Citation Nr: 21041653 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 18-00 317A DATE: July 9, 2021 ORDER Entitlement to an increased 30 percent disability rating for painful scars of the right wrist (dorsal 5th finger and 5th metacarpal region, right wrist, palmar aspect of the 5th finger, and ulnar palm) is granted, subject to controlling regulations governing the payment of monetary awards. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran has five painful scars of the right wrist (dorsal 5th finger and 5th metacarpal region, right wrist, palmar aspect of the 5th finger, and ulnar palm) which do not involve the head, face, or neck and do not affect an area of at least 144 square inches (929 square centimeters) or greater. CONCLUSION OF LAW The criteria for an increased 30 percent disability rating for painful scars of the right wrist (dorsal 5th finger and 5th metacarpal region, right wrist, palmar aspect of the 5th finger, and ulnar palm) are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.118, Diagnostic Code (DC) 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1979 to March 1983 and September 1986 to July 1990 and performed service in the U.S. Army National Guard. These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, continued the 20 percent evaluation for painful scars of the right wrist (dorsal 5th finger and 5th metacarpal region, right wrist, palmar aspect of the 5th finger, and ulnar palm). The Veteran timely appealed this issue. In December 2020, the Veteran appeared at a virtual hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. Entitlement to a TDIU has been raised as part and parcel of the claim for an increased disability rating for painful scars of the right wrist. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Entitlement to an increased disability rating for painful scars of the right wrist (dorsal 5th finger and 5th metacarpal region, right wrist, palmar aspect of the 5th finger, and ulnar palm) Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Veteran has two separate disability ratings for scars: painful scars of the right wrist (dorsal 5th finger and 5th metacarpal region, right wrist, palmar aspect of the 5th finger, and ulnar palm) associated with fifth metacarpal fracture right little finger and right ring finger with post-operative scars of the dorsal and ulnar aspects of the right hand (limitation of motion reduced to scars) under DC 7804, and surgical scars (right upper extremity wrist and fingers) associated with fifth metacarpal fracture right little finger and right ring finger with post-operative scars of the dorsal and ulnar aspects of the right hand (limitation of motion reduced to scars) under DC 7805. In his September 2017 Notice of Disagreement, the Veteran indicated that he disagreed with the evaluation assigned his painful scars of the right hand under DC 7805. However, as will be discussed further below, based on the Veteran's December 2020 Board testimony and the evidence of record, the Board will characterize the claim as one for an increased disability rating for painful scars of the right wrist (dorsal 5th finger and 5th metacarpal region, right wrist, palmar aspect of the 5th finger, and ulnar palm) associated with fifth metacarpal fracture right little finger and right ring finger with post-operative scars of the dorsal and ulnar aspects of the right hand (limitation of motion reduced to scars) under DC 7804. In this regard, the Board notes that the selection of a particular diagnostic code "is a determination that is completely dependent upon the facts of a particular case," and the Board has discretion in determining the appropriate diagnostic code. Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (applying the more deferential "arbitrary, capricious" standard, rather than de novo review, to the Board's determination of the appropriate diagnostic code). Under DC 7801, the following ratings apply for scars not of the head, face, or neck that are deep and nonlinear: a 10 percent rating is warranted where the scarring affects an area or areas of at least 6 square inches (39 square centimeters), but less than 12 square inches (77 square centimeters); a 20 percent rating is warranted where the scarring affects an area or areas of at least 12 square inches (77 square centimeters), but less than 72 square inches (465 square centimeters); a 30 percent rating is warranted where the scarring affects an area or areas of at least 72 square inches (465 square centimeters), but less than 144 square inches (929 square centimeters); and a 40 percent rating is warranted where the scarring affects an area or areas of 144 square inches (929 square centimeters) or greater. Under DC 7802, a maximum 10 percent rating is warranted for scars not of the head, face, or neck that are superficial and nonlinear, and which affect an area or areas of 144 square inches (929 square centimeters) or greater. Under DC 7804, the following ratings apply: 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. For purposes of rating scars, an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note (1). In addition, under DC 7800, separate/and or higher ratings are warranted for scarring that involves the head, face, or neck with at least one character of disfigurement. A March 2017 VA examination noted that the Veteran had painful scars of the right wrist (dorsal 5th finger and 5th metacarpal region, right wrist, palmar aspect of the 5th finger, and ulnar palm) and surgical scar of the palmar side of the proximal crease of the right hand. The Veteran reported that he experienced pain and limitations of the right hand at the ring and pinkie finger with rotational deformity and adduction of the right pinkie and abduction of the fourth finger. The pain was constant and affected his activities of daily life. The examiner counted five scars in total with four linear scars on the right hand at the 5th small finger and hand/wrist and one that was superficial non-linear on the dorsal aspect of the 5th finger of the right hand. These scars did not affect an area of at least 144 square inches (929 square centimeters) or greater. The superficial non-linear scar was the only scar that was painful to palpation and with active and passive range of motion to the hand and fingers. The examiner additionally noted that the scars adhesed to the point where the Veteran lost range of motion. There were also marked adhesions to the scars with small finger rotation deformity, limiting range of motion and grip to the hand. During the Veteran's December 2020 Board hearing, he testified that he has five painful scars on his hand and wrist for which he should be evaluated at 30 percent. He also contended at his hearing that his scars limit the function of his right hand and wrist and warrant a separate rating. Specifically, he experienced phantom pains, wrist, and hand pain, and was unable to make a fist. As the Veteran indicated during his December 2020 Board hearing that his five scars are painful, an increased disability rating under DC 7804 is warranted, and he meets the criteria for a 30 percent increased evaluation for painful scars of the right wrist (dorsal 5th finger and 5th metacarpal region, right wrist, palmar aspect of the 5th finger, and ulnar palm). This is the maximum schedular rating under DC 7804. Consistent with VA's duty to maximize benefits, the Board has considered all possible schedular bases for separate disability ratings, as well as secondary service connection, before considering whether an extraschedular rating is warranted to address symptoms not contemplated by the applicable diagnostic code. Morgan v. Wilkie, 31 Vet. App. 162, 167 (2018); Bailey v. Wilkie, 33 Vet. App. 188 (2021) (holding that separate ratings may be assigned and a formal claim for secondary service connection is not required if it is raised during evaluation of a disability). As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate disability picture. Id. at 115. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms, i.e., marked interference with employment and frequent hospitalization. If the disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. Given the Veteran's reported scar symptomatology, to include the limitation of function of his hand and wrist, his inability to make a fist, and loss of grip due to small finger deformity, the Board has considered the question of entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). In determining whether a veteran's symptomatology is adequately contemplated by the rating schedule, the Court has provided some guiding principles as to how to recognize whether symptomatology is exceptional under 38 C.F.R. § 3.321(b)(1). First, symptomology is exceptional only when it is of such nature or severity that conventional rating tools are not adequate to evaluate it properly. Second, the initial step in determining whether symptomatology is adequately contemplated by the rating schedule focuses solely on the functional impairments/symptoms of the disability at issue (as opposed to the functional effects of those impairments/symptoms). Third, if a symptom/impairment is not at all compensable under the rating schedule, then it does not warrant extraschedular consideration. Also, extraschedular consideration is not warranted for any symptom/impairment that clearly lacks a relationship to service or a service-connected disability. Long v. Wilkie, 33 Vet. App. 167 (2019). Here, the record does not establish that the rating criteria are inadequate for rating the Veteran's painful scars of the right hand and wrist. Specifically, his symptoms of limitation of function, inability to make a fist, and loss of grip due to small finger deformity are contemplated by the rating schedule as the Veteran is already compensated for those symptoms under DCs 5156 and DC 5223 for right status post amputation right little finger and fifth metacarpal fracture right little finger and right ring finger, respectively. Cf. Doucette v. Shulkin, 28 Vet. App. 366, 371-72 (2017) (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which is contemplated by the schedular rating criteria for hearing loss). In regard to DC 5156, the Veteran described loss of grip due to small finger deformity during his March 2017 VA examination. As the Veteran's small finger was amputated subsequent to that examination, and the Veteran is now compensated for that amputation under DC 5156, further consideration of this symptom and whether it is adequately contemplated by the rating schedule is moot. Moreover, for all musculoskeletal disabilities, to include the Veteran's fifth metacarpal fracture right little finger and right ring finger, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40. For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing and weight bearing. 