Citation Nr: 22048834 Decision Date: 08/26/22 Archive Date: 08/26/22 DOCKET NO. 17-50 482A DATE: August 26, 2022 ORDER From March 13, 2017, a 60 percent rating (but no higher) for a right thigh condition (muscle group XIV) is granted. An initial compensable rating for right thigh scars is denied. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. From March 13, 2017, the probative evidence of record supports a finding that the Veteran had favorable ankylosis of the right hip, in flexion at an angle between 20 and 40 degrees, and slight abduction or adduction. 2. The probative evidence of record, including multiple VA examinations, does not support a finding that the Veteran's right thigh scars measures 39 sq. cm. or is unstable or painful. 3. The probative evidence of record, including multiple VA examinations, does not support a finding that the Veteran's service-connected disabilities have prevented him from being able to secure or follow substantially gainful employment consistent with his occupational history and educational attainment. CONCLUSIONS OF LAW 1. From March 13, 2017, the criteria have been met for 60 percent disability rating for a right thigh condition (muscle group XIV) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.55, 4.56, 4.73, Diagnostic Code (DC) 5250. 2. The criteria for an initial compensable percent rating for a right hip scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.118, DC 7804. 3. The criteria for a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1964 to July 1966. This matter is on appeal from June 2014 and July 2017 rating decisions. Increased Rating From March 13, 2017, a 60 percent rating (but no higher) for a right thigh condition (muscle group XIV) is granted. Legal Criteria The Veteran's right thigh condition was granted effective July 26, 1966. The Department of Veterans Affairs Schedule for Rating disabilities addressing muscle injuries was revised July 3, 1997. The Veteran's condition was previously rated according to disability evaluation criteria which are no longer in effect. Under DC 5314, contemplating Group XIV injuries with extension of the knee, simultaneous flexion of the hip and flexion of the knee, tension of the fascia lata and iliotibial (Maissiat's) band, acting with Group XVII in postural support of the body, acting with hamstrings synchronizing the hip and knee, the anterior thigh group, sartorius, rectus femoris, vastus externus, vastus intermedius, vastus internus, and tensor vaginae femoris, a noncompensable disability rating, zero percent, is warranted for slight impairment, 10 percent disability rating is warranted for moderate impairment, a 30 percent disability rating is warranted for moderately severe impairment, and a maximum disability rating of 40 percent is warranted for severe impairment. 38 C.F.R. § 4.73, DC 5314. Factual Background At an April 2014 VA examination, upon range of motion testing, the Veteran's right hip flexion was 100 degrees, right hip extension ended at greater than 5 degrees, abduction was not lost beyond 10 degrees, adduction was not limited such that the Veteran could not cross his legs, and rotation was not limited such that the Veteran could not toe-out more than 15 degrees. The Veteran was able to perform repetitive-use testing without any further limitations. The Veteran reported flare-ups in the right hip during which he has short duration of pain on prolonged standing. The Veteran did not have any ankylosis of the right hip. At a March 2017 VA examination, upon range of motion testing, the Veteran's right hip flexion ended at 125 degrees, right hip extension ended at 30 degrees, abduction ended at 25 degrees, abduction ended at 45 degrees, external rotation ended at 60 degrees, and internal rotation ended at 40 degrees. Adduction was not limited such that the Veteran could not cross his legs. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no additional loss of function or range of motion after three repetitions. The Veteran was not being examined immediately after repetitive use over time or during a flare-up. The conducting physician opined that pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time or during a flare-up would not significantly limit functional ability. The physician indicated that there was no evidence of pain on passive range of motion, or non-weight bearing testing of the right hip. The physician noted that the Veteran had favorable ankylosis of the right hip, in flexion at an angle between 20 and 40 degrees, and slight abduction or adduction. Analysis The disability rating warranted for the Veteran's for service-connected right hip condition, 40 percent, is the maximum disability rating provided by DC 5314 for Muscle Groups XIV. Accordingly, the Board has also considered whether a higher disability rating is warranted under any other potentially applicable DCs related to the right hip. Under DC 5250, contemplating ankylosis of the hip, a 60 percent disability rating is warranted for favorable ankylosis in flexion at an angle between 20 and 40 degrees and slight adduction or abduction, a 70 percent disability rating for intermediate ankylosis, and a 90 percent disability rating for unfavorable or extremely unfavorable ankylosis, with the foot not reaching the ground, crutches necessitated. 