Citation Nr: 22032003 Decision Date: 06/01/22 Archive Date: 06/01/22 DOCKET NO. 17-65 214 DATE: June 1, 2022 ORDER The appeal for entitlement to an initial compensable rating for a midsternum scar is denied. REMANDED The appeal for entitlement to rating in excess of 20 percent for diabetes mellitus, type II, is remanded. The appeal for entitlement to a rating in excess of 60 percent for ischemic heart disease (IHD) is remanded. The appeal for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran's surgical scar of the midsternum is not of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage; it does not cover an area or areas of 144 square inches or greater and is not unstable or painful. CONCLUSION OF LAW The criteria for an initial compensable rating for a midsternum scar are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, DC 7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1968 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2017 by a Department of Veterans Affairs (VA) Regional Office. In accordance with his request, the Veteran was scheduled for a Board hearing before a Veterans Law Judge in April 2022. However, in August 2021, the Veteran withdrew such request. 38 C.F.R. § 20.702 (e). In August 2021, a VA form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) in favor of the National Association of County Veterans Service Officers, Inc., was submitted. However, as the Veterans appeal was certified to the Board in March 2018 and docketed in February 2019, and such change in representation was submitted more than 90 days thereafter without good cause, the Board finds that, at the current time, John P. Dorrity, an Agent, retains representation of the Veteran in this appeal. 38 C.F.R. § 20.1304 (a), (b); see e.g., Perez v. Shinseki, 25 Vet. App. 190 (2011) (the Board did not err in denying claimant's request for change of representative, where request was submitted more than 90 days after his appeal was certified to the Board and no good cause was shown for the delay). Notably, however, where this appeal is being remanded to the Agency of Original Jurisdiction (AOJ) for further development, the Veteran's appointment of the National Association of County Veterans Service Officers, Inc. as his representative is referred to the AOJ for appropriate action. 38 C.F.R. § 20.1305 (b)(1)(i). Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. The appeal period before the Board begins on February 13, 2017, the date VA received the Veteran's claim for increased ratings, plus the one-year look back period. Gaston v. Shinseki, 605 F.3d 979. 982 (Fed. Cir. 2010). 1. Entitlement to an initial compensable rating for a midsternum scar. The Veteran seeks entitlement to an initial compensable rating for his midsternum scar. Service connection for a midsternum scar, as secondary to service-connected ischemic heart disease, was granted in a May 2017 rating decision, at which time a noncompensable rating was assigned, effective March 7, 2017, the date his VA examination showed objective findings of a scar of the midsternum. The Veteran's scar is rated under Diagnostic Code 7805 for other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7805 was not changed by the August 13, 2018, amendments. Diagnostic Code 7805 instructs that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 should be rated under an appropriate Diagnostic Code. The March 2017 VA examination indicates that the Veteran has one scar of his midsternum, which measures 20 centimeters by 1.5 centimeters. The scar was not painful or unstable and did not have a total area equal to or greater than 39 square centimeters. The Veteran has not submitted any lay statements asserting that his scar is painful or unstable or affects a total area equal to or greater than 39 square centimeters. He has not asserted that his scar causes any other disabling effects. The Board finds that the evidence of record persuasively weighs against the assignment of a compensable rating for the Veteran's scar under Diagnostic Code 7805 as the lay and medical evidence do not indicate there are any other disabling effects not considered in a rating provided under Diagnostic Codes 7800-04. The Board has also considered the other Diagnostic Codes pertaining to scars. Scars are rated under 38 C.F.R. § 4.118, DCs 7800 through 7805. DC 7800 pertains to burn scars of the head, face, or neck; scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. However, as the scar at issue affects the Veteran's midsternum, DC 7800 is inapplicable and will not be further considered. DC 7801 pertains to burn scars or scars due to other causes, not of the head, face, or neck, that are, prior to August 13, 2018, deep and nonlinear and, after such date, associated with underlying soft tissue damage. Under this DC, a 10 percent rating is assigned when the scar(s) cover an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). Higher ratings are available for greater areas affected. DC 7802 pertains to burn scars or scars due to other causes not of the head, face, or neck that are, prior to August 13, 2018, superficial and nonlinear and, after such date, not associated with underlying soft tissue damage. Under this DC, a single 10 percent rating is assigned when the scar(s) cover an area or areas of 144 square inches (929 sq. cm) or greater. DC 7804 provides that one or two scars that are unstable or painful warrant a 10 percent evaluation. Three or four scars that are unstable or painful warrant a 20 percent rating, while five or more scars that are unstable or painful warrant a 30 percent evaluation. 