Citation Nr: 21032356 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 13-25 994 DATE: May 26, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed since withdrawn. Entitlement to an increased (compensable) rating for right forearm scars is denied. FINDINGS OF FACT 1. During the recent April 2021 hearing before this Board, so prior to the promulgation of a decision in this appeal, the Veteran's attorney clearly and unambiguously indicated they are withdrawing the claim for a TDIU. 2. At no time during the rating period on appeal has the Veteran had a right forearm scar that is painful, unstable, or at least 144 square inches in size or that causes functional limitation; he already has a separate rating for consequent incomplete paralysis of his right ulnar nerve, so he already is being compensated for the associated neurological impairment (numbness or "loss of feeling") owing to that. CONCLUSIONS OF LAW 1. The criteria are met for withdrawal of the claim for a TDIU. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria are not met for a compensable rating for right forearm scars with residual hypesthesia. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Codes (DCs) 7800-7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In May 2014, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) of the Board who is no longer employed at the Board, since having retired; therefore, the Veteran was given opportunity to testify at another hearing before a different VLJ of the Board, who ultimately would decide this appeal, and the Veteran had this additional hearing in April 2021 Board before the undersigned VLJ. Transcripts of both hearings are of record. In the interim, in May 2015, and April 2018, the Board remanded these claims back to the local Regional Office (RO) (Agency of Original Jurisdiction (AOJ)) for further development and consideration including for VA examinations. There has been the required compliance, certainly acceptable substantial compliance, with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 1. Entitlement to a TDIU The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be by the appellant or by his or her authorized representative. Id. In this case at hand, the appellant has withdrawn his appeal of the claim of entitlement to a TDIU. In Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) found reasonable and adopted the standard for effective oral withdrawals at a hearing set forth in DeLisio v. Shinseki, 25 Vet. App. 45 (2011). Under that standard, an oral statement by an appellant, or his or her authorized representative, at a Board hearing is an effective withdrawal of an appeal under 38 C.F.R. § 20.204 where it is (1) "explicit"; (2) "unambiguous"; and (3) "done with a full understanding of the consequences of such action on the part of the claimant." According to the transcript of the recent April 2021 hearing before this Board, in a pre-hearing conference it was discussed that, during the pendency of this appeal, the Veteran was granted a higher (and maximum permissible) 100 percent schedular rating for his major depressive disorder with generalized anxiety disorder, panic disorder, and agoraphobia. This rating increase was made retroactively effective from August 29, 2007. Therefore, the attorney explained, the Veteran is no longer requesting a TDIU. He does not have additional service-connected disability independently ratable as at least 60-percent disabling, so this is not the type of situation contemplated in Bradley v. Peake, 22 Vet. App. 280 (2008), where additional compensation namely Special Monthly Compensation (SMC), might still be available. The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has recognized that a 100 percent schedular disability rating means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a Veteran to be totally disabled due to a particular service-connected disability or combination of disabilities pursuant to the Rating Schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). At the conclusion of the hearing, when the Veteran was done testifying on the issue of entitlement to an increased rating for his right forearm scars, this presiding VLJ asked the representing attorney and Veteran whether they had anything else to add. Neither of them indicated, in response, they had anything additional or else to add so, notably, including regarding the TDIU claim that had been indicated as being withdrawn. It is well settled that the need to ensure that a Veteran understands the consequences of claim withdrawal is particularly acute when 1) he suffers from psychiatric illness and 2) appears pro se before the Board, meaning unrepresented. See Comer v. Peake, 552 F.3d 1362 (D.C. 2009) (explaining that a veteran who "is afflicted with a significant psychological disability" may need additional assistance from the VA); see also Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980) (explaining that when a claimant at an administrative hearing is "handicapped by lack of counsel" a reviewing court must make a greater effort "to ensure that the claimant's rights have been adequately protected."). But this was not the situation here. Although the Veteran has service-connected mental illness, he is represented in this appeal by a private attorney, including at the hearing. The hearing since has been transcribed, so reduced to writing. Hearing testimony, once transcribed, can satisfy the requirement that a statement be "in writing". See, e.g., Tomlin v. Brown, 5 Vet. App. 355, 357-58 (1993). The Board finds that the oral withdrawal of the TDIU claim by the attorney during the April 2021 hearing before this Board was explicit, unambiguous, and done with a full understanding of the consequences of that action. Hence, there remain no allegations of