Citation Nr: A22020249
Decision Date: 10/04/22	Archive Date: 10/04/22

DOCKET NO. 220811-267994
DATE: October 4, 2022

ORDER

Entitlement to an effective date earlier than July 1, 2021, for a painful right-hand scar is denied.

Entitlement to a disability rating in excess of 10 percent for tinnitus is denied.

Entitlement to a disability rating in excess of 10 percent for a right-hand shell fragment wound is denied.

Entitlement to an initial disability rating in excess of 10 percent for painful right hand scarring is denied.

Entitlement to an initial disability rating of 50 percent for posttraumatic stress disorder (PTSD) is granted.

Entitlement to an initial disability rating in excess of 50 percent for PTSD is denied.

Entitlement to a disability rating in excess of 10 percent, from March 1, 2019 to July 1, 2021, for coronary artery disease (CAD) is denied.

Entitlement to a disability rating in excess of 30 percent, as of July 1, 2021, for CAD is denied.

Entitlement to an effective date of July 22, 2019, for the grant of a total disability rating based on individual unemployability (TDIU) is granted.

Entitlement to an effective date of July 22, 2019, for the grant of eligibility for Dependents' Educational Assistance (DEA) under 38 U.S.C. chapter 35 is granted.

REMANDED

Entitlement to an effective date earlier than July 22, 2019, for the grant of a TDIU, to include on an extraschedular basis, is remanded.

Entitlement to an effective date earlier than July 22, 2019, for the grant of eligibility for DEA under 38 U.S.C. chapter 35 is remanded.

FINDINGS OF FACT

1. The Veteran's July 2021 claim for an increased rating for service-connected right-hand shell fragment wound resulted in service-connection for the painful right-hand scar, and the evidence of record does not support that the Veteran first became entitled to service-connection for the painful right-hand scar during the one year lookback period.

2. The Veteran's service-connected bilateral tinnitus is assigned a 10 percent rating, the maximum rating authorized under Diagnostic Code 6260.

3. The Veteran is in receipt of the maximum schedular rating assignable for limitation of motion of the right middle finger.

4. The Veteran's right-hand scarring has manifested, at most, as a painful and tender scar.

5. The Veteran's PTSD is reasonably shown to have been productive of occupational and social impairment with reduced reliability and productivity.

6. The Veteran's PTSD is not shown to have been productive of occupational and social impairment with deficiencies in most areas.

7. From March 1, 2019 to July 1, 2021, the Veteran's workload was not less than 7 METs and there was no cardiac hypertrophy, chronic congestive heart failure in the past year, or left ventricular dysfunction with an ejection fraction of 50 percent or less.

8. As of July 1, 2021, the Veteran's workload was not less than 5 METs and the left ventricular ejection fraction was not less than 50 percent.

9. The most probative evidence reflects that the Veteran has been unable to secure or follow a substantially gainful occupation as a result of the symptoms related to his service-connected disabilities since July 22, 2019.

10. As of July 22, 2019, the Veteran had a permanent and total disability rating.

CONCLUSIONS OF LAW

1. The criteria for an effective date earlier than July 1, 2021, for the grant of service connection for a painful right-hand scar have not been met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400.

2. The criteria to establish a disability rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.87, Diagnostic Code 6260.

3. The criteria to establish a disability rating in excess of 10 percent for a right hand shell fragment wound have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5309-5229.

4. The criteria to establish an initial disability rating in excess of 10 percent for right-hand scarring have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.118, Diagnostic Code 7804.

5. The criteria to establish an initial disability rating of 50 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9411.

6. The criteria to establish an initial disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9411.

7. The criteria to establish a disability rating in excess of 10 percent, from March 1, 2019, to July 1, 2021, for CAD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.104, Diagnostic Code 7005.

8. The criteria to establish a disability rating in excess of 30 percent, as of July 1, 2021, for CAD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.104, Diagnostic Code 7005.

9. The criteria to establish an earlier effective date of July 22, 2019, for the grant of a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(b).

