to make an informed decision on the Veteran's appeal. Initially, the Board notes there are no treatment records associated with the claims file documenting the Veteran's stroke with the only evidence in this regard being the Veteran's lay reports of his medical history. While the February 2021 examiner readily accepted the Veteran's reports of a prior stroke, he did not discuss or even acknowledge the Veteran's lay reports of memory loss since his in-service concussion. Further, the February 2021 examiner apparently consulted with an unnamed "VA TBI appointed expert" who determined the Veteran had a "mild" TBI, but there is no indication whether this expert reviewed the claims file or based his or her opinion on the abbreviated history of the in-service treatment noted in the February 2021 examiner's report. The Board acknowledges the February 2021 examiner concluded the Veteran's "narrative" of the in-service injury is inconsistent with documented medical records, but there are several documented symptoms noted in service treatment records that are not included in the February 2021 examiner's report. The Board concedes service treatment records appear not to support the Veteran's report that he was "unconscious for eight days" following the in-service concussion, as noted by the February 2021 examiner, but the February 2021 examiner's report fails to discuss the fact that service treatment records explicitly note the Veteran had a "fluctuating level of consciousness . . . . and was in a very confused mental state for a period of [three to four] days and was disoriented" and then experienced left-side weakness in his body six days after his concussion "at a time when he was regaining his consciousness" while still not being able to concentrate and having "poor judgment" during hospitalization more than a month after his concussion. In sum, the Board is simply unable to determine whether the account provided to the "VA TBI appointed expert" was the abbreviated version included in the February 2021 examiner's report, which appears intended to erode the Veteran's credibility, or full account of the facts and circumstances as presented by the evidence in the Veteran's claims file, and there is no other accounting for the Glasgow score referenced in the February 2021 examination report. Additionally, the February 2021 examiner also highlighted the fact that the neurologist who conducted the Veteran's initial July 2017 examination failed to acknowledge or consider the Veteran's history of stroke in explaining why the Veteran's memory loss should not be considered a result of TBI but rather stroke; however, the record also includes a November 2018 disability benefits questionnaire (DBQ) prepared by L.M., M.D., which attributes the Veteran's memory loss to TBI rather than stroke while explicitly noting the Veteran's history of prior stroke. The February 2021 examiner did not acknowledge or otherwise discuss the validity of the November 2018 opinion provided by L.M., M.D., rather relying solely on the omission of a history of stroke in the July 2017 examiner's report to support his conclusion that the Veteran's memory loss is the result of stroke rather than TBI, making further development necessary in this regard. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The matters are REMANDED for the following action: 1. Ask the Veteran to identify the source of any outstanding treatment records related to his apparent treatment for a stroke in approximately November 2013 and make reasonable efforts to assist the Veteran in obtaining any such records identified. 2. Schedule the Veteran for a new examination to assess the severity of the functional impairment resulting from his service-connected TBI, preferably with an examiner who has not previously examined him. If the selected examiner determines the Veteran has no complaints of impairment of memory, attention, concentration, or executive function, the examiner must reconcile this finding with the Veteran's lay statements regarding memory problems, as well as the issues with short-term memory and other cognitive impairment shown on testing conducted in conjunction with his July 2017 TBI examination and noted in the November 2018 DBQ prepared by L.M., M.D. If the examiner determines any impairment of memory, attention, concentration, or executive function is the result of stroke rather than TBI, the examiner must state this conclusion using the "more likely than not" standard and account for both the Veteran's lay reports of memory loss dating back to his in-service concussion, the severity of the symptoms at the time of the concussion, and the November 2018 opinion of L.M., M.D., that attributes the Veteran's memory loss during the appeal period to TBI, as well as the July 2017 VA examiner's opinion that the Veteran currently experiences impaired visual spatial orientation as a result of TBI, specifically explaining why these opinions attributing current residuals to TBI are erroneous. The examiner must be advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If an examiner rejects the Veteran's reports, he or she must provide a reason for doing so. (Continued on the next page) The examination report must include a full rationale to support each conclusion contained therein. 3. Readjudicate the issues on appeal, to include the issue of entitlement to special monthly compensation based on housebound status or the need of regular aid and attendance, based on all the evidence of record. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.