Citation Nr: 21041309 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 15-12 550 DATE: July 8, 2021 ORDER An initial 30 percent rating for painful scars of the bilateral upper extremities, posterior trunk, anterior trunk, and neck is granted. REMANDED Entitlement to service connection for a head injury is remanded. Entitlement to service connection for a back injury is remanded. Entitlement to service connection for a neck injury is remanded. Entitlement to service connection for vertigo is remanded. Entitlement to service connection for multiple sclerosis is remanded. Entitlement to a total disability rating due to individual unemployability for the period prior to December 12, 2018 is remanded. FINDING OF FACT Since the inception of the appeal period, the Veteran's scars of the bilateral upper extremities, posterior trunk, anterior trunk, and linear scars have been painful. CONCLUSION OF LAW The criteria for entitlement to an initial 30 percent rating for scars of the bilateral upper extremities, posterior trunk, anterior trunk, and linear scars have been met. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1988 to August 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Nashville, Tennessee (Agency of Original Jurisdiction (AOJ)). As a preliminary matter, the Board finds it helpful to discuss the relevant procedural history of the Veteran's claims. In November 2009, the AOJ denied the Veteran's claims for service connection for a head injury, back injury, and neck injury on the basis that while there was evidence of an in-service motor vehicle accident, there was no evidence of any head, neck, or back injuries. The Veteran did not appeal or submit new and material evidence within one year. Subsequently, in July 2012, the Veteran requested to reopen his service connection claims for a head injury, neck injury, and back injury. In an August 2013 rating decision, the AOJ denied the Veteran's request. The Veteran timely appealed. Ultimately, the appeal was before the Board in January 2019. Upon review of the record, Board remanded the requests to reopen for additional evidentiary development, specifically to obtain any outstanding service treatment records. Upon remand, the RO made a request through the Personnel Information Exchange System (PIES) to the Records Management Center (RMC) for the Veteran's service treatment record and obtained the requested treatment records from the William Beaumont Army Medical Center. Accordingly, the Board finds that there has been substantial compliance with the remand directives from January 2019. See Stegall v. West, 11 Vet. Appl 268, 271 (1998) (holding when a remand is issued, the Veteran is entitled, as a matter of law, the right to compliance with the remanded order). In that regard, pursuant to 38 C.F.R. § 3.156(c), where at any time after VA issues a decision on an original claim, VA receives relevant service records that existed and had not been associated with the claims file when it first decided the claim, VA will reconsider the claim on its merits. 38 C.F.R. § 3.156(c)(1). Such records include (i) service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name; (ii) additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and (iii) declassified records that could not have been obtained because the records were classified when VA decided the claim. See 38 C.F.R. § 3.156(c)(1). In essence, the receipt of relevant service records unavailable at the time of the last final rating decision serves to vitiate the finality of that decision. See 38 C.F.R. § 3.156(c) ("Where the new and material evidence consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction. This comprehends official service department records which presumably have been misplaced and have now been located and forwarded to the Department of Veterans Affairs."). In the instant case, copies of the Veteran's service treatment records from the William Beaumont Army Medical Center were obtained and associated with the claims file in March 2020. The Veteran's complete service treatment records were not previously of record. Therefore, the Board finds that the service treatment records obtained in March 2020 constitute "relevant official service records that existed and had not been associated with the claims file when it first decided the claim," as they provide a more complete picture of the Veteran's in-service injury which is pertinent to the underlying service connection claims. See 38 C.F.R. § 3.156(c)(1). Therefore, as the RO obtained the Veteran's STRs in March 2020, under 38 C.F.R. § 3.156(c)(1), his claims for service connection for a head injury, neck injury, and back injury are being reconsidered without regard to the previous final denial. