Citation Nr: 21030111 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-05 485 DATE: May 17, 2021 ORDER Entitlement to an initial compensable rating for the Veteran's service-connected left lower extremity scar prior to August 6, 2018 is denied. Entitlement to a 10 percent rating between August 6, 2018 and July 12, 2020 for the Veteran's left lower extremity scar is granted. Entitlement to a rating in excess of 10 percent from August 6, 2018 for the Veteran's left lower extremity scar is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for left hand scar is remanded. Entitlement to an initial compensable rating for left upper extremity scars prior to July 13, 2020, and in excess of 10 percent, thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to August 6, 2018, the evidence demonstrates that the Veteran's left lower extremity scar was neither unstable nor painful. 2. From August 6, 2018, the Veteran's left lower extremity scar is found to be painful but not unstable. CONCLUSIONS OF LAW 1. Prior to August 6, 2018, the criteria for a compensable disability rating for a left lower extremity scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. 2. From August 6, 2018 to July 12, 2020, the criteria for a 10 percent disability rating, but no higher, for a left lower extremity scar have been met. U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. 3. From July 13, 2020, the criteria for a disability rating in excess of 10 percent for a left lower extremity scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the from June 1976 to September 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran testified before the Board at a videoconference hearing. A transcript of that hearing is of record. In March 2020, the issues were remanded for further development. During the appeal period, in a July 2020 rating decision, the RO increased the Veteran's disability ratings for a painful scar on the dorsal aspect of the left index finger, and the left lower extremity to 10 percent each, respectively, effective July 13, 2020. The issues have been recharacterized accordingly. Under Rice v. Shinseki the Board has jurisdiction over a TDIU claim as part and parcel of the Veteran's increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part of a claim for increased compensation). This issue has been separately characterized in the issues above in accordance with that decision. Regarding the Veteran's left lower extremity scar, the development requested in the March 2020 Remand is complete, and the appeal is ready for adjudication. Regrettably, more development is necessary before the Veteran's remaining claims may be considered. Entitlement to Increased Ratings for Left Lower Extremity Scars Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran's scars are rated under Diagnostic Code 7804 for unstable or painful scar(s). The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7804 was not changed by the August 13, 2018, amendments. Under Diagnostic Code 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating. Three or four scars that are unstable or painful scars warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. The evidence of record includes a February 2012 VA examination in which a superficial non-linear scar of the left lower extremity is noted. The examiner noted discoloration, the affected area was lighter than surrounding skin and the scar was found to be 7.5 wide by 10.5 centimeters long. The Veteran's scar was not found to be painful or unstable. In his January 2013 notice of disagreement, the Veteran notes that he wished to disagree with the rating decisions on all three issues considered in the March 2012 rating decision, it was noted that he had decreased limitation of the left hand which caused problems working and had constant pain, cramping and sensitivity to cold. The Veteran did not specifically mention his left thigh in this statement. During his August 2018 hearing before the Board, however, the Veteran reported occasional pain at the site of his left thigh scar. Further, on examination in July 2020, the Veteran was found to have a painful, but not unstable, scar at the left lower extremity. As such, given that the Veteran first reported pain from his left lower extremity scar during his Board hearing, a 10 percent disability rating is warranted from that date onward. Of note, the Veteran, in its July 2020 rating decision, the RO increased the Veteran's disability rating for his left lower extremity scar and his left upper extremity scar to 10 percent, each, respectively. At that time, the Veteran was also in receipt of a 10 percent rating for a left-hand scar. As noted above, a 20 percent rating is warranted where there are three or four scars that are unstable or painful. However, here, the Veteran is in receipt of three separate ratings for 10 percent which, when combined, amounts to a 27 percent rating. See 38 C.F.R. § 4.25. The Board will not interrupt this rating at this time. However, a 10 percent is the highest available rating for the Veteran's left lower extremity scar which is shown to be painful but not unstable, and the Veteran is not shown to have five or more service-connected scars which are unstable or painful, or additional related residuals to his left thigh scar which might warrant a higher rating. Thus, as the evidence demonstrates a scar which is neither painful nor unstable prior to the Veteran's August 6, 2018 hearing, and a painful scar thereafter, a compensable rating is not warranted prior to that date, and a rating in excess of 10 percent is not warranted thereafter. REASONS FOR REMAND Entitlement to an initial rating in excess of 10 percent for left hand scar and entitlement to an initial compensable rating for left upper extremity scars prior to July 13, 2020, and in excess of 10 percent, thereafter, are remanded. In March 2020, the RO remanded the issues in order to determine the current severity of the Veteran's left-hand scars. Thereafter, in July 2020, the Veteran was afforded a new examination. However, the Board finds that the examination conducted may not adequately discuss the totality of the impairment caused by his scars. Specifically, since the Veteran's first VA examination in February 2011, the Veteran has been noted to have decreased left-hand strength, decreased motion, and decreased sensation in the left hand. The Board notes that disabling effects not considered under diagnostic code 7804 should be considered under other appropriate diagnostic codes. See 38 C.F.R. § 4.118, Diagnostic Code 7805. Thus, the Veteran should be afforded a complete examination of the hand. It should be determined whether the Veteran's 4th digit scar or left upper extremity scar effect sensation, strength, and movement of the left hand and those findings must be documented in detail. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. As the issue of increased ratings for left-hand and left upper extremity scars may have an impact on the Veteran's TDIU claim and are therefore inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined claim is therefore required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an/the appropriate clinician(s) to determine the current severity of his service-connected left hand and left upper extremity scars. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner is asked to comment upon any and all limitations related to his service-connected scars and to document with specificity any loss of use, motion, sensation and/or strength related to those disabilities. (Continued on the next page) 2. Then readjudicate the claims remaining on appeal. If any of the benefits sought are not granted in full, furnish the Veteran and his representative with a supplemental statement of the case and an opportunity to respond, and return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Slovick, 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.