38 C.F.R. § 4.71a, DC 5250. The Board notes that the March 2017 VA examiner found that the Veteran had favorable ankylosis of the right hip, in flexion at an angle between 20 and 40 degrees, and slight abduction or adduction. Accordingly, the Board finds that a 60 percent rating is warranted starting March 13, 2017, the date of said examination. What remains for consideration is whether a still higher, 70 percent rating is warranted. Here, the Board finds that the probative evidence of record does not support a finding that the Veteran has intermediate ankylosis of the right hip. As such, the Veteran does not meet the criteria for a 70 percent rating. An initial compensable rating for a right thigh scar is denied. Legal Criteria In evaluating skin and scar residuals, the Board notes that during the appeal period, changes were made to certain Diagnostic Codes under 38 C.F.R. § 4.118. Effective August 13, 2018, VA amended its regulations governing skin disabilities. VA's 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. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 13, 2018). In this case, because the Veteran filed the claim before the August 13, 2018, effective date, the Board will consider whether either the old or new rating criteria are more favorable to the Veteran. Under the old rating criteria, DC 7805 provided that other scars (including linear scars) and other effects of scars evaluated under DCs 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under DCs 7800-7804 under an appropriate Diagnostic Code. 38 C.F.R. § 4.118, DC 7805 (2017). The Board notes that this Diagnostic Code is largely unchanged under the new amendments apart from the replacement of the phrase "(including linear scars)" with "and other effects of scars evaluated under DCs 7800, 7801, 7802, or 7804." 38 C.F.R. § 4.118, DC 7805 (August 13, 2018). 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). The pre-amended DC 7801 provided disability ratings for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear. 38 C.F.R. § 4.118, DC 7801 (2017). In contrast, the amended DC 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, DC 7801 (August 13, 2018). Both the old and new criteria provide 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. 38 C.F.R. § 4.118, DC 7801. Note (1) to the pre-amended DC 7801 stated that a deep scar is one associated with underlying soft tissue damage. Prior to August 13, 2018, DC 7802 provided rating criteria for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear. 38 C.F.R. § 4.118, DC 7802. The amended version is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802 (August 13, 2018). Both versions state that a 10 percent disability rating is warranted when the area of the scar covers 144 square inches (929 square centimeters) or greater. Under both the old and new rating criteria, DC 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, DC 7804. Under DC 7805, scars with disabling effects other than those evaluated under DCs 7800 through 7804 are to be rated under an applicable Diagnostic Code. 38 C.F.R. § 4.118, DC 7805. Factual Background At an April 2014 VA examination, the conducting physician identified two scars on the Veteran's right thigh: one above the patella area measured at 13 cm's and one on the posterior part of the right thigh measured at 6 cm's. The examiner indicated that the scars were not unstable and/or painful and that the total area of the scars were not greater than 39 square cm's. The examiner did not report whether the scar was deep versus superficial or linear versus non-linear. At a March 2017 VA exanimation, the conducting physician identified two linear scars on the Veteran's right thigh: one measured at 10 cm's and one measured at 8 cm's. The examiner did not indicate that the scars were tender to palpation or unstable upon inspection. Analysis The Veteran is currently rated at 0 percent, or noncompensable, under DC 7805. At the April 2014 VA examination the conducting physician indicated that the total area of the Veteran's scars was not greater than 39 square cm's. Therefore, the probative evidence of record indicates that the Veteran's scars fall short of the 39 sq. cm. required for a compensable rating under DC 7801 or the 929 sq cm. required for a compensable rating under DC 7802. Therefore, a higher rating is not justified under either DC. The last DC for scars is 7804 based upon a scar being either unstable or painful. An unstable scar is one that has frequent loss of the skin covering the scar. Neither the April 2014 nor March 2017 VA examiners found that the Veteran's scars were unstable or painful. The Veteran has not provided any statements that his right thigh scars is painful. Accordingly, the probative evidence of record is against the Veteran's claim for a compensable rating for the Veteran's right thigh scars. A TDIU rating is denied. Legal Criteria A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to obtain or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common cause; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran's ability to obtain and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. Eligibility Because the Board has elected to increase the Veteran's right thigh condition to 60 percent, the Veteran meets the schedular criteria for a TDIU from March 13, 2017. Prior to this period, the Veteran did not have a service-connected disability that is rated at least 60 percent disabling nor did he have multiple service-connected disabilities, combining to a 70 percent or greater level of impairment with at least one disability rated 40 percent and thus he does not meet the schedular criteria for TDIU eligibility. 