Citation Nr: A25035224 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240614-448856 DATE: April 16, 2025 ORDER A disability rating for residuals of a laceration of the radial digital nerve in excess of 30 percent is denied. A disability rating in excess of 10 percent for a right index finger scar is denied. An initial compensable rating for a C-section scar is denied. An initial compensable rating for right index finger scar residuals is denied. A disability rating in excess of 10 percent for right lower extremity varicose veins is denied. A disability rating in excess of 10 percent for left lower extremity varicose veins is denied. REMANDED A disability rating in excess of 30 percent for PTSD prior to February 4, 2022, and in excess of 70 percent thereafter, is remanded. An effective date prior to February 4, 2022, for entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. An effective date prior to February 4, 2022, for entitlement to Dependents' Educational Assistance benefits (DEA) is remanded. FINDINGS OF FACT 1. The Veteran's residuals of a laceration of the radial digital nerve are manifested by moderate incomplete paralysis; severe incomplete paralysis has not been shown. 2. The Veteran's right index finger scar has not been found to be unstable or at least 12 square inches. 3. The Veteran's C-section scar has not been found to be painful or unstable, or at least 12 square inches. 4. The Veteran's right index finger residuals does not manifest in an earlier that is 144 square inches or greater. 5. The Veteran's right and left varicose veins are manifested by intermittent edema; persistent edema has not been shown. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for residuals of a laceration of the radial digital nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8514. 2. The criteria for a disability rating in excess of 10 percent for a right index finger scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7804. 3. The criteria for an initial compensable rating for a C-section scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7802. 4. The criteria for an initial compensable rating for right index finger scar residuals have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7802. 5. The criteria for a disability rating in excess of 10 percent for right lower extremity varicose veins have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Codes 7120-7121. 6. The criteria for a disability rating in excess of 10 percent for left lower extremity varicose veins have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Codes 7120-7121. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active-duty service from March 1983 to July 1991. In the June 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Submission docket. Therefore, the Board may only consider the evidence of record at the time of the October 2022 and June 2023 agency of original jurisdiction (AOJ) decisions on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claims seeking a higher rating for service-connected PTSD, and entitlement to earlier effective dates for TDIU and DEA any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). The Board observes that the AOJ last adjudicated the Veteran's PTSD, TDIU, and DEA claims in October 2022, more than a year before the submission of her VA Form 10182, notice of disagreement. However, the Veteran submitted a VA Form 20-0995 Supplemental Claim Application in March 2023 which included PTSD, TDIU, and DEA. The AOJ did not adjudicate those claims in the June 2023 rating decision but did evaluate all other claims included on the supplemental claim. As those claims should have been reviewed at that time, the Board will take jurisdiction over them as they have been appealed in the submitted notice of disagreement. Increased Ratings Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. In any increased rating claim, different ratings can be assigned for different periods of time in a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). Hyphenated DCs are used when a rating under one code requires the use of an additional DC to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. 1. A disability rating for residuals of a laceration of the radial digital nerve in excess of 30 percent 2. An initial compensable rating for a C-section scar 3. An initial compensable rating for right index finger scar residuals 4. A disability rating in excess of 10 percent for a right index finger scar 5. A disability rating in excess of 10 percent for right lower extremity varicose veins 6. A disability rating in excess of 10 percent for left lower extremity varicose veins The Veteran seeks higher ratings for her service-connected residuals of a laceration of the radial digital nerve of the right index finger, a C-section scar, right index finger scar residuals, a right index finger scar, and bilateral lower extremity varicose veins. The Veteran generally contends that higher ratings are necessary. However, after a review of the evidence of record, the Board concludes that higher ratings are not warranted for any of the claimed disorders. Right Index Finger Nerve Residuals The Veteran's right index finger residuals for nerve damage is rated under DC 8514, which contemplates impairment of the musculospiral (radial) nerve. The evidence reflects that the Veteran is right-handed; accordingly, her right upper extremity is her major (dominant) extremity. For the major (dominant) extremity, 20, 30, and 50 percent ratings are warranted for mild, moderate, or severe incomplete paralysis. A 70 percent rating is warranted for complete paralysis of the radial nerve of the major extremity. 38 C.F.R. § 4.124a, DC 8514. Descriptive words such as "mild," "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. As with any regulatory interpretation, however, where the terms are not defined in the regulation it is reasonable to presume those terms carry their ordinary dictionary meaning. See Moody v. Wilkie, 30 Vet. App. 329, 336 (2018); see also Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (holding that where regulatory terms are unambiguous, the plain meaning dictionary definition can be used). According to Merriam Webster's Collegiate Dictionary 999 (11th Ed. 2007), "mild" means gentle in nature or temperate. