Citation Nr: 1736556	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  09-30 456	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to a higher initial rating for a left calf scar, evaluated as noncompensable from November 1, 2007 to September 17, 2013, and as 20 percent disabling thereafter.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

D. J. Drucker, Counsel


INTRODUCTION

The Veteran had active military service from October 1987 to October 2007.

This case initially came to the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office(RO) in Salt Lake City, Utah, that granted service connection for lumbar strain (back), cervical spine strain (cervical spine), left and right shoulder tendonitis (left and right shoulder), irritable bowel syndrome (IBS), and left calf scar disabilities, that were assigned initial 20 percent, 10 percent, 10 percent, and noncompensable ratings, respectively, from November 1, 2007.  Jurisdiction of this case is with the Houston, Texas, RO.

A February 2016 rating decision granted service connection for the sciatic and femoral nerves of the Veteran's left and right lower extremities, and radiculopathy of his left and right upper extremities, that were assigned 10 percent ratings from September 18, 2013.  The Veteran's ratings for his bilateral upper and lower extremity radiculopathy are part and parcel of his increased rating claims for his back and cervical spine disabilities and, thus, they are on appell (but, as of this decision, and as noted below, are in remand status).  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2016).  The RO also granted a 10 percent rating for the Veteran's right shoulder disability, a 
30 percent rating for his IBS, and a 20 percent rating for his left calf scar, from September 18, 2013.

In a February 2017 decision, the Board granted an initial 10 percent rating for 
IBS from November 1, 2007, and denied a rating higher than 30 percent for that disability from September 18, 2013.  At that time, the Board remanded the Veteran's remaining increased rating claims, other than his left calf scar, to the Agency of Original Jurisdiction (AOJ) for further development.  All the requested development is not yet complete.  When the development is completed, the claims will be returned to the Board for appellate consideration.

The Board stayed consideration of the Veteran's claim for an increased initial rating for his left calf scar, pursuant to Johnson v. McDonald, 27 Vet. App. 497 (2016), 
a case that reversed and remanded an April 2014 Board decision that denied an increased rating for a skin condition under 38 C.F.R. § 4.118, Diagnostic Code 7806.  VA disagreed with the decision and appealed it to the United States Court of Appeals for the Federal Circuit (Federal Circuit).  VA also filed a motion with the United States Court of Appeals for Veterans Claims (Veterans Court) to stay the precedential effect of its decision in Johnson.  On October 6, 2016, the Veterans Court granted, in part, VA's motion to stay.  Johnson v. MacDonald, No. 14-2778, (Vet. App. Oct. 6, 2016).  As the Veteran's appeal contained a claim (increased initial rating for left calf scar) that could have been affected by resolution of VA's appeal in Johnson, the Board stayed any action in the matter in accordance with the Veterans Court's stay.  In July 2017, the Federal Circuit issued an opinion in Johnson v. Shulkin, that reversed the decision by the Veterans Court.  See Johnson v. Shulkin, 862 F.3d 1351, 1356 (Fed. Cir. 2017).  As the Veterans Court decision in Johnson was reversed, the stay on affected appeals was lifted.  The Board may now proceed to consider the Veteran's claim for an increased initial rating for his left calf scar.


FINDING OF FACT

Since the initial grant of service connection, the Veteran's left calf scar has been manifested by complaints of pain, numbness, and swelling, essentially commensurate with a painful and unstable scar.


CONCLUSIONS OF LAW

1.  From November 1, 2007 to October 22, 2008, the criteria for a 10 percent rating for a (an unstable) left calf scar have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.118, Diagnostic Code 7803 (2008), effective prior to October 23, 2008.

2.  From November 1, 2007 to October 22, 2008, the criteria for a 10 percent rating for a (painful) left calf scar have been met.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008), effective prior to October 23, 2008

3.  Since October 23, 2008, the criteria for a 20 percent rating, but not higher, for a left calf scar, have been met.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7804 (2016) (effective October 23, 2008).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

I. Duty to Notify and Assist

This appeal arises from disagreement with the initial rating following the grant of service connection.  The courts have held that once service connection is granted, the claim is substantiated, additional VCAA notice is not required, and any defect in the notice is not prejudicial.  Hartman v., Nicholson, 483 F. 3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  The Veteran has not alleged any notice error.

