Citation Nr: 22013783 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 18-45 504 DATE: March 10, 2022 ORDER Entitlement to an initial rating in excess of 10 percent for scars on the left side of chin, right eyebrow, and center top of forehead prior to August 27, 2018, and to a compensable rating thereafter is denied. Entitlement to an initial compensable rating for scars on the left side of chin, right eyebrow, top center of forehead and pilonidal cyst removal prior to May 11, 2018, and in excess of 20 percent thereafter is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for lumbosacral spine sprain, lumbar scoliosis, and degenerative facet L5-S1 (lumbar spine disability) prior to April 25, 2017, and in excess of 20 percent thereafter is remanded. Entitlement to an initial rating for left lower extremity radiculopathy prior to April 25, 2017, and to a rating in excess of 10 percent thereafter is remanded. Entitlement to an initial rating for right lower extremity radiculopathy prior to April 25, 2017, and to a rating in excess of 10 percent thereafter is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. Prior to August 27, 2018, the Veteran's scars to the left chin, right eyebrow, and forehead had one characteristic of disfigurement (that the left chin scar was slightly raised). 2. From August 27, 2018, the Veteran's scars to the left chin, right eyebrow, and forehead had no characteristics of disfigurement. 3. Prior to May 11, 2018, the Veteran's scars to the left chin, right eyebrow, forehead, and pilonidal cyst were not noted as painful, nonlinear, unstable, or covering an area more than 6 square inches. 4. From May 11, 2018, the Veteran has had three linear, stable painful scars covering an area less than 6 square inches. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent prior to August 27, 2018, and to a noncompensable rating thereafter for scars on the left side of chin, right eyebrow, and center top of forehead based on disfigurement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, Diagnostic Codes (DCs) 7800-7805. 2. The criteria for an initial compensable rating prior to May 11, 2018, and in excess of 20 percent thereafter for scars on the left side of chin, right eyebrow, top center of forehead and pilonidal cyst removal have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, DCs 7800-7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2000 to August 2005. The case is on appeal from June 2017, August 2018, and September 2018 rating decisions. In the June 2017 rating decision, service connection was granted for the Veteran's lumbar spine disability effective August 16, 2005, and for left and right lower extremity radiculopathy both effective April 25, 2017. In the September 2018 rating decision, service connection was granted for the Veteran's scars on the left side of the chin, right eyebrow, center top of the forehead, and pilonidal cyst removal rated under DC 7804 effective May 11, 2018. The Veteran filed notices of disagreement (NODs) with the initial ratings and effective dates assigned for these now service-connected disabilities. Subsequently, in a November 2019 rating decision, service connection was granted for scars to the left side of chin, right eyebrow, and center top of the forehead based on disfigurement rated 10 percent disabling from August 16, 2005, and noncompensably disabling from August 27, 2018, pursuant to DC 7800. An earlier effective date of August 16, 2005, for service connection of scars left side of chin, right eyebrow, and center top of forehead and pilonidal cyst removal. A noncompensable rating prior to May 11, 2018, and a 20 percent rating thereafter was assigned under 7804. Since the rating schedule directs VA to rate scars disabling effects under 38 C.F.R. § 4.118, DCs 7800, 7801, 7802, and 7804 as applicable, the Board will consider both the ratings assigned under DCs 7800 and 7804. 38 C.F.R. § 4.118, DC 7805. To the extent that the Veteran has expressed disagreement with the effective dates of service connection for his disabilities, the earliest possible effective date, the date after separation from service, has been assigned. 38 C.F.R. § 3.400(o); see also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, note (1) (directing VA to consider objective neurologic abnormalities in evaluating spine disabilities). Therefore, the issues regarding entitlement to an earlier effective date for service connection have been granted in full and are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). In September 2021, the Veteran testified at a Board hearing. Thereafter, the Veteran submitted copies of his VA treatment records and waived initial consideration of the records by the RO. See 38 C.F.R. § 20.1305(c). Thus, the Board can proceed to consider the merits of the issues. