Citation Nr: 22016112 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 16-37 979 DATE: March 21, 2022 ORDER Entitlement to a rating in excess of 10 percent for scar on dorsal aspect of right hand (previously rated as residuals of laceration on right hand) is denied. Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's single scar on dorsal aspect of right hand is painful but does not cause any additional functional limitation. 2. The Veteran has a combined rating of 20 percent for his right hand scar and tinnitus, which do not render him unemployable. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for scar on dorsal aspect of right hand have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.118, Diagnostic Code 7804. 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from August 1980 to August 1982. In June 2019, the Veteran testified at a videoconference hearing before the undersigned Board of Veterans' Appeals (Board) Veterans Law Judge, and a transcript of that hearing is of record. In August 2019, November 2020, and December 2021, the Board remanded the Veteran's claim for further development 1. Entitlement to a rating in excess of 10 percent for scar on dorsal aspect of right hand (previously rated as residuals of laceration on right hand) The Veteran currently has a 10 percent rating for the scar on the dorsal aspect of his right hand under Diagnostic Code 7804. The condition was previously rated as noncompensable as residuals of laceration on the right hand. Diagnostic Code 7804 applies to unstable or painful scar(s). The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7804 was not changed by the August 13, 2018, amendments. Under Diagnostic Code 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating. Three or four scars that are unstable or painful scars warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. The Board finds that the evidence of record persuasively weighs against the assignment of a rating in excess of 10 percent under Diagnostic Code 7804 because the Veteran's scar is not manifest by three or four scars that are unstable or painful. On VA examination in July 2016, the Veteran was noted to have a single, 3.5 centimeter long scar that was painful, superficial and linear, not adherent to underlying tissues, and not unstable. In an October 2019 VA examination, the Veteran's scar was noted not to be painful or unstable and was without underlying tissue damage. On VA examination in April 2021, the scar was noted to be 4 centimeters by 0.75 centimeters and to be painful but not unstable. The Board has also considered the other diagnostic codes pertaining to scars. However, the Veteran's scar is not of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage. Although it is superficial and not associated with underlying soft tissue damage, it does not cover an area or areas of 144 square inches or greater. Therefore, Diagnostic Codes 7800 through 7802, both prior to and from August 13, 2018, are inapplicable. Finally, the evidence of record shows there are no other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805. The Board notes that the Veteran has multiple conditions affecting his right hand but is only service connected for the scar on his right hand. Specifically, the Board notes that service connection for right hand arthritis was denied in February 2003 and August 2010 rating decisions. Thus, only the symptoms and impairment due to the laceration of the Veteran's right hand may be considered in determining the rating on appeal. The Veteran has reported symptoms including pain with movement, difficulty gripping, limitation with writing, cramps, numbness. In December 2021, a VA addendum opinion was obtained. The examiner opined that the Veteran's service-connected right hand laceration is not related to disability caused by the Veteran's osteoarthritic changes and wrist disability. The examiner opined that the service-connected laceration healed without complications. The Board finds the December 2021 VA opinion that the Veteran's service-connected right hand laceration does not cause any limitation of range of motion or other functional limitation to be highly probative. To the extent that the Veteran himself has attributed any hand symptomatology other than pain in the scar to his service-connected right hand laceration, the Board finds that as a lay person, he does not have the education, training, or experience to competently opine as to such an etiological relationship, which is complicated by his other, nonservice-connected hand conditions. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a disability rating in excess of 10 percent for scar on dorsal aspect of right hand. As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2022). 2. Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) VA regulations allow for the assignment of a total disability rating based on individual unemployability when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). As of October 7, 2019, the Veteran is rated at 10 percent for his right hand scar and 10 percent for tinnitus, for a combined rating of 20 percent. Prior to October 7, 2019, the Veteran's only compensable rating was 10 percent for the right hand scar. Therefore, the Veteran does not meet the schedular rating criteria for TDIU. Even if service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), referral to the Director of the VA Compensation and Pension Service for extraschedular consideration of a TDIU is warranted if the veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(b). The central inquiry is "whether the veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In an October 2019 application for TDIU, the Veteran reported he last worked in 2001 as a laborer. In his December 2020 application for TDIU, the Veteran did not indicate the date he last worked full-time or the date he became too disabled to work and listed no employment history. On both forms, he indicated his right hand prevents him from working. On his 2019 form he also cited shoulder and elbow pain. (Continued on the next page) A March 2020 statement of R.D., MD. indicated the Veteran was considered to be totally and permanently disabled form seeking or sustaining any type of employment due to both shoulder synovitis, left hemiparesis from stroke, constant stress from military service. Significantly, none of these conditions are presently service-connected. The Board has considered the symptoms of the Veteran's right hand scar, as discussed above, and finds that it does not produce such functional limitation, even with additional consideration of the Veteran's tinnitus, that the Veteran is unemployable and referral for extraschedular consideration of TDIU is applicable. Medical treatment records do not suggest the scar and tinnitus result in an inability to secure and follow a substantially gainful occupation. The Board is sympathetic to the Veteran's assertions regarding the impact his service-connected conditions, both professionally and personally. However, those problems have been compensated by the schedular ratings for such disabilities. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Moreover, while these disabilities caused some economic impairment, his assigned disability ratings contemplated his level of occupational impairment. Accordingly, a TDIU is denied. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Christensen 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.