errors of fact or law for appellate consideration concerning entitlement to a TDIU. Accordingly, the Board does not have jurisdiction to review the appeal of this claim and it is summarily dismissed. Increased Rating 2. Entitlement to an increased (compensable) rating for right forearm scars. The Veteran's scar(s) with residual hypesthesia is rated as noncompensable under DC 7805, which allows for scars to be rated under an appropriate diagnostic code. In August 2007, he filed his claim for an increased rating. During the pendency of his claim, the regulation concerning the evaluation of skin disorders, including scars, was revised initially effective from October 23, 2008, and then revised again effective from August 13, 2018. When, as here, the rating criteria are amended during the pendency of the appeal (review period), the Board considers both the former and revised criteria and applies whichever version is more favorable to the Veteran. However, should an increased rating be warranted under the revised criteria, the award may not be made effective before the effective date of the change unless expressly provided for in the regulation. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); see also VAOPGCPREC 7-03; VAOPGCPREC 3-00, 65 Fed. Reg. 33,422 (April 10, 2000); 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114. Disability evaluations are determined by comparing a Veteran's present symptoms with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R.§ 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. Id. § 4.3. Prior to October 23, 2008 The Veteran would be entitled to a compensable rating if he had scarring that is deep and causes limitation of motion if involving an area exceeding 6 square inches (DC 7801), or that is superficial and does not cause limitation of motion if it affects an area of 144 square inches or greater (DC 7802), or the scar results in frequent loss of covering of the skin over the scar (DC 7803), or the scar is painful on examination (DC 7804), or the scar otherwise limits the function of any affected part (DC 7805). A November 2008 VA examination report shows the Veteran reported that the scar on his right forearm is surrounded by numbness from just above the scar to the wrist. The numbness is present 100 percent of the time and never changes. He denied tenderness. The scars were 4.5 cm wide x 2 mm long, and 3 cm wide x 2 mm long. Upon examination, he had decreased sensation to monofilament surrounding a scar. The examination report is unremarkable for pain upon examination and specifically notes that he did not have tenderness. (A prior October 2005 examination report also notes that the scar did not have tenderness, but that he reported pain with strenuous use of his right arm with no functional impairment.) The report reflects that he had full range of motion of his right elbow and wrist and grip strength that was 4/5 to 5/5 (so normal or nearly normal). As the evidence is against finding that the Veteran had a scar that was painful on examination or unstable, meaning involving breakdown of the surrounding skin, a compensable rating is not warranted under DCs 7803-7804. The scars were also far less than the required size for a compensable rating based on size and were not shown to cause functional impairment, so a compensable rating also is not warranted alternatively under DCs 7801,7802, or 7805. Since October 23, 2008 (change in regulation) Effective from October 23, 2008, to August 13, 2018, DC 7801 provided ratings for scars, other than on the head, face, or neck, that were deep or that caused limited motion. Scars in an area or areas exceeding 6 square inches (39 sq.cm.) were rated 10-percent disabling. A 20 percent rating was warranted for scars affecting an area or areas of at least 12 square inches but less than 72 square inches. A 30 percent rating was warranted for scars affecting an area or areas of at least 72 square inches but less than 144 square inches, and a 40 percent rating was warranted for scars affecting an area or areas of 144 square inches or greater. Note (1) to DC 7801 provided that a deep scar was one associated with underlying soft tissue damage. DC 7802 provided ratings for scars, other than on the head, face, or neck, which were superficial or that did not cause limited motion. Superficial scars that did not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, were rated 10-percent disabling. Note (1) to DC 7802 provided that a superficial scar was one not associated with underlying soft tissue damage. DC 7804 provided a 10 percent rating for one or two scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If a scar is both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. DC 7805 provided that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under DCs 7800-04 under an appropriate diagnostic code. Effective August 13, 2018, a new General Rating Formula for the Skin revised DCs 7806, 7809, 7813, 7815 to 7817, 7820 to 7822, and 7824 to 7829. See 38 C.F.R. § 4.118 (2018). Additionally, DCs 7801's and 7802's language for scars was redefined. The Board notes that the Veteran's residual scars are not rated under any of these diagnostic codes, and his attorney has not suggested that any such rating is warranted. The report of a September 2011 VA examination shows the Veteran complained of "numbness where the scars are." On objective physical examination, the scars where 5 cm x 3 mm wide and 3 cm in length x 3 mm wide. The report reflects that the "scars are not painful. They are numb." It was noted that he had decreased sensation to probing along the actual linear scar areas of the arm and about 2 cm around them that was due to laceration of the superficial nerves in the area when he initially lacerated his forearm; it also was noted