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under DC 7801, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage warrant a 40 percent rating for area(s) of 144 square inches (929 square centimeters) or greater; warrant a 30 percent rating for area(s) of at least 72 square inches (465 square centimeters) but less than 144 square inches (929 square centimeters); warrant a 20 percent rating for area(s) of at least 12 square inches (77 square centimeters) but less than 72 square inches (465 square centimeters); and warrant a ten percent rating for area(s) of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). Under DC 7802, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage warrant a 10 percent rating for area(s) of 144 square inches (929 square centimeters) or greater. Note (1) indicates that for the purposes of DCs 7801 and 7802 the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Under DC 7804, five or more scars that are unstable or painful warrant a 30 percent rating. Three or four scars that are unstable or painful warrant a 20 percent rating. One or two scars that are unstable or painful warrant a 10 percent rating. Note 1 to DC 7804 defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. According to Note 2, if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, DC 7804. Under DC 7805, other scars and other effects of scars evaluated under DCs 7800, 7801, 7802, or 7804, any disabling effect(s) not considered in in a rating provided under DCs 7800-04 are evaluated under an appropriate diagnostic code. The rating criteria for skin disorders were also amended effective August 13, 2018. However, as those amendments do not affect DCs 7800-04, they are not relevant to the current decision. Turning to the facts of the case, in July 2012, the Veteran filed a claim for service connection for scars. At the March 2013 VA examination, the Veteran reported that his keloid scars on his neck, anterior chest, and bilateral shoulders were "itchy" and sometimes developed pimples that opened and leaked. Upon examination, the Veteran had two linear scars and three superficial non-linear scars of the right shoulder, one linear and five superficial non-linear scars of the left shoulder, one linear scar and six superficial non-linear scars of the anterior trunk, one linear and two superficial non-linear scars of the posterior trunk and two scars one the neck. The Veteran's scars were attributed to lacerations rather than burns and his scars did not result in limitation of function. The scars of the right upper extremity were about 7 cm2 in total area; the scars in the left upper extremity were about 45 cm2 in total area; and the scars to the anterior trunk and posterior trunk were about 12.9 cm2 and 2 cm2 in total area, respectively. While the examiner noted that the neck scar was disfiguring, the examiner found that the Veteran's scars were neither painful nor unstable. Based on this examination, the RO granted service connection for residual scars of the bilateral upper extremities, residual scars of the anterior trunk, residual scars of the posterior trunk, and residual linear scars and assigned noncompensable ratings, effective August 1, 2012. The Veteran timely appealed, nothing that his scars were painful and sensitive. See Notice of Disagreement dated April 2014. At the January 2019 VA examination, the examiner found that the Veteran's scars were neither painful nor unstable; there was no limitation of function attributable to any of the scars. However, the Veteran stated that his scars were often pruritic and at times could be painful. He also indicated that certain clothes and temperature changes could make them sensitive. Most recently, at the March 2021 VA examination, the examiner found that the Veteran's scars were tender and painful. Certain articles of clothing cause pruritis in the scars and he scratched them, causing them to bleed. Based on this examination, the AOJ granted a 30 percent rating for painful scars of the bilateral upper extremities and anterior trunk. Also of record are the Veteran's lay statements. At the August 2018 Board hearing, the Veteran testified that his scars were both painful and unstable. He described the cyclical nature of his scars: he stated they burned and itched and also leaked; after they healed, they would itch and leak again. The Veteran's medical treatment records also document the Veteran's continued complaints of pain, itching, bleeding, and leaking of his keloid scars. His treating physicians advised him to use topical ointment to alleviate his symptoms. Upon consideration of the record, the Board finds that a uniform 30 percent rating is warranted for the Veteran's scars from the inception of the appeal period. As previously noted, under 38 C.F.R. § 4.118, Diagnostic Code 7804, the maximum 30 percent rating is warranted when five or more scars are either unstable or painful. Here, the objective medical evidence and subjective lay evidence establish that in addition to leaking and itching, the Veteran's multiple keloids have been painful and subject to pruritis. Based on this, the Board finds that an initial 30 percent rating for the Veteran's scars is warranted, effective August 1, 2012. REASONS FOR REMAND As for the remaining issues for service connection, the Veteran's claims stem from an in-service motor vehicle accident. For the reasons that follow, the Board finds that remand is required for further evidentiary development. Service Connection for a Head Injury Service Connection for Vertigo Service Connection for Multiple Sclerosis The Veteran is seeking service connection for an in-service head injury. Notably, service treatment records reflect that the Veteran was involved in a motor vehicle accident in January 1989; his injuries included loss of consciousness for approximately five minutes and headaches. Accordingly, the Board concedes the occurrence