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Entitlement to an initial rating in excess of 10 percent for scars on the left side of chin, right eyebrow, and center top of forehead prior to May 11, 2018, and to a compensable rating thereafter 2. Entitlement to an initial compensable rating for scars on the left side of chin, right eyebrow, top center of forehead and pilonidal cyst removal prior to May 11, 2018, and in excess of 20 percent thereafter General Rating Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation. Thus, separate ratings can be assigned for separate periods of time based on the facts founda practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Analysis The Veteran claims that he is entitled to a 20 percent rating for his scars since August 16, 2005, because his symptoms have remained about the same since separation from service. The diagnostic criteria for disorders of the skin are found at 38 C.F.R. § 4.118, DCs 7800-7805. The Board notes that on September 23, 2008, VA amended the criteria for evaluating scars. See 73 Fed. Reg. 54,708 (Sept. 23, 2008). The amendments are only effective for claims filed on or after October 23, 2008. As the Veteran's claim for an increased rating is associated with his initial claims for service connection filed in June 2006, VA must apply the old regulation prior to October 23, 2008, and the application of the old and amended regulations after the effective date of the amendments. Given that the area of the Veteran's service-connected scars are less than 6 square inches (39 sq. cm.) in area and not noted to be unstable or non-linear, the relevant ratings are as follows. As it pertains to this case, DC 7800 was unaffected by the September 23, 2008 amendment. Under DC 7800, scarring resulting in disfigurement of the head, face, or neck warrants a 10 percent rating if one characteristic of disfigurement is present. 38 C.F.R. § 4.118, DC 7800. A 30 percent evaluation is warranted if there are 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 if there are two or three characteristics of disfigurement. A 50 percent evaluation is authorized if there is 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 if there are four or five characteristics of disfigurement. Id. An 80 percent evaluation is assigned for 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 if there are six or more characteristics of disfigurement. Id. The eight characteristics of disfigurement, for purposes of evaluation under 38 C.F.R. § 4.118, are: (1) A scar five or more inches (13 or more centimeters (cm.)) in length; (2) A scar at least one-quarter inch (0.6 cm.) wide at its widest part; (3) The surface contour of the scar is elevated or depressed on palpation; (4) The scar is adherent to underlying tissue; (5) The skin is hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) The skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) There is underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); (8) The skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Prior to September 23, 2008, DC 7804 provided for a maximum rating of 10 percent for superficial scars painful on examination provided that the scars were not associated with underlying soft tissue damage. Under the current DC 7804, a scar will be assigned a 10 percent rating if there are one or two scars that are painful or unstable; a 20 percent rating if there are three or four scars that are painful or unstable; and a 30 percent rating if there are five or more scars that are painful or unstable. 38 C.F.R. § 4.118. Note (3) indicates that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under this DC when applicable. The Veteran was first afforded a VA examination of his scars in July 2006. At that time, the examiner found a slightly hypopigmented, nontender scar over the right eyebrow; another slightly-raised hypopigmented scar over the chin; a third scar over the scalp; and a one-inch longitudinal, nontender surgical incision scar from the removal of a pilonidal cyst. No disfigurement was associated with the scars of the head, neck, and face. The Veteran was afforded another VA examination of his surgical scars in August 2018. As to the pilonidal scar, a well-healed, noninflamed scar around which the Veteran experience a sharp and dull intermittent pain was noted. The scar was linear, measuring 3.8 centimeters in length. Three scars on the head and face were noted: a well-healed left-side chin scar, a well-healed hypopigmented scar above the right eyebrow, and a well-healed hyperpigmented scar on the center top of the forehead. The Veteran reported continuous pain and occasional swelling with the chin scar and intermittent itching with the eyebrow scar. The left chin scar was 1 centimeter by 0.1 centimeters; the right eyebrow scar was 1 centimeter by 0.1 centimeters; and the forehead scar was 6.5 centimeters by 0.5 centimeters at its greatest width. The total area of scarring to the face and head was 3.35 centimeters square. There was no gross distortion or asymmetry of facial features, no disfigurement, and no associated muscle damage. At the September 2021 Board hearing, the Veteran stated that he did not notice any changes over the years in his scars. He also testified that his pilonidal cyst scar and eyebrow scars were painful and that his chin scar would sometimes dry up. He reported not receiving any treatment for his scars. The Veteran is currently in receipt of two different ratings for his scars: a 10 percent rating based on disfigurement under DC 7800 prior to August 27, 2018, and a 20 percent rating for painful scars under DC 7804 from May 11, 2018. A rating in excess of 10 percent for scars to the head, neck, and face under DC 7800 is not warranted prior to August 27, 2018. At the June 2006 VA examination, the chin scar was said to be slightly raised, indicating that at least one scar had a single characteristic