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. The Veteran underwent a VA examination in April 2022. The Veteran's symptoms were found to result in moderate symptoms, and manifest with moderate incomplete paralysis. There is no further evidence of the record which indicates that the Veteran's incomplete paralysis is more severe than recorded at this examination. As such, a higher rating under DC 8514 is not available. Scars The Veteran is currently assigned an initial disability evaluation of 10 percent for a painful right index finger scar under DC 7804. Under DC 7804, one or two scars that are unstable or painful warrants a 10 percent rating. Three or four scars that are unstable or painful 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 DC 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 Veteran's C-section scar and right index finger scar residual symptoms are assigned noncompensable ratings under DC 7802. DC 7802 provides rating criteria 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, Diagnostic Code 7802. A 10 percent disability rating is warranted when the area of the scar covers 144 square inches (929 square cm) or greater. Considering the criteria laid out in DCs 7802 and 7804, the Board finds that higher ratings for the Veteran's scars cannot be assigned. The Veteran underwent VA examinations in April 2022. At these examinations, none of the Veteran's scars were found to be at least 144 square inches or more, with the right finger scar measuring at 1.5 inches squared and the C-section scar measuring at 2 inches squared. Additionally, only one of the Veteran's scars is painful. None of the scars have been found to be unstable. There is no additional medical evidence which would lead the Board to assign higher ratings for any of the Veteran's scar related disabilities. Varicose Veins The Veteran's Varicose veins are rated pursuant to, DC 7121. Under DC 7121 a 20 percent rating is granted for persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema. 38 C.F.R. § 4.104. The Veteran underwent a VA examination in April 2022 at which the examiner found that her varicose veins resulted in intermittent edema. Persistent edema was not endorsed. Moreover, there is no medical evidence, including in the Veteran's treatment records which demonstrates that she experiences such symptoms. Other Considerations In reaching these conclusions, the Board has considered the statements submitted by the Veteran and her representative regarding the severity of her appealed disabilities. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Nevertheless, while the Veteran and her representative are competent to report the observable physical symptoms of these disabilities, such as pain and numbness, they are not competent to determine that they progressed and/or to what extent. These issues are medically complex and require specialized medical education and knowledge of the interaction between multiple systems in the body as well as the ability to interpret complicated diagnostic medical testing. See Jandreau, 492 F.3d at 1377 n.4, See 38 U.S.C. § 1110. While the Veteran argues that higher ratings are warranted, there has been no clinical evidence provided or of record which support the claims made. In conclusion, the Board finds that higher ratings are not warranted for the Veteran's laceration of the radial digital nerve of the right index finger, a C-section scar, right index finger scar residuals, a right index finger scar, and bilateral lower extremity varicose veins. The weight of the evidence is persuasively against the Veteran's claims. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable. The appeals are denied. REASONS FOR REMAND 1. A disability rating in excess of 30 percent for PTSD prior to February 4, 2022, and in excess of 70 percent thereafter, is remanded. 2. An effective date prior to February 4, 2022, for entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. 3. An effective date prior to February 4, 2022, for entitlement to Dependents' Educational Assistance benefits (DEA) is remanded The Veteran also seeks a higher rating for her service-connected PTSD, and earlier effective dates for the grants of TDIU and DEA benefits. After a review of the evidence of record, the Board concludes that these claims must be remanded. The Board observes that the Veteran did not receive an examination for her PTSD prior to April 2022. Given the relatively large gap between symptoms which would lead to a 30 percent rating and those that lead to a 70 percent rating as well as the Veteran's statements regarding her symptoms, the Board finds that the AOJ committed a pre-decisional duty to assist error in not seeking a retrospective opinion for the Veteran's service-connected PTSD. The Veteran's earlier effective date claims for TDIU and DEA are inextricably intertwined with the PTSD increased rating claim, however, the Veteran has argued that her TDIU effective date should be at least dated in May 2016, the month when she last performed substantially gainful employment. In the period prior to the current effective date of February 4, 2022, the Veteran does not meet the schedular requirements for TDIU. The Board cannot grant an extraschedular TDIU in the first instance but may determine whether referral for such consideration is warranted. Recent development from CAVC has held that, pursuant to Ray v. Wilkie, 31 Vet. App. 58, 66 (2019), the proper standard for the initial decision of whether to refer the issue of entitlement to a TDIU to the Director of Compensation under 38 C.F.R. § 4.16 (b) is whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Snider v. McDonough, No 19-7607 (Vet. App., Nov. 19, 2021). The Board finds there is sufficient evidence to substantiate a reasonable possibility that the Veteran became unemployable as a result of her service-connected disabilities and referral to the Director of Compensation and Pension Services is appropriate. The AOJ has not sought an opinion from the Director of Compensation and Pension Services to determine if TDIU is warranted on an extraschedular basis during the period in question. This constitutes pre-decisional duty to assist error requiring remanded. The matters are REMANDED for the following action: 1. A retrospective medical opinion should be obtained from an appropriate clinician addressing the severity of the Veteran's PTSD in the period prior to February 4, 2022. The examiner is asked to determine whether the Veteran's social and occupational impairment during this time. The examiner must include a discussion of the Veteran's lay statements. Should the clinician need to interview the Veteran, such an appointment should be arranged. 2. The AOJ must forward the Veteran's claims file to the Director of Compensation and Pension Services for consideration in the first instance of entitlement to TDIU on an extraschedular basis, and by extension DEA benefits for the period prior to February 4, 2022. JIMMY L. BARDIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, Counsel 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.