10. The criteria to establish an earlier effective date of July 22, 2019, for the grant of eligibility for DEA under 38 U.S.C. § 35 have been met. 38 U.S.C. §§ 3510, 5110, 5113; 38 C.F.R. §§ 3.807, 21.3021.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1967 to February 1970.

The rating decision on appeal was issued in December 2021. In August 2022, the Veteran elected the modernized review system. 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2(d)).  

The Veteran elected the Evidence Submission lane when submitting the August 2022 election form. In August 2022, the Veteran submitted a vocational assessment. Accordingly, the Board will consider this evidence, as well as evidence of record as of the December 2021 rating decision.  

Effective Date

Generally, the effective date for an award of service connection and disability compensation, based on an original claim, is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the effective date will be the date of receipt of claim, or date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

A "claim" is defined in the VA regulations as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." It must "identify the benefit sought." 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims, both formal and informal, for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).

Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or a person acting as next friend of the claimant who is not sui juris, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). 

In Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009), the Court has held that an informal claim must be (1) a communication in writing that (2) expresses an intent to apply for benefits, and (3) identifies the benefits sought. See also Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate original claim for benefits, "the claimant must submit a written document identifying the benefit and expressing some intent to seek it").

Of note, 38 C.F.R. § 3.157, pertaining to what constitutes an informal claim, has been deleted from the most recent iteration of the CFR as VA no longer accepts informal claims. However, it was in effect at the time the Veteran filed his claim for entitlement to service connection for a lumbar spine disability and entitlement to service connection for a right hip joint disability and is therefore discussed herein.

To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). The Court has held that the failure to consider evidence which may be construed as an earlier application or claim, formal or informal, that would have entitled the claimant to an earlier effective date is remandable error. Lalonde v. West, 7 Vet. App. 537, 380 (1999); see also 38 U.S.C. § 7104(a); Servello. The Court has held, however, that the Board is not required to "conjure up issues that were not raised by the appellant." Brannon v. West, 12 Vet. App. 32 (1998).

1. Entitlement to an effective date earlier than July 1, 2021, for a painful right-hand scar

The Veteran and his attorney maintain that he is entitled to an effective date prior to July 1, 2021, for the grant of service connection for a painful right-hand scar. The Veteran did not provide what they believed the effective date should be, but the Board believes that the Veteran wishes to obtain an effective of September 4, 2018, the date he initiated other increased rating claims on appeal. The Board notes that this disability originated from a July 2021 filing for an increased rating claim for his right-hand shell fragment wound, which has been service-connected since he separated from active-duty service.

The Board has carefully reviewed all of the evidence of record but finds that the assignment of an effective date prior to July 1, 2021, is not warranted for the grant of service connection for a painful right-hand scar.

There is no indication that the Veteran filed a claim for entitlement to service connection for a painful right-hand scar, either formally or informally, prior to a formal claim received on July 1, 2021. As no claim for service connection was received prior to this date, there is no basis for assignment of an effective date prior to July 1, 2021. See 38 C.F.R. § 3.400(r). To the extent that the claim stems from a July 1, 2021 increased rating claim for the already service-connected right hand shell fragment wound, the evidence does not reflect that the scarring first became painful during the one-year lookback period from July 1, 2020 to July 1, 2021. 38 C.F.R. § 3.400(o).

The Board is sympathetic to the Veteran's claim. Unfortunately, the Board is ultimately bound by the law passed by Congress, and this decision is dictated by the relevant statutes and regulations. The Board is without authority to grant benefits simply because it might perceive the result to be equitable. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). As discussed, the primary requirement for the assignment of an effective date is the receipt of a claim by VA.

Increased Ratings

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). This practice is known as staged ratings. Id.

When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45. As required by 38 C.F.R. § 4.59, joints should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing, and if possible, with the range of opposite undamaged joint. Correia v. MacDonald, 28 Vet. App. 158 (2016).

The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59.

If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the persuasive weight of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

2. Entitlement to a disability rating in excess of 10 percent for tinnitus

The Veteran and his attorney assert that the Veteran is entitled to a rating in excess of 10 percent for tinnitus, to include a separate compensable evaluation for each ear. The Veteran's service-connected tinnitus is currently rated under 38 C.F.R. § 4.87, Diagnostic Code 6260.