38 C.F.R. § 4.16(a). However, the Veteran reported in his application for increased compensation based on unemployability that, due to his service-connected right thigh condition, right thigh scars, and back condition, he is unable to gain employment, which raises the issue of eligibility for a TDIU rating on an extraschedular basis prior to March 13, 2017. See 38 C.F.R. § 4.16(b). Accordingly, the Board will consider whether the Veteran met the criteria for a TDIU rating during both the extraschedular and schedular periods. Factual Background In March 2017, the Veteran submitted his application for a TDIU rating in which he indicated that he was last worked in August 2010. The Veteran indicated that he had four years of college and two years of law school. At an April 2014 VA examination, the conducting physician indicated that the Veteran's service-connected back condition did not impact his ability to work. The physician noted that the Veteran denied flare-ups of his back condition and does not experience weakness, incoordination, or fatigability of the back. The physician further noted that the Veteran denied additional limitation of range of motion during repeated testing. The physician indicated that the Veteran retired for non-medical reasons after being employed as a division vice president and regional manager. The physician noted that this was an office job which featured a lot of sitting. The physician also opined that the Veteran's right thigh condition does not impact his ability to work because there is no decrease in the range of motion after repetitive motion, no observed weakness or incoordination, nor subjective fatigability. At a March 2017 VA examination, the conducting physician indicated that the Veteran's right thigh condition did not impact his ability to work. The physician explained that the Veteran's right thigh condition was in a period of inactivity or dormancy. The physician also opined that the Veteran's back condition and right thigh scar did not impact his ability to work. Analysis The probative evidence record does not support a finding that any of the Veteran's service-connected disabilities cause functional impact contemplated by TDIU during either the extraschedular or schedular periods. The Board notes that nothing in the treatment records nor examination reports suggest that the Veteran's service-connected back condition, right thigh condition, or right thigh scars have a significant impact on his employment. Additionally, the Veteran has not explained any functional impairment caused by his service-connected disabilities. Rather, the April 2014 and March 2017 VA examinations indicate that the Veteran's service-connected abilities do not impact his ability to work. Even assuming for the sake of argument, that the Veteran's service-connected disabilities impact his ability to obtain or sustain gainful employment which would require him to do physical labor, the record does not support a finding that the Veteran would not be able to obtain or sustain sedentary employment. In a January 2020 decision, the Court noted that VA has not explicitly defined the meaning of "sedentary employment" and held that, until VA provides such a definition, "the meaning and relevance of the term will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each veteran's education, training, and work history." Withers v. Wilkie, No. 16-1543 (Vet. App. Aug. 10, 2018) at 11. In this case, the Board envisions potential sedentary employment to encompass a wide variety of administrative, managerial, or other forms of employment that would not require the Veteran to spend a significant amount of time on his feet, walk for extended periods or engage in physical activity requiring heavy lifting. Here, the record indicates that the Veteran has four years of college, two years of law school and upper management work experience. Additionally, the record indicates that his last job was a "sitting down office job." See April 2014 VA examination. Accordingly, the Board does not find that the Veteran's service-connected disabilities would prohibit him from obtaining or sustaining sedentary employment. Given the documented lack of occupational impact from the Veteran's service-connected back condition, right thigh condition, or right thigh scars, the Veteran's claim for a TDIU rating is denied. Robert Elliott II Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander Bahus 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.