of disfigurement. However, the June 2006 VA examination reveals no other characteristics of disfigurement. A compensable rating for scars to the head, neck, and face under DC 7800 is not warranted after August 27, 2018. By the time of the August 2018 VA examination, the chin scar was no longer found to be raised. While the Veteran has not noticed this change, the objective observation at the August 2018 VA examination is probative and persuasive evidence pertinent to the rating criteria. Thus, by the time of the August 27, 2018, VA examination, there were no characteristics of disfigurement as described in DC 7800 associated with any of the Veteran's scars. Specifically, the August 2018 VA examination found that there has been no distortion or disfigurement of facial features and that the scars of the head, neck, and face were 3.35 centimeters. The largest scar, the one on the forehead is only 0.5 centimeters at its widest point. Although the Veteran stated that his chin scar would dry up, there is no indication in the record of any skin abnormalities or disfiguring characteristics associated with the dryness. Therefore, a rating in excess of 10 percent is not warranted prior to August 2018 for the Veteran's scars under DC 7800. Based on the findings of the VA examination regarding disfigurement to the head, neck, and face, the Board finds that a rating in excess of 10 percent prior to August 27, 2018, and to a compensable rating thereafter is not warranted for the Veteran's left chin, right eyebrow, and forehead scar. See Tatum v. Shinseki, 24 Vet. App. 139, 143 (2010) (distinguishing between the assignment of an initial staged rating and a rating reduction). An initial compensable rating prior to May 11, 2018, and in excess of 20 percent thereafter for the Veteran's scars for the left chin, right eyebrow, forehead, and pilonidal cyst is not warranted. The Veteran is in receipt of the 20 percent rating for having three painful scars. For the first time at the August 2018 VA examination, the Veteran reported that his pilonidal scar and chin scar are painful and that his right eyebrow itches intermittently. No scars were said to be unstable or tender. Further, the area of scarring was said to be less than 6 square inches. These observations are consistent with the Veteran's reports of painful scars at the September 2021 Board hearing. Therefore, a rating in excess of 20 percent is not warranted after consideration of DCs 7800-7804, and the Veteran does not report further symptoms associated with his scars. Further, the first report of painful scars was at the August 2018 VA examination. Thus, a compensable rating for painful scars is not warranted prior to May 11, 2018. See Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). In conclusion, even after affording the Veteran the benefit of the doubt, for the Veteran's scars (1) an initial rating in excess of 10 percent is not warranted prior to August 18, 2018, and an initial non compensable rating thereafter is not warranted under DC 7800; and (2) an initial compensable rating prior to May 11, 2018, and in excess of 20 percent thereafter is not warranted under DC 7804. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for lumbar spine disability prior to April 25, 2017, and in excess of 20 percent thereafter A remand is necessary to afford the Veteran a new VA examination of his lumbar spine disorder as he indicated at the September 2021 Board hearing that his lumbar spine disability has worsened over the last year. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Veteran was most recently afforded a VA examination in April 2017. At the September 2021 Board hearing, the Veteran testified that his lumbar spine disability was worse that it was a year before. Specifically, the Veteran found that if he takes a week of vacation, his pain is so bad that he becomes immobile and that he usually takes more medication during those times. Given the Veteran's testimony, the Board finds that a remand for a new VA examination is required. The Board is specifically interested in the Veteran's reports of functional impact during flare-ups in light of the Veteran's Board testimony and his description at the April 2017 VA examination of flare-ups of increased stiffness and intense pain 7-8 times per year lasting days. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). After considering the Veteran's lay statements, the examiner should provide estimated range of motion during a flare-up and after repeated use over time. If estimated range of motion cannot be provided without resort to mere speculation, the examiner should explain why. Finally, the Veteran's attorney has noted that a March 2015 private treatment record notes the Veteran's lumbar spine disability affects his L4-L5-S1 discs. The Veteran's attorney argues that because of the involvement of S1, a 20 percent rating is warranted from March 23, 2015. A medical opinion is also needed to consider whether the involvement of the S1 vertebra along with L4 and L5 would constitute the involvement of a second major joint. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). 