Under Diagnostic Code 6260, only a single 10 percent rating is warranted for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. This is the maximum schedular rating assignable for tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note (2); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).

Although the Veteran argues that he is entitled to a rating in excess of 10 percent for tinnitus, Diagnostic Code 6260 precludes an evaluation in excess of a single 10 percent schedular rating for tinnitus. 

As there is no legal basis upon which to award an increase, to include a separate schedular rating for tinnitus in each ear, the claim for an increased rating must be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994).

3. Entitlement to a disability rating in excess of 10 percent for a right-hand shell fragment wound

The Veteran and his attorney contend that the service-connected right-hand shell fragment wound warrants a rating in excess of 10 percent.

The Veteran was granted service connection for a right-hand shell fragment wound effective from February 10, 1970, the day after his separation from active-duty service. This disability has been rated as 10 percent disabling since June 22, 2007. The Veteran filed the present increased rating claim in July 2021.

The Veteran's right-hand shell fragment wound disability is currently evaluated under hyphenated Diagnostic Code 5309-5229. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. 

Under Diagnostic Code 5309, Muscle Group IX consists of the intrinsic muscles of hand, the thenar eminence, short flexor, opponens, abductor and adductor of the thumb, the hypothenar eminence, and the short flexor, opponens and abductor of the little finger. The forearm muscles act in strong grasping movements and are supplemented by the intrinsic muscles in delicate manipulative movements. The hand is so compact a structure that isolated muscle injuries are rare, being nearly always complicated with injuries of bones, joints, tendons, etc. Thus, injury to muscle group IX should be rated on limitation of motion, with a minimum 10 percent assigned. 38 C.F.R. § 4.73, Diagnostic Code 5309.

Diagnostic Code 5229 sets forth the rating criteria for limitation of motion of the index and long finger. Under Diagnostic Code 5229, a noncompensable disability evaluation is assigned for limitation of motion of the index or long finger with a gap of less than one inch (2.5 centimeters) between the fingertip and the proximal transverse crease of the palm with the finger flexed or with extension limited by no more than 30 degrees. A maximum 10 percent disability evaluation is assigned where there is limitation of motion of the index or long finger with a gap of one inch (2.5 cm) or more between the fingertip and the proximal transverse crease of the palm with the finger flexed or with extension limited by more than 30 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5229.

The Veteran was afforded an examination in August 2021. The Veteran reported that he had worsening pain in his right hand located at the third metacarpal and middle finger, which affected his ability to function, to grasp items, use tools, and typing. Upon examination, there was objective evidence of pain. Extension of the right index finger DIP, PIP and MCP joints were normal (0 degrees and finger aligned with hand). Flexion of the right index finger MCP joint was limited to 80 degrees (normal is 90 degrees), flexion of the PIP joint was limited to 90 degrees (normal is 100 degrees), and flexion of the DIP joint was limited to 60 degrees (normal is 70 degrees).  Extension of the right long finger MCP was abnormal at 20 degrees (normal is 0 degrees), extension of the PIP joint was abnormal at 20 degrees (normal is 0 degrees), and extension of the DIP joint was abnormal at 10 degrees (normal is 0 degrees). Flexion of the right long finger MCP joint was limited to 40 degrees (normal is 90 degrees), flexion of the PIP joint was limited to 50 degrees (normal is 100 degrees), and flexion of the DIP joint was limited to 30 degrees (normal is 70 degrees). Extension of the right ring finger DIP, PIP and MCP joints were normal (0 degrees and finger aligned with hand). Flexion of the right ring finger MCP joint was limited to 80 degrees (normal is 90 degrees), flexion of the PIP joint was limited to 90 degrees (normal is 100 degrees), and flexion of the DIP joint was limited to 60 degrees (normal is 70 degrees). Extension of the right little finger DIP, PIP and MCP joints were normal (0 degrees and finger aligned with hand). Flexion of the right little finger MCP joint was limited to 80 degrees (normal is 90 degrees), flexion of the PIP joint was limited to 90 degrees (normal is 100 degrees), and flexion of the DIP joint was limited to 60 degrees (normal is 70 degrees). Extension of the right thumb IP and MCP joints were normal (0 degrees and finger aligned with hand). Flexion of the right thumb MCP joint was normal at 100 degrees, and flexion of the IP joint was normal at 90 degrees). There was a noted gap between the pad of the thumb and the fingers of 3 cm. There was also a gap between the long finger and the proximal transverse crease of the hand on maximal finger flexion were at 6 cm for the index finger and 20 cm for the long finger. 