38 C.F.R. §§ 4.45, 4.59. The schedular criteria for musculoskeletal disabilities, therefore, contemplate a wide variety of manifestations of functional loss, and the Veteran, in describing symptoms of functional loss and inability to make a fist, has not demonstrated any symptomatology that falls outside the scope of the applicable criteria. Cf. Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018) (given the broad nature of the criteria for rating neurologic disorders, finding symptoms not contemplated by the criteria "presents quite a challenge"). As the symptoms are contemplated by the criteria, the Board need not determine whether they cause marked interference with employment or frequent hospitalization, and a remand for referral for extraschedular consideration is not warranted because the Veteran's painful scar symptoms of the right wrist are contemplated by the rating schedule. REASONS FOR REMAND As noted in the introduction, entitlement to a TDIU has been raised as part and parcel of the claim for an increased disability rating for painful scars of the right wrist (dorsal 5th finger and 5th metacarpal region, right wrist, palmar aspect of the 5th finger, and ulnar palm). Rice, 22 Vet. App. at 453. Specifically, the Veteran testified during his December 2020 hearing that his scar disability would keep him from working at a job that he would be qualified at with his education and employment history. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Currently, the Veteran is in receipt of service connection for painful scars of the right wrist (dorsal 5th finger and 5th metacarpal region, right wrist, palmar aspect of the 5th finger, and ulnar palm), now rated 30 percent disabling; right status post amputation right little finger, rated 20 percent disabling; fifth metacarpal fracture right little finger and right ring finger, rated 10 percent disabling; tinnitus, rated 10 percent disabling; and noncompensable surgical scars and left ear hearing loss. The Veteran's combined disability rating is 30 percent from October 15, 2012, 40 percent from February 2, 2017, and 50 percent from September 22, 2017, and none of the exceptions in 38 C.F.R. § 4.16(a)(1)-(5) (disabilities of extremities, common etiology, single body system, incurred in action, or prisoner of war) are for application. Thus, the Veteran does not meet the schedular criteria in 38 C.F.R. § 4.16(a). Even where a Veteran does not meet the schedular criteria of 38 C.F.R. § 4.16(a), VA must consider whether TDIU is warranted on an extraschedular basis under 38 C.F.R. § 4.16(b). However, the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance, but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Although the holding of Bowling has been questioned, see Wages v. McDonald, 27 Vet. App. 233, 239-240 (2015) (Kasold, C.J., concurring) ("The Bowling holding was rendered with little analysis of 38 C.F.R. § 4.16(b) or its interplay with the statutory scheme for adjudicating claims, which requires decisions of an agency of original jurisdiction to be appealed to the Board and final decisions to be rendered by the Board, see 38 U.S.C. §§ 7104 and 7105. Frankly, Bowling appears to be wrongly decided"), the Court recently declined to address whether it should be overruled. See Stafford v.Wilkie, No. 18-4520 (Vet. App. Apr. 15, 2020) (nonprecedential panel Order) (dismissing the appeal as moot) and id., slip op.at 2 (Greenberg, J., dissenting) ("What evil lurks behind the Court deciding whether Bowling v. Principi, 15 Vet. App. 1 (2001) remains good law?"). The initial extraschedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a Veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). The medical and lay evidence here reflect that there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities. Consequently, if, after implementing the Board's decision the Veteran does not meet the schedular criteria under 38C.F.R. §4.16(a), the issue of entitlement to a TDIU should be referred to the Director of Compensation for consideration under 38 C.F.R. § 4.16(b). Accordingly, the matter is REMANDED for the following action: After implementing the Board's decision, develop and adjudicate the issue of entitlement to a TDIU. If, after implementing the Board's decision, the Veteran does not meet the schedular criteria, refer the issue of entitlement to TDIU to the Director of Compensation Service for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, Associate 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.