Citation Nr: 22012509 Decision Date: 03/04/22 Archive Date: 03/04/22 DOCKET NO. 14-20 710A DATE: March 4, 2022 ORDER A 10 percent rating, but no higher, for service-connected right palm scar, is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for recurrent urinary tract infections (UTIs) is remanded. FINDING OF FACT For the entire period on appeal, the Veteran has reported painful right palm scar that is not unstable or more than 929 centimeters square in area. CONCLUSION OF LAW The criteria for a 10 percent rating, but no higher, for service-connected right palm scar, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Codes (DCs) 7802, 7804, 7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1986 to September 2006. These claims are on appeal from an August 2013 rating decision. In a June 2019 decision, the Board denied an initial compensable rating for service-connected right palm scar and service connection for recurrent UTIs. The Veteran appealed the Board's June 2019 decision to the United States Court of Appeals for Veterans Claims (Court). The Court granted a Joint Motion for Remand (JMR) in August 2021 which vacated the Board's June 2019 decision and remanded those claims for further adjudication. Increased Rating Disability evaluations (ratings) are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 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 their residual disorders in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Entitlement to a compensable rating for service-connected right palm scar The Veteran claims that her service-connected right palm scar is painful and thus warrants a compensable rating. At the outset the Board notes that, to the extent that the Veteran's representative contends that the Veteran is entitled to an increased initial evaluation of her service-connected right palm scar (see May 2019 Appellate Brief), service connection for the right palm scar with an initial noncompensable rating was awarded in a February 2007 rating decision and the Veteran was notified of this decision in a July 2007 notification letter. However, the Veteran did not appeal the assigned initial rating or submit new and material evidence within one year of the July 2007 notification letter, and the February 2007 rating decision became final in July 2008. Thus, the issue on appeal is for an increased non-initial disability rating. Scars are rated under DCs 7800-7805. As the Veteran's service-connected scar is not to the head, neck, or face, and is less than 929 centimeters square in area, only DC 7804 and DC 7805 are relevant to the claim. DC 7804 provides compensation for scars that are painful or unstable. A 10 percent rating is provided for one or two scars that are unstable or painful. A 20 percent rating is provided for three or four scars that are unstable or painful. A 30 percent rating is provided for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, DC 7804. 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) states that if one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Note (3) states that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804, when applicable. 38 C.F.R. § 4.118. DC 7805 instructs that any disabling effect(s) not considered in a rating provided under DCs 7800-7804, should be rated under an appropriate diagnostic code. The VA amended the criteria for rating skin disabilities effective August 13, 2018. However, DCs 7804 and 7805 were not changed by these amendments. The changes to DCs 7800, 7801 and 7802 are not material to this appeal. The Veteran was afforded VA scar examinations in July 2013 and March 2019. The examiners both found the Veteran's service-connected right palm scar was well-healed, nontender, and asymptomatic. The examiners both noted the Veteran reported no residual complaints. The July 2013 examination report shows the Veteran reported right whole hand pain with grasping and typing, but the examiner remarked records indicate this pain was related to lymphedema secondary to a right mastectomy with axillary node dissection, and not caused by or related to the well-healed, asymptomatic right hand scar. The right hand scar was noted to be linear and 1.5 centimeters in length at the July 2013 VA examination. Similarly, the March 2019 VA examination found that the scar was 1.5 centimeters by 0.1 centimeters. The Board finds that a 10 percent rating, but no higher, for a painful right hand scar is warranted under DC 7804. The Veteran has consistently reported right palm scar pain throughout the entire period on appeal. The Veteran is competent to report symptoms and experiences observable by her senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). While the July 2013 examiner attributed the Veteran's reports of scar pain to lymphedema, the record shows that the Veteran's complaints of right palm scar pain predate her right upper extremity lymphedema. This is the highest available rating for only having one painful scar that is linear and stable. The Veteran is not entitled to a higher evaluation under DC 7804 as she has only one painful scar. As indicated above, DCs 7800, 7801, and 7802 are not for application as they pertain to scars of the head, face, or neck, scars with underlying tissue damage, and scars with an area of 144 square inches or greater, none of which is the case here. In sum, based on the Veteran's reports of hand pain related to her right palm scar, a 10 percent rating, but not higher, under DC 7804 for a painful scar is granted. REASONS FOR REMAND Entitlement to service connection for recurrent UTIs While the Board regrets the delay, a remand is needed for additional development. This is necessary to ensure that the Veteran is afforded every possible consideration and that there is a complete record upon which to decide her appeal. The Veteran claims that she has a current UTI disability which is related to her service. The Veteran was afforded a VA UTI examination in July 2013. In a May 2018 remand, the Board remanded the issue for clarification regarding recurrent UTIs and rare, infrequent, acute UTIs. Pursuant to the remand, the Veteran was afforded another VA UTI examination in March 2019. The March 2019 VA examiner was unable to render an opinion, noting insufficient evidence to warrant or confirm a diagnosis of acute or chronic recurrent UTIs and/or residuals. The examiner further remarked that the Veteran's in-service UTIs in 2004 resolved without residuals, and the Veteran had no UTIs in the last 13-14 years. The Board notes that the Veteran's service treatment records document approximately 15 UTIs from 1989 to 2004, and the record shows that the Veteran complained of UTI symptoms in May 2012. She additionally reported a 2013 UTI on examination in July 2013. Further, the Veteran reported that she has experienced chronic UTIs since separation, and that she still experiences them. See June 2016 VA Form 9, June 2014 Notice of Disagreement, and July 2013 Statement in Support of Claim. The Board finds that the March 2019 VA examination and opinion are inadequate for adjudicative purposes. The opinion relies on inaccurate factual bases of only two in-service UTIs in 2004, and only one post-service 2012 complaint. The opinion additionally does not take into account the Veteran's lay statements, or the findings of the July 2013 VA examiner of 16 in-service UTIs, and UTIs in 2012 and 2013. For these reasons, remand is warranted to obtain an addendum opinion addressing the nature and etiology of the Veteran's UTIs. The matter is REMANDED for the following action: Obtain medical opinions regarding the nature and etiology of the Veteran's claimed recurrent UTIs. The need for a clinical examination is left to the examiner's discretion. Specifically, the examiner is asked to address the following: (A) Does the Veteran currently have, or has she had at any point during the period on appeal (i.e., from May 9, 2012), a urinary tract infection, recurrent, rare, or otherwise? (B) If the Veteran has had a urinary tract infection at any point during the period on appeal, is the urinary tract infection related to service, to include the documented UTIs in the Veteran's service treatment records from 1989 to 2004? The examiner must consider the pertinent evidence of record, to include the Veteran's lay statements. (Continued on the next page) All opinions are to be accompanied by a rationale consistent with the evidence of record. If the examiner cannot provide an opinion without resorting to speculation, he or she must provide complete explanations stating why this is so. In so doing, the examiner must explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). Jason George Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Battaile 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.