On examination, there was objective evidence of pain on palpation of the 3rd metacarpal joint, noting severe pain. The examiner noted that the Veteran's long finger exhibited pain. On passive range of motion, flexion and extension remained the same. There was evidence of pain on weight-bearing, nonweight-bearing, active motion, passive motion, and on rest. After observed repetitive use, the Veteran's range of motion remained the same as during initial motion. The examiner added that the procured evidence does not suggest that pain, fatigability, weakness, lack of endurance, or incoordination significantly limits functional ability with repeated use over time. No flare-ups were reported on examination. No evidence of ankylosis was found. The examiner noted that the Veteran constantly uses a brace for his right hand. The examiner noted that X-ray imaging from 2014 revealed a shell fragment in the 3rd metacarpal. The examiner noted that the Veteran's right-hand disability resulted in a functional impact, noting that he has problems gripping, using tools, lifting items, and carrying items. The Veteran's left hand was also tested in the examination.

The Board concludes the evidence is against an increased rating in excess of 10 percent for the Veteran's a right-hand shell fragment wound.

The Veteran is currently in receipt of the maximum 10 percent rating for the service-connected right-hand shell fragment wound, and at the August 2021 VA examination, his right index and right long fingers both had gaps of more than one inch (2.5 centimeters) between the fingertip and the proximal transverse crease of the palm, with the fingers fully flexed. A rating higher than 10 percent is not warranted because a 10 percent rating is the highest available rating under Diagnostic Code 5229. See 38 C.F.R. § 4.71a, Diagnostic Code 5229.

Additionally, the current 10 percent evaluation contemplates pain on motion and is consistent with limitations of motion of the index and long fingers with a gap of one inch (2.5 cm) or more between the fingertip and the proximal transverse crease of the palm with the fingers flexed.

Finally, if there is limitation of motion of two or more digits, each digit is evaluated separately, and the evaluations are combined. See 38 C.F.R. § 4.71a, Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand, Note (5). Thus, because the hand allows multiple digits to be combined into a single diagnostic code, it is necessary to include all possible higher digit combination criteria. However, there has been no ankylosis noted in the Veteran's right hand, and the Veteran has not had any fingers amputated, as would be required under any other higher digit combination criteria. 

For these reasons, the Veteran's service-connected right-hand shell fragment wound does not warrant a rating in excess of 10 percent. The Veteran is in receipt of the maximum rating under Diagnostic Code 5229. The provisions of 38 C.F.R. §§ 4.40 and 4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flareups have been considered and are not warranted. Entitlement to an increased rating for the Veteran's right-hand shell fragment wound is denied.

4. Entitlement to an initial disability rating in excess of 10 percent for a painful right-hand scar

The October 2021 rating decision granted service connection for a painful right hand scar and assigned a 10 percent rating, effective July 1, 2021. The rating was assigned under Diagnostic Code 7804. The Board also notes that the Veteran's right-hand scar has a separate rating with a noncompensable disability rating effective from June 22, 2007, under Diagnostic Code 7802. 

Scars are evaluated under Diagnostic Codes 7800 through 7805.

Diagnostic Code 7800 contemplates scars of the head, face, or neck. 38 C.F.R. § 4.118, Diagnostic Code 7800. Under Diagnostic Code 7800, a 30 percent disability rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or two or three of the characteristics of disfigurement. A 50 percent disability rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or four or five characteristics of disfigurement. An 80 percent disability rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or six or more characteristics of disfigurement. 38 C.F.R. § 4.118.