2. Entitlement to an initial rating for left lower extremity radiculopathy prior to April 25, 2017, and to a rating in excess of 10 percent thereafter 3. Entitlement to an initial rating for right lower extremity radiculopathy prior to April 25, 2017, and to a rating in excess of 10 percent thereafter A remand of the Veteran's claims for higher ratings for his lower extremity radiculopathy is also necessary as the Veteran testified that his radicular symptoms have gotten worse in the year prior to the Board hearing. See Snuffer, supra. Further, any examination for the lumbar spine will include findings as to lower extremity radiculopathy, and the claims are inextricably intertwined. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine; see also Chavis v. McDonough, 34 Vet. App. 1 (2021). 4. Entitlement to service connection for sleep apnea A remand is necessary to obtain a new medical opinion as to the etiology of the Veteran's sleep apnea. In July 2018, the Veteran was afforded a VA examination. The July 2018 medical examiner opined that the Veteran's sleep apnea was less likely than not proximately due to or the result of the Veteran's service-connected disability. In support, the examiner stated that the conditions are not medically related. Sleep apnea is a separate entity entirely from the Veteran's lumbar spine disorder, and the medical literature does not support a medical relationship. A nexus has not been established. Records do indicate previous pulmonologist determined January 2006 narcotics utilized for back pain could be a possible contributing factor to sleep apnea. Medical records are silent in regard to diagnosis of sleep apnea or studies used to evaluate neurological abnormalities. The Board finds that the July 2018 VA medical opinion is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Notably, the examiner only noted the January 2006 report that narcotics could be a possible contributing factor to sleep apnea. There is no explanation as to why the use of narcotics is less likely than not to have caused or aggravated the Veteran's sleep apnea. Further, the rationale provided for the medical opinion as to direct service connection appears to be only that the Veteran's service treatment records are silent as to any diagnosis as to sleep apnea or studies used to evaluated neurological abnormalities. Finally, a new medical opinion as to the etiology of the Veteran's sleep apnea is needed to consider the new lay statements of record. At the September 2021 Board hearing, the Veteran testified that he had sleep difficulties during service, but he never got a sleep study done because he did not know what sleep apnea was or that he had a potential medical condition. He also stated that he would wake up numerous times a night, that he was constantly tired throughout the day, and that his wife told him he would snore at night. The Board finds the Veteran competent to testify as to his symptoms and his Board September 2021 Board hearing testimony as to symptoms to be credible. However, the Veteran's testimony is only somewhat probative because it lacks details that could relate an unusual sleep patterns or day-time symptoms over a period of time. The matters are REMANDED for the following actions: 1. Afford the Veteran an examination to assess the severity of his lumbar spine disability and left and right lower extremity radiculopathy. The examiner should provide findings as to range of motion during flare-ups and repeated use over time. If the Veteran is not being examined during a flare-up or after repeated use over time, the examiner should provide estimates of the Veteran's range of motion during flare-ups and after repeated use over time in light of the Veteran's September 2021 Board hearing testimony that when he is on vacation, he is immobile by the third of fourth day and his report at the April 2017 VA examination that he had increased stiffness and intense pain occurring 7-8 times per year lasting for days. If the examiner is unable to provide estimates without resort to mere speculation, the examiner should provide an explanation as to why estimated range of motion cannot be provided. An explanation that merely states the Veteran is not being examined during a flare-up or after repeated use over time will be considered inadequate. Finally, in a March 2015 private treatment record, the involvement of the L4-L5-S1 vertebras was noted. Please state whether the involvement of the S1 vertebra constitutes the involvement of a second joint in the Veteran's lumbar spine disability. A complete rationale should be provided for any opinion rendered. 2, Please obtain a new medical opinion as to the etiology of the Veteran's sleep apnea. Whether to conduct an examination is left to the discretion of the examiner. Specifically, the examiner should opine as to whether: (A) It is at least as likely as not that the Veteran's sleep apnea is related to service. (B) It is at least as likely as not that the Veteran's sleep apnea was caused by his lumbar spine disability, to include taking narcotics for pain. (C) It is at least as likely as not that the Veteran's sleep apnea was aggravated by his lumbar spine disability, to include taking narcotics for pain. A complete rationale should be provided for any opinion rendered. In doing so, please consider the Veteran's September 2021 Board hearing testimony that he woke up numerous times each night, was sleepy during the day, and was snoring during service. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. George 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.