Citation Nr: 21041152 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-43 308 DATE: July 8, 2021 ORDER Entitlement to a compensable disability rating for burn scars of the hands is denied. Entitlement to an initial rating in excess of 30 percent for peripheral neuropathy of the right upper extremity associated with burn scars is denied. Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the left upper extremity associated with burn scars is denied. Entitlement to a compensable rating for Raynaud's syndrome is denied. REMANDED Entitlement to an initial compensable rating for a traumatic brain injury (TBI) is remanded. Entitlement to a compensable rating for burn scars of the face is remanded. FINDINGS OF FACT 1. The Veteran's residual symptoms from burn scars on both hands are rated as peripheral neuropathy, which contemplates incomplete paralysis with associated pain, tingling, and numbness; there are no other residual symptoms, to include from scarring, that have not been contemplated under that rating. 2. The Veteran's peripheral neuropathy of the right (major) upper extremity has been manifested by incomplete paralysis that is moderate in degree. 3. The Veteran's peripheral neuropathy of the left (minor) upper extremity has been manifested by incomplete paralysis that is moderate in degree. 4. The Veteran's Raynaud's syndrome has not been manifested by any functional impairment. CONCLUSIONS OF LAW 1. Burn scar residual symptoms being otherwise rated as peripheral neuropathy of the upper extremities, the criteria for a separate compensable rating for burn scars of the hands have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.118, Diagnostic Code (DC) 7802 (2020). 2. The criteria for an initial rating in excess of 30 percent for peripheral neuropathy of the right (major) upper extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.124A, DC 8514 (2020). 3. The criteria for an initial rating in excess of 20 percent for peripheral neuropathy of the left (minor) upper extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.124A, DC 8514 (2020). 4. The criteria for a compensable rating for Raynaud's syndrome have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.104, DC 7117 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from April 1998 to July 2008 and in the Air Force from October 2009 to November 2010. In November 2018, the Board of Veterans' Appeals (Board) remanded the issues on appeal for further evidentiary development. The Board notes that the Veteran initially appealed noncompensable ratings assigned for service-connected burn scars of the hands and face. In so doing, he argued that his symptoms were more accurately characterized as nerve damage in the burn areas. The Veteran was afforded a VA peripheral nerve examination in September 2020 which confirmed nerve damage in both upper extremities associated with burn scars. Thereafter, in a September 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted separate 30 percent and 20 percent ratings for (respectively) right upper extremity and left upper extremity peripheral neuropathy. As these symptoms were raised by the Veteran as part and parcel of his appeal of the ratings assigned for his burn scar residuals, the Board will address them below. Increased Rating Claims 1. Entitlement to a compensable rating for burn scars of the hands The Veteran is in receipt of a noncompensable rating for burn scars of the hands under DC 7802. As noted above, the AOJ has granted separate compensable ratings for peripheral neuropathy of both upper extremities associated with burn scars; these evaluations encompass nerve impairment, to include symptoms of pain, numbness, and tingling. Mindful of the rule against pyramiding, or evaluating the same symptoms under multiple diagnoses, the Board finds that the Veteran's upper extremity burn scar evaluation is properly evaluated as noncompensable. See 38 C.F.R. § 4.14. Under DC 7802, a 10 percent rating is warranted for scar(s) with an area or areas of 144 square inches (929 sq. cm) or greater. 38 C.F.R. § 4.118, DC 7802. DCs 7801 and 7804 also apply to scars and are thus also potentially applicable. (DC 7800 is not applicable as it addresses scars of the head, face, or neck.) DC 7801 addresses scars not of the head, face, or neck that are deep and nonlinear. Because the Veteran's bilateral hand scarring is neither deep nor nonlinear, DC 7801 does not provide grounds for a compensable rating. Additionally, DC 7802 provides a maximum 10 percent rating for superficial and nonlinear scarring with an area or areas of at least 144 square inches; an evaluation under this DC need not be considered in this case, as the scars at issue are not large enough to meet this criteria. DC 7804 provides that a 10 percent rating is warranted for one or two scars that are unstable or painful; a 20 percent rating is warranted for three or four scars that are unstable or painful; and a 30 percent rating is warranted for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, DC 7804. Note (1) to DC 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, the rater should add 10 percent to the evaluation that is based on the total number of unstable or painful scars. On review, the Board finds that there is no probative evidence of symptomatology related to burn scars on the hands warranting a compensable rating under any of the DCs applicable to scars. The Veteran received a VA scars examination in May 2013. The report notes that, historically, the Veteran was involved in a car bomb incident in service which left him with second-degree burns. He was treated in a hospital for three months and debrided regularly. The report from that examination showed that he described symptoms of sensitive with extreme temperatures, stinging, numbness, and pain (symptoms that were ultimately attributed to nerve damage). There was no evidence of instability, and the scars were observed to be superficial and nonlinear. The scar on the right hand was 5.5 cm by 1 cm, and the scar on the left hand was too well-healed to see or measure. In April 2014, the Veteran was afforded another examination. That report reflects that neither of his hand