The eight characteristics of disfigurement for the purposes of rating under 38 C.F.R. § 4.118  are: scar of 5 in. or more (13 or more centimeters (cm.)) in length; scar at least 1/4 in. (0.6 cm.) wide at its widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding 6 sq. in. (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 sq. in. (39 sq. cm.); underlying soft tissue missing in an area exceeding 6 sq. in. (39 sq. cm.); and skin indurated and inflexible in an area exceeding 6 sq. in. (39 sq. cm.). Id., Note (1).

Diagnostic Code 7801 contemplates 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. 38 C.F.R. § 4.118, Diagnostic Code 7801. The criteria provides that a 10 percent rating is awarded when the area of the scar(s) covers at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). A 20 percent rating is warranted when the area of the scar(s) covers at least 12 square inches (77 square centimeters) but less than 72 square inches (456 square centimeters). A 30 percent rating is warranted when the area of the scar(s) covers at least 72 square inches (456 square centimeters) but less than 144 square inches (929 square centimeters). A 40 percent rating is assigned when the area of the scar(s) covers at least 144 square inches (929 square centimeters) or greater. 

Diagnostic Code 7802 provides that a 10 percent disability rating is warranted when the area of the scar covers 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802.

Diagnostic Code 7803 was repealed in the August 2018 amendment and has not been replaced.

Diagnostic Code 7804 provides disability ratings for scars that are unstable or painful. 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. A 30 percent rating is warranted for five or more scars that are unstable or painful. Note (1) states 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, an additional 10 percent should be added to the evaluation based on the total number of unstable or painful scars. Note (3) states that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this Diagnostic Code, when applicable. 38 C.F.R. § 4.118, Diagnostic Code 7804.

Diagnostic Code 7805 provides that other scars and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 under an appropriate Diagnostic Code. 38 C.F.R. § 4.118, Diagnostic Code 7805.

The Veteran was afforded a VA examination for his right-hand scar in August 2021. The Veteran reported that he his scar was tender. The examiner noted that the Veteran had a painful scar in his right hand that was tender to touch. The scar was located on the right-hand dorsum and measured 1 centimeter by 0.2 centimeter, with a tota area of 0.2 centimeters squared. There was no limitation of function noted.

Upon review, the Board finds that a rating in excess of 10 percent is not warranted under Diagnostic Code 7804 for the Veteran's right-hand scar throughout the relevant appeal period. Additionally, the Board also finds that a compensable rating is not warranted under Diagnostic Code 7802 for the Veteran's right-hand scar.

Initially, the Board finds that additional separate ratings are not warranted under Diagnostic Codes 7800, 7801, or 7805. 

Diagnostic Code 7800 is not applicable, as it relates to scars or disfigurement of the head, face, or neck. 

A rating is also not warranted under Diagnostic Code 7801, as under this code a 10 percent rating requires an area affected of greater size than affected by the Veteran's right-hand scar.

As Diagnostic Code 7805 instructs to "[e]valuate any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate Diagnostic Code." The Board finds that the evidence did not indicate any disabling effect(s) that would not be considered in a rating provided under Diagnostic Codes 7800-7804 and, as such, a rating under Diagnostic 7805 is not warranted.

A compensable rating is not warranted under Diagnostic Code 7802, as the Veteran's scar does not measure at least 144 square inches (929 square centimeters) or greater.

As outlined, under Diagnostic Code 7804, a 20 percent rating is warranted for three or four scars that are unstable or painful. The evidence of record did not indicate that the Veteran's right-hand scar included more than one painful scar. As such, there is no basis to award a higher rating under Diagnostic Code 7804.

In sum, the Board finds that Veteran was not shown to have more than one painful service-connected right-hand scar. As such, the Board concludes that the criteria for a rating in excess of 10 percent for a right-hand scar under Diagnostic Code 7804 were not met and, to this extent, the Veteran's claim is denied. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7804.

5. Entitlement to an initial disability rating for PTSD in excess of 30 percent prior to July 1, 2021, and in excess of 50 percent thereafter

Prior to July 1, 2021, the Veteran has a 30 percent disability rating for PTSD, and a 50 percent disability rating thereafter, which are rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran asserts that he is entitled to a disability rating of at least 50 percent for his PTSD. 

Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).