of an in-service head injury. Thus, the issue is whether the Veteran has any residuals stemming from this conceded injury. At the February 2021 VA examination, the examiner provided a negative nexus, finding that the Veteran did not incur any in-service head injury. In an April 2021 addendum, a VA psychologist found that the Veteran's in-service head injury did constitute a TBI but was unable to determine if the Veteran manifested any residuals, to include vertigo and multiple sclerosis. Given these facts, the Board finds that remand is required to obtain an adequate opinion based on the Veteran's established in-service head injury. Service Connection for a Back Injury The Veteran is seeking service connection for a back injury. Notably, his service treatment records reflect that due to the motor vehicle accident, the Veteran complained of some back pain; treating physicians noted some abrasions to his back. At the December 2020 VA examination, the examiner provided a negative nexus, reasoning that the Veteran's in-service injury was to his mid-thoracic spine rather than his lumbar spine. The Board notes that this opinion is inconsistent with precedential case law. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Veteran's claim for service connection for a back disability includes any disabilities related to the thoracic and lumbar spine. Thus, remand is required to obtain an adequate opinion regarding the Veteran's spine. Service Connection for a Neck Injury The Board also finds that an addendum opinion is required regarding the cervical spine claim. The December 2020 VA examiner opined that the Veteran's cervical spine disability was not related to service, reasoning that the Veteran's service treatment records only document "some tenderness" to the neck the day of the accident; there was no evidence of a chronic cervical spine disability. However, review of the Veteran's service treatment records document abrasions, lacerations, and pain to the cervical spine for several days after the accident, which suggests that the Veteran's injuries are more serious than the December 2020 examiner suggested. Thus, remand is required to obtain another opinion based on the evidence of record. Service Connection for a Left and Right Shoulder Disability As for the Veteran's left shoulder, the December 2020 VA examiner found that there was no evidence of a left shoulder injury during service. However, review of the Veteran's service treatment records note his continued complaints of left shoulder pain after the motor vehicle accident. As the negative nexus opinion is based on an inaccurate factual premise, remand is required to obtain another opinion. The examiner should also opine as to whether the Veteran's right shoulder is either caused by service or caused or aggravated by the left shoulder disability. TDIU prior to December 12, 2018 The Board notes that the RO granted TDIU effective December 12, 2018, the date the schedular requirement was met. See Rating Decision dated April 2021. However, it appears the Veteran last worked in November 2016. See VA Form 21-8940, Application for Increased Compensation based on Unemployability, dated August 2020. Given the outcome of the appeals decided herein coupled with the potential outcomes of the claims being remanded, the Board finds that the issue of entitlement to TDIU prior to December 12, 2018 must be remanded, as it is inextricably intertwined with the actions requested herein. The matters are REMANDED for the following action: 1. Associate with the claims folder update treatment records. 2. Schedule the Veteran for a VA examination for his in-service head injury and claimed residuals. The examiner must review the claims file, to include a copy of this remand. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is it at least as likely as not that the Veteran manifests residuals of the conceded in-service TBI, to include headaches, vertigo, and multiple sclerosis? Provide a rationale to support the opinion. In providing the requested opinion, consider the Veteran's description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 3. Schedule the Veteran for a VA examination for his cervical, thoracic, and lumbar spine disabilities. The examiner must review the claims file, to include a copy of this remand. The examiner is asked to provide a response to the following: Is it at least as likely as not that the Veteran's claimed disability was caused by or is otherwise etiologically related to his in-service motor vehicle accident? Provide a rationale to support the opinion. In providing the requested opinion, consider the Veteran's description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 4. Schedule the Veteran for a VA examination for his bilateral shoulder disabilities. The examiner must review the claims file, to include a copy of this remand. The examiner is asked to provide a response to the following: Is it at least as likely as not that the Veteran's claimed shoulder disabilities were caused by or is otherwise etiologically related to his in-service motor vehicle accident? Provide a rationale to support the opinion. In providing the requested opinion, consider the Veteran's description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Orie, 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.