scars were deep, painful, or unstable. The scar on the right hand was noted to be 9 square cm, while no observable scar on the left hand was noted. The Veteran again described nerve-related symptoms, to include enhanced sensitivity. In September 2020, the Veteran was afforded a peripheral nerves examination which confirmed the presence of neuropathy in both upper extremities. The Board will address the propriety of the ratings assigned for these symptoms below. The Board has reviewed the Veteran's VA treatment records, which do not indicate ongoing treatment for scar-related symptoms. Accordingly, the Board finds that the preponderance of the evidence is against entitlement to compensable ratings for burn scars of either hand. In short, there is simply no probative evidence of record demonstrating that the Veteran's scarring (considered separately from nerve-related impairment) has involved an area or areas of at least 144 square inches, nor have the Veteran's scars been painful or unstable, as is required for a compensable rating. See 38 C.F.R. § 4.118. As noted above, the VA examination reports of record reflect that the Veteran's symptoms are attributable to peripheral neuropathy; he has been separately compensated for those symptoms. There is no evidence to suggest that the Veteran's burns scar on his hands, considered apart from nerve damage, meet the criteria for a compensable rating. The Board has considered the Veteran's lay statements as to his scar symptoms. Overall, his lay reports are consistent with the RO's determination that his burn scar residuals are best characterized as nerve impairment. There is no lay or medical evidence of functional impairment specifically due to scarring on either hand. Consequently, the Board finds that the Veteran's lay statements, in combination with the findings of VA medical professionals, are entirely consistent with his current noncompensable rating. In sum, the Board finds that the criteria for a compensable rating under DC 7802 or any other DC pertaining to scarring have not been met at any point during the period under review. Neither the Veteran nor his attorney have raised any other pertinent issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the record). Accordingly, the claim for a compensable rating must be denied. 2. Entitlement to an initial rating in excess of 30 percent for peripheral neuropathy of the right (major) upper extremity 3. Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the left (minor) upper extremity The Veteran is in receipt of 30 percent and 20 percent ratings for (respectively) right and left upper extremity peripheral neuropathy, under 38 C.F.R. § 4.124A, DC 8514. DC 8514 applies to impairment of the musculospiral nerve (radial nerve). For the major upper extremity, a 30 percent rating is warranted for incomplete paralysis that is moderate; a 50 percent rating is warranted for incomplete paralysis that is severe; and a 70 percent rating is warranted for complete paralysis with associated disability of the wrist, hand, and fingers. For the minor upper extremity, a 20 percent rating is warranted for incomplete paralysis that is mild or moderate; a 40 percent rating is warranted for incomplete paralysis that is severe; and a 60 percent rating is warranted for complete paralysis. Id. The term "incomplete paralysis," with respect to peripheral nerve injuries, indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the lesion or to partial regeneration. Where the involvement is wholly sensory, the rating should be for mild, or at the most, moderate symptomatology. 38 C.F.R. § 4.124A. The Veteran has consistently complained of nerve impairment throughout the appeal period, including symptoms of pain and oversensitivity. Prior to filing the instant claim in November 2013, a VA scars examination report noted symptoms of skin sensitivity. An April 2014 VA scars examination report likewise noted these symptoms. In his July 2016 VA Form 9, the Veteran explained that his upper extremity issues were due to "nerve damage and sensitivity to the elements." He noted that his doctor had prescribed him medication to treat nerve pain and submitted a VA clinical note from August 2013 in which a physician diagnosed the Veteran with "post-burn neuropathy pain" and "hypersensitivity" (no opinion was provided regarding the overall severity of these symptoms). In September 2020, the Veteran was afforded a VA peripheral nerves examination, which confirmed a diagnosis of peripheral neuropathy in both upper extremities that was secondary to second- and third-degree burns. The Veteran reported chronic daily neuropathy to the distal arms and hands; he reported "severe burning and hypersensitivity to the area with constant pain." The examiner noted that the Veteran was right-arm dominant, and noted that he experienced moderate, constant pain and moderate numbness in both upper extremities. There was no evidence of decreased strength or muscle atrophy. Reflexes were normal although sensation was observed to have decreased. There were no trophic changes, and the Veteran's gait was normal. The examiner characterized the Veteran's peripheral neuropathy as involving the ulnar and radial nerves; overall impairment was noted to be moderate in both upper extremities. Based on the above, the Board finds that the current 30 percent and 20 percent ratings are appropriate in this case. As noted, those evaluations contemplate moderate incomplete paralysis. The evidence of record demonstrates that the Veteran has experienced pain, numbness, burning, oversensitivity, and decreased sensation in both upper extremities throughout the appellate period. Moreover, the September 2020 VA examination report specifically noted moderate symptoms of pain and numbness, and characterized the Veteran's peripheral neuropathy as moderate overall. Prior medical records document ongoing treatment for nerve impairment, but do not establish more severe symptoms than those noted in the September 2020 VA examination report. It is clear that these symptoms have been present throughout the appeal period. As such, the uniform rating assigned by the RO is appropriate. The Board has considered whether the Veteran is entitled to higher evaluations; however, the evidence does not show that the Veteran has suffered severe incomplete paralysis or complete paralysis in either upper extremity. As discussed above, the September 2020 VA examiner specifically found that the Veteran had moderate rather than severe incomplete paralysis. Moreover, the Veteran displayed no loss of strength or muscle atrophy and his reflexes were normal. The Veteran reported having pain, numbness, and has in the past reported oversensitivity and burning sensations. These symptoms are consistent with moderate incomplete paralysis. The Board reiterates that wholly sensory involvement necessitates a rating of mild or, at most, moderate symptomatology. 