A 50 percent evaluation is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; the Veteran's difficulty in establishing and maintaining effective work and social relationships. 

A 70 percent disability rating requires occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals, which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); or inability to establish and maintain effective relationships. 

A 100 percent disability rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation as to time or place; or demonstrated memory loss for names of close relatives, own occupation, or own name. Id. 

The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed and other symptoms and contemplates the effect of those symptoms on the Veteran's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board acknowledges that symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Id., at 442. In adjudicating a claim for a higher rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id., at 443.

The Veteran was evaluated for his PTSD symptoms by a VA examiner in September 2019. During that examination, the Veteran was diagnosed with PTSD. Based on this evaluation, the Veteran was initially rated at 30 percent, according to the September 2019 rating decision. 

During the September 2019 VA examination, the examiner determined that the Veteran's PTSD resulted in an occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Veteran reported symptoms such as chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; and impaired abstract thinking. The examiner noted that the Veteran had additional symptoms including intrusive distressing memories; bad dreams; avoiding conversations about his military experiences due to "guilt, shame, and regret"; blaming supervisors and fellow soldiers "for unnecessary killing"; thrill seeking (motorcycle racing on streets and reckless driving, surfing big waves); being hypervigilant; and checking windows and doors three times prior to going to bed. 

The Veteran had another VA examination in August 2021. The examiner diagnosed the Veteran with PTSD. The examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran's symptoms included anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impairment of short- and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks; and inability to establish and maintain effective relationships.

The Board finds that the VA examinations in the record are probative and should be considered competent evidence of record.

The Board also finds there is sufficient evidence in support of a finding that the Veteran's disability picture for PTSD more nearly approximates an occupational and social impairment with reduced reliability and productivity, notably due to his impaired abstract thought, memory loss, and difficulty establishing and maintaining relationships. The Veteran's occupational and social impairment is, therefore, found to be consistent with a 50 percent disability rating for the entire rating period on appeal.

However, the Board finds that the persuasive weight of the evidence is against a finding that the Veteran's PTSD symptoms more nearly approximate occupational and social impairment, with deficiencies in most areas.

There is no evidence of record that the Veteran suffered from symptoms such as suicidal ideation; obsessional rituals, which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; or difficulty in adapting to stressful circumstances (including work or a work-like setting). 38 C.F.R. § 4.130. Moreover, the Veteran has not contended on appeal that he suffers from such symptoms. 

Additionally, in a lay statement provided by the Veteran in August 2022, he noted that he sought a 50 percent disability rating for his PTSD for the entire period on appeal. 

Accordingly, for all the foregoing reasons, the Board finds that the Veteran is entitled to an initial rating of 50 percent, but no greater, for his PTSD. 38 U.S.C. § 5107.

6. Entitlement to a disability rating in excess of 10 percent, from March 1, 2019 to July 1, 2021, and excess of 30 percent thereafter, for CAD

Prior to July 1, 2021, the Veteran had a 10 percent disability rating for CAD, and a 30 percent disability rating thereafter, which are rated under 38 C.F.R. § 4.104, Diagnostic Code 7005. The Veteran asserts that he is entitled to a higher disability rating.

Under Diagnostic Code 7005, a 10 percent evaluation is warranted where there is a workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness or syncope; or, continuous medication required. A 30 percent evaluation is warranted where there is a workload of greater than 5 METs but not greater than 7 METs, where there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent evaluation is warranted where there is evidence of more than one episode of acute congestive heart failure in the past year; or, workload of greater than 3 METs but not greater than 5 METs, resulting in dyspnea, fatigue, angina, dizziness or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Finally, a 100 percent evaluation is deemed warranted where there is chronic congestive heart failure; or workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness or syncope; or, left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005.

One MET (metabolic equivalent) is defined as the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation and a laboratory determination cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note (2).

During the period on appeal, the Veteran was afforded two VA examinations in April 2019 and August 2021. 