that it was not unexpected or of any complication. The examiner found no limitation of function because of the scars, including no functional impact on the Veteran's ability to work. The Veteran testified during his May 2014 Board hearing that his scar is painful to the touch in the area around the lower of his two scars. He also stated that his scar is unstable because it is "uncontrollable" in that it twitches sometime and goes numb. He denied oozing or breakdown but reported that sometimes his scars will "swell up a little bit" if the weather gets too hot. While he described having an "unstable" scar, his definition is not sufficient to warrant a finding of "unstable" for VA compensation purposes which, to reiterate, requires frequent loss of covering of skin over the scar. A July 2017 Disability Benefits Questionnaire (DBQ) reflects the Veteran's "complaint is he has numbness where the scars are." Upon examination the scars were noted to be "very superficial"; they were not painful. A December 2018 DBQ again indicates the Veteran's scars were not painful. Rather, it was noted he had pain and reduced grip strength related to nerve damage. But consider also that he already has a separate rating for incomplete paralysis of his right ulnar nerve under DC 8516 associated with his right forearm scar(s) with residual hypesthesia, and he does not currently have any appeal before this Board concerning the propriety of this other rating that compensates him for this related neurological impairment (numbness and "loss of feeling" that he complains of). During his April 2021 Board hearing, the Veteran testified that he has pain, numbness, and tingling in his arm. He said he cannot lift items, that he has a home aide (his son) to help him get dressed, cook, or do anything he needs to in his daily activities (also cannot write or sign, drive, etc.). He added that he resultantly must use his left hand since he does not have full use of his right forearm, hand and fingers owing to the service-connected impairment in this extremity. He also pointed out that he is right handed and that there actually are two laceration scars (not just one) causing the loss of feeling (numbness) and pain around the scars and in his elbow and in three fingers of his hand and palm. He said he takes 800mg of Motrin twice a day (once in the morning and once in the evening). The attorney also acknowledged, however, that the RO presently has jurisdiction over the propriety of the rating for the associated neurological impairment under DC 8516, therefore, admittedly not an issue that is currently before this Board. That notwithstanding, the attorney argues that a 10 percent rating (rather than a 0 percent, i.e., noncompensable rating) nonetheless is warranted for the scars, themselves, since they are painful and when considering the changes to the rating criteria that occurred as of August 13, 2018. The Board acknowledges the Veteran's complaints but finds that the more probative evidence is against finding that he has a painful scar or one causing functional limitation. The numbness to the skin, in proximity to a scar, noted on examination has not been shown by competent and credible evidence to cause functional limitations, and any claimed "tingling" also has not been shown to cause functional limitations that would warrant a rating under any other diagnostic code. The Veteran's scars are very superficial, stable, and fairly small in size (approximately a tenth of an inch in width and less than two inches in length). He is competent to state that he has pain; however, the Board find that the clinical records and examination reports are more probative (i.e., competent and credible) as to the actual origin of his pain. While it is possible for someone to have pain from a scar and pain due to a nerve, the Board finds that the most probative evidence is against finding that he has a painful scar. No examiner has found the scar to be painful, to include on touch (see October 2005, November 2008, September 2011, July 2017, and December 2018 examination reports/DBQs). Clinical records, as well, are unremarkable for findings of a painful scar. Thus, the Board may reasonably find that the clinical reports assigning the Veteran's pain to his separately rated nerve disability, and not instead to his scar, are the most probative evidence concerning this posited correlation. This is not the situation described in Mittleider v. West, 11 Vet. App. 181 (1998), where it was held that, when it is not possible to separate the effects of a service-connected disability from a nonservice-connected disability, this reasonable doubt must be resolved in the Veteran's favor and, for all intents and purposes, the signs and symptoms in question attributed to the service-connected disability. Rather, in this instance, based on the clinical records/examination reports, the Veteran's pain is attributed to his service-connected nerve disability that is separately rated under DC 8516 instead of to his service-connected scar disability that is rated under DC 7805. To twice compensate him for this same neurological impairment would contravene VA's anti-pyramiding regulation. See 38 C.F.R. § 4.14. If, as apparently is the case, the Veteran is discontent with the separate 10 percent rating for this associated neurological impairment that is separately rated under DC 8516, the proper recourse is to contest that rating starting at the RO level which his attorney suggested during the recent April 2021 hearing already is underway but admitted not on appeal to this Board. For these reasons and bases, a compensable rating is not warranted for the right forearm scars, themselves. And, as the preponderance of the evidence is against this claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.