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, the rater is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804, when applicable. Note (3). During the pendency of the appeal, VA amended the criteria for rating the skin, to include scars. See Schedule for Rating Disabilities: Skin, 83 Fed. Reg. 32,592 (July 13, 2018). As pertinent to the instant appeal, such amendment changed DC 7801 by removing the term "deep and nonlinear" and replacing it with "associated with underlying soft tissue damage," and changed DC 7802 by removing the term "superficial and nonlinear" and replacing it with "not associated with underlying soft tissue damage." Such also amended the accompanying notes to read: Note (1): For the purposes of DCs 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Note (2): A separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body. Combine the separate evaluations under § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this DC. With regard to the effective date of the new criteria, VA indicated in the Supplementary Information to the Final Rule that its "intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied." The Veteran's claim in this case was pending prior to the August 13, 2018, effective date of the new criteria and, therefore, the Board will consider both the old and new criteria. In order to afford the Veteran all possible avenues of entitlement to a higher rating, the Board has considered all applicable DCs, to include both the old and new criteria, as well as his specific reports of his symptoms and the medical evidence. The evidence fails to demonstrate that the Veteran's scar is deep or associated with underlying tissue damage, and it does not encompass an area of 144 square inches or greater; therefore, a higher rating is not warranted under DC 7801 or 7802. Moreover, as the March 2017 VA examiner found that the Veteran's scar was not painful or unstable, a compensable rating pursuant to DC 7804 is not warranted. 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. Moreover, the Veteran's scar is not unstable or painful. Therefore, Diagnostic Codes 7800, 7801, 7802, and 7804, both prior to and from August 13, 2018, are inapplicable. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the lay statements and medical records do not show that the Veteran's scar is manifest by any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a compensable rating for his scar. As the evidence of record persuasively weighs against a compensable rating, 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, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II. 2. Entitlement to a rating in excess of 60 percent for IHD. The Veteran was last afforded VA examinations for his diabetes and IHD in 2017, more than five years ago. Additionally, there are no updated treatment records in the claims file. Also, at the time of the March 2017 VA examination, the examiner noted that the Veteran has a current diagnosis of coronary artery disease, with a history of myocardial infarction in 1998 and coronary artery bypass graft in 2015. However, the examiner also noted that there is no history of congestive heart failure, cardiac arrhythmia, heart valve conditions, infectious heart diseases, or pericardial adhesions. However, VA treatment records indicate that the Veteran was diagnosed with congestive heart failure in August 2013. Moreover, private treatment records reveal that the Veteran has heart valve conditions and underwent an aortic valve replacement and triple bypass surgery in December 2016. Thus, such records are inconsistent with the findings in the March 2017 VA examination. In light of the conflicting evidence, the Board finds a remand is necessary in order to clarify the nature of the Veteran's heart disability, to include whether the Veteran experiences congestive heart failure and/or heart valve conditions. A remand is also necessary to afford the Veteran contemporaneous examinations to determine the current severity of his disabilities. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). 3. Entitlement to a TDIU. The issue of entitlement to a TDIU is inextricably intertwined with the Veteran's claims for increased ratings, which are remanded herein. Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, consideration of his TDIU claim is deferred pending the outcome of his increased rating claims. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. Afford the Veteran a VA examination to determine the current severity of his diabetes mellitus, type 2. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. The examiner should identify and completely describe all current symptomatology. The examiner should provide a detailed review of the Veteran's current complaints, as well as findings as to the nature, extent, and severity of symptoms caused by the Veteran's disability. 3. Afford the Veteran a VA examination to determine the current severity of his IHD. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. The examiner should identify and completely describe all current symptomatology. The examiner should provide a detailed review of the Veteran's current complaints, as well as findings as to the nature, extent, and severity of symptoms caused by the Veteran's disability. The examiner should clarify whether the Veteran's heart disability results in chronic congestive heart failure or heart valve conditions. *If it is determined that the Veteran does not have congestive heart failure, the examiner should reconcile this finding with the VA active problem list noting congestive heart failure in the VA treatment records. The examiner should also consider and discuss the Veteran's December 2016 aortic heart valve replacement and triple bypass surgery. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. L. ANDERSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Waite 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.