During the April 2019 VA heart examination, and the examiner indicated continuous medication was required to control the Veteran's heart condition. The Veteran had a myocardial infarction in November 2018, which resulted in an angioplasty. The Veteran had not had congestive heart failure, a heart valve condition, infection heart conditions, or pericardial adhesions. Diagnostic testing found that there was no evidence of cardiac hypertrophy. No stress test was conducted. An April 2019 echocardiogram revealed an arrythmia, a left ventricular ejection fraction of about 65 percent, and a contemporaneous interview-based METS test revealed a METs level of 7 to 10 METs, due to fatigue. 

During the August 2021 VA heart examination, the examiner indicated continuous medication was required to control the Veteran's heart condition. The Veteran had a myocardial infarction in November 2018, which resulted in an angioplasty. The Veteran had not had congestive heart failure, a heart valve condition, infection heart conditions, or pericardial adhesions. Diagnostic testing found that there was no evidence of cardiac hypertrophy. No stress test was conducted. An August 2021 echocardiogram revealed a left ventricular ejection fraction of 60 percent, and a contemporaneous interview-based METS test revealed a METs level of 5 to 7 METs, due to dyspnea, fatigue, angina, and dizziness. The examiner noted that the Veteran's CAD resulted in functional impairment, explaining that the Veteran had worsening symptoms, including fatigue, shortness of breath, dizziness and chest pain with activity, and the Veteran is limited to moderate activity based on his METs.

The Veteran received an echocardiogram in June 2021, and the cardiologist estimated that left ventricular ejection fraction was at a normal range and revealed a METs level of 7 due to fatigue.

Based on the foregoing, the Board finds that the evidence from April 2019 and June 2021, to include echocardiograms documenting a left ventricular ejection fraction of 65 percent and a METs level between 7 and 10, are highly probative. Therefore, a disability rating in excess of 10 percent from March 1, 2019, to July 1, 2021, is not warranted under Diagnostic Code 7005. The clinical evidence does not show that the assignment of a rating in excess of 10 percent is warranted prior to July 1, 2021. There is no evidence of congestive heart failure or a workload of less than 7 METs that resulted in dyspnea, fatigue, angina, dizziness, or syncope. There is also no evidence of left ventricular dysfunction with an ejection fraction of less than 50 percent.

Beginning July 1, 2021, the Board finds the medical evidence highly probative of the Veteran's symptoms and concludes that the current rating of 30 percent is justified based on the Veteran's METs level between 5 and 7. A higher evaluation for this period is not warranted because there is no evidence that the Veteran's workload was less than 5 METs; nor is there evidence of congestive heart failure in the past year, or left ventricular dysfunction with an ejection fraction of 50 percent or less. 

Accordingly, the Board finds that a rating in excess of 10 percent from March 1, 2019 to July 1, 2021, and in excess of 30 percent thereafter, is not warranted.

7. Entitlement to an effective date earlier than July 1, 2021, for the grant of a TDIU

Based on the rating increase granted for the Veteran's service-connected PTSD, the Veteran now meets the schedular criteria for a TDIU as of July 22, 2019, with a combined disability rating of 70 percent.

The evidence reflects that the Veteran was last employed full-time in June 2014 as a schoolteacher. The Veteran asserted that his employment ended due to the impact of his service-connected PTSD, right-hand shell fragment wound, tinnitus, CAD, bilateral hearing loss, and right-hand scar. 

The September 2019 VA psychiatric examination opined that the Veteran's PTSD resulted in an occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Veteran's PTSD symptoms included chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; and impaired abstract thinking. 

The August 2021 VA psychiatric examiner opined that the Veteran's PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran's PTSD symptoms included anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impairment of short and long term memory, for example, retention of only highly learned material, while forgetting to complete tasks; and inability to establish and maintain effective relationships.

During the August 2021 VA hand examination, the examiner noted that the Veteran's right-hand disability resulted in a functional impact, noting that he has problems gripping, using tools, lifting items, and carrying items. 

During the August 2021 VA heart examination, the examiner noted that the Veteran's CAD resulted in functional impairment, explaining that the Veteran had worsening symptoms, including fatigue, shortness of breath, dizziness and chest pain with activity, and the Veteran is limited to moderate activity based on his METs.