38 C.F.R. § 4.124A. The Board concludes that the preponderance of the evidence is against the assignment of increased initial ratings. The Board has considered the Veteran's lay statements with regard to his upper extremity nerve impairment. The AOJ has honored these statements by affording him compensable ratings. The Veteran has not contested the findings of the September 2020 VA examination report, nor has he alleged being diagnosed with "severe" incomplete paralysis of either upper extremity. Neither the Veteran nor his attorney have raised any other pertinent issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. at 369-70. Accordingly, increased initial ratings must be denied. 4. Entitlement to a compensable rating for Raynaud's syndrome In its prior remand, the Board took jurisdiction over the Veteran's noncompensable rating assigned for Raynaud's syndrome. His symptoms for this disease are rated under DC 7117. That DC provides a 10 percent rating for characteristic attacks occurring one ot three times a week. 38 C.F.R. § 4.104, DC 7117. Higher ratings are available for more frequent characteristic attacks or more severe symptoms such as digital ulcers or autoamputation. Id. On review, the Board can find no evidence that the Veteran has ever suffered any characteristic attacks related to Raynaud's syndrome. During the appeal period he has reported being highly sensitive to sun exposure and weather conditions in general (as in, for example, a November 2013 Disability Benefits Questionnaire completed by a private physician). He has also reported a variety of symptoms, including pain and numbness, attributed to nerve impairment. In September 2019, he was afforded a VA vascular examination. The report includes the examiner's opinion that, in fact, there was "no objective evidence to support a diagnosis for Raynaud's." Rather, the examiner found, the Veteran's symptoms were instead attributable to neuropathy secondary to burns. The Veteran has not contested the VA examiner's findings indicating the diagnosis of Raynaud's syndrome was inappropriate in the Veteran's case. The Board is unclear as to how service connection for this disease was granted; nonetheless, there is no evidence whatsoever to suggest that the Veteran has suffered characteristic attacks related to Raynaud's syndrome. The symptoms attributed to this disorder appear to have been compensated by the ratings assigned for upper extremity peripheral neuropathy. There is no basis for a compensable rating. REASONS FOR REMAND 5. Entitlement to an initial compensable rating for TBI residuals The Veteran was most recently afforded a VA examination for TBI residuals in September 2019. The report noted only subjective symptoms, which the examiner suggested were likely caused by a co-existing psychiatric condition. Thereafter, the Veteran contested these findings, stating in October 2020 correspondence that he was seen by the examiner for "about ten minutes," during which he was asked a series of "random questions that did not seem relevant to an examination for TBI." Moreover, the record demonstrates that the Veteran has submitted evidence that he has suffered many of the symptoms listed in the TBI rating criteria, including cognitive impairment and memory loss, that were not addressed in the VA TBI examination report. The Board agrees that an updated examination is in order. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). 6. Entitlement to a compensable rating for burn scars of the face The Veteran is in receipt of a noncompensable rating for burn scars of the face. He has repeatedly argued, however, that his symptoms should be rated as nerve damage, and a VA examiner confirmed in September 2020 that the Veteran suffered from neuropathy associated with his service-connected burn scars of the arms and face. However, while he received a peripheral nerve examination in September 2020, the report only dealt with symptoms of the upper extremities. There was no evaluation of facial nerve symptoms despite the examiner's finding of facial neuropathy. The Board notes that the rating code includes evaluations for facial nerve symptoms. For example, DC 8207 provides 10, 20, and 30 percent ratings for paralysis-type symptoms of varying severity of the facial muscles. 38 C.F.R. § 4.124A. The Board finds another examination is needed to ascertain the nature and severity of the Veteran's symptoms. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he submit any pertinent, outstanding records in his possession from private treatment providers. If indicated, the Veteran should be asked to provide the necessary authorization so that VA may make reasonable attempts to obtain the records. All such attempts must be documented in the record. (Continued on the next page) 2. Schedule the Veteran for an examination of the current severity of his TBI. The clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria. In particular, the examiner should discuss private medical records submitted by the Veteran indicating cognitive impairment possibly attributable to TBI. The examiner should be sure to record the Veteran's lay assertions regarding his TBI and residual symptoms. 3. Schedule the Veteran for an examination of the current severity of his facial neuropathy associated with service-connected burn scars. The clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Minot, 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.