During the September 2021 VA hearing loss and tinnitus examination, the examiner noted that the Veteran's hearing loss resulted in functional impairment, explaining that soft voices are difficult to hear, and the Veteran has to look at people in order to understand them. The examiner also noted that the Veteran's tinnitus resulted in functional impairment, explaining that his tinnitus was very annoying.

The Veteran submitted a vocational assessment dated August 2022. The vocational assessment noted review of the entire claims file and medical history. After a thorough summary of the medical evidence of record, the vocational counselor opined that it was more likely than not that the Veteran's had been unable to secure and follow any substantially gainful employment, to include unskilled sedentary employment due to his service-connected PTSD, CAD, and right-hand shell fragment wound since at least July 2019. 

Therefore, based on all of the foregoing, the Board will resolve reasonable doubt in the Veteran's favor and award entitlement to TDIU from July 22, 2019, to July 1, 2021. The Veteran has submitted credible evidence that he is unable to remain employed due to his service-connected disabilities. The Board also finds the August 2022 vocational rehabilitation study highly probative in evaluating the Veteran's claim. In this regard, the specialist provided a thorough rationale on the Veteran's inability to obtain substantially gainful employment due to his PTSD, CAD, and right-hand shell fragment wound since at least July 2019. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that entitlement to a TDIU is warranted, and that it is warranted from July 22, 2019, to July 1, 2021. 38 U.S.C. § 5107(b).

8. Entitlement to an effective date of July 1, 2021, for the grant of eligibility for Dependents' Educational Assistance (DEA) under 38 U.S.C. § 35

The effective date assigned for eligibility for DEA benefits (July 1, 2021) was based on the Veteran's award of TDIU from that date to the present. As discussed above, the Board has concluded that the criteria for TDIU have been met for the entirety of the appeal period under consideration, which is from July 22, 2019 to the present. As such, the criteria for eligibility for DEA benefits have also been met as of July 22, 2019. The question of an effective date prior to July 1, 2021 is addressed in the remand section below.

REASONS FOR REMAND

1. Entitlement to an effective date earlier than July 22, 2019, for the grant of a TDIU, to include on an extraschedular basis, is remanded.

2. Entitlement to an effective date earlier than July 22, 2019, for the grant of eligibility for DEA under 38 U.S.C. § 35 is remanded.

Regarding an earlier effective date for assignment of a TDIU on an extraschedular basis, the Veteran has asserted that he was unable to work as a result of his service connected disabilities prior to July 22, 2019. The Board notes that prior to July 22, 2019, the Veteran has not met the schedular criteria for assignment of a TDIU. 

A TDIU may be granted alternatively on an extraschedular basis under § 4.16(b) if it is established that the Veteran is indeed unemployable on account of his service connected disabilities.

The Board is precluded from granting a TDIU on an extraschedular basis in the first instance, and must refer the matter to the Director of Compensation Service for the initial adjudication. If, and only if, the Director of Compensation Service, or their designee determines that an extraschedular TDIU is not warranted does the Board then have jurisdiction to decide the issue on its merits. 38 C.F.R. § 4.16(b); Barringer v. Peake, 22 Vet. App. 242 (2008). 

Here, the Board finds that there is evidence of record that suggests that the Veteran had difficulty obtaining and maintaining substantially gainful employment as a result of his service-connected disabilities prior to July 22, 2019. Further, the issue of entitlement to an effective date earlier than July 22, 2019, for a TDIU on an extraschedular basis has not been considered by the Director of Compensation Service. 

As such, the Board finds referral to the Director for TDIU initial adjudication under 38 C.F.R. § 4.16(b) to be warranted, and the AOJ erred when it did not refer the TDIU issue. 38 C.F.R. § 20.802(a). Likewise, the AOJ also erred when it denied Dependents' Educational Assistance under 38 U.S.C. § 35 prior to obtaining an opinion from the Director due to the effect the grant of a TDIU would have had on the DEA issue, and that issue must also be remanded.

 

The aforementioned matters are REMANDED for the following action:

Refer the case to the Director of Compensation Service for consideration of assignment of a TDIU prior to July 22, 2019, on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). 

 

 

E. BLOWERS

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. R. Montalvo, 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.