Regarding the duty to assist, the Veteran service treatment records were obtained.  All reasonably identified and available VA and non-VA medical records have been secured.  The Veteran underwent VA examinations in October 2007 and September 2013 and the examination reports are of record.  

As such, the Board will proceed to the merits.  

II. Facts and Analysis

Contentions

The Veteran contends that his left calf scar is manifested by intermittent pain on either side of the scar, numbness, and discoloration, with left calf swelling.  See 2/29/08 VBMS Correspondence; 2/29/08 VBMS Third Party Correspondence).  
He maintains that such symptoms warrant a higher (compensable) disability evaluation.

Laws and Regulations

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2016).  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27 (2016).  An unlisted disability will be rated under a disease or injury closely related by functions affected, symptomatology, and anatomical location.  38 C.F.R. § 4.20 (2016).

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 

In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Veterans Court noted that where, as here, the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required.  Id.   

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). 

Where there is a question as to which of two evaluations is to 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 (2016).  In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21 (2016). 

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).

The Veteran's statements describing the symptoms of his service-connected left calf scar disability are deemed competent regarding the observable manifestations.  However, these statements must be considered with the competent medical and other evidence of record and in conjunction with the pertinent rating criteria.

Pyramiding, meaning the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability.  38 C.F.R. § 4.14 (2016).  However, it is possible for a veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

Rating Criteria

VA received the Veteran's application (VA Form 21-526) on August 31, 2007 (the Veteran's last day of active service) and grant service connection for the left calf scar with an effective date of November 1, 2007 (the first day after discharge from active service).  Then, during the pendency of this appeal, VA promulgated new regulations for the evaluation of skin disorders, effective October 23, 2008.  
See 73 Fed. Reg. 54708 (Sept. 23, 2008) (codified at 38 C.F.R. § 4.118).  

When amended regulations expressly state an effective date and do not include any provision for retroactive applicability, application of the revised regulations prior to the stated effective date is precluded.  38 U.S.C.A. § 5110(g) (2016); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997); VAOPGCPREC 3-2000.  Therefore, as the amendments discussed above have a specified effective date without provision for retroactive application, the amendments may not be applied prior to their effective date.  As of the effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran.

The Board notes that the amendments were addressed in the June 2009 statement of the case.  Therefore, the Board may also consider these amendments without first determining whether doing so will be prejudicial to the Veteran.  Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).

Prior to October 23, 2008, under Diagnostic Code 7801, a 10 percent disability rating was warranted for scars other than the head, face, and neck that were deep or that caused limited motion in an area or areas exceeding 6 square inches (39 square centimeters (cm.)).  38 C.F.R. § 4.118, Diagnostic Code 7801 (effective prior to October 23, 2008).  Scars that were deep or caused limitation of motion, and were at least 12 square inches (77 square cm), warranted a 20 percent rating.  A deep scar was defined as one associated with underlying soft tissue damage.  Id. at Note (2) 

Under Diagnostic Code 7802, a 10 percent rating was warranted for superficial scars that did not cause limited motion, in an area or areas of 144 square inches (929 square cm.) or greater.  38 C.F.R. § 4.118, Diagnostic Code 7802 (effective prior to October 23, 2008).  A superficial scar was defined as one not associated with underlying soft tissue damage.  Id. at Note (2).

Under Diagnostic Code 7803, a 10 percent rating was warranted for superficial and unstable scars.  38 C.F.R. § 4.118, Diagnostic Code 7803 (2007).  An unstable scar is one where, for any reason, there was frequent loss of covering of skin over the scar.  Id. at Note (1).  [This DC was removed, effective October 23, 2008.]

Under Diagnostic Code 7804, a 10 percent rating was warranted for superficial scars that were painful on examination.  38 C.F.R. § 4.118, Diagnostic Code 7804 (2007).

According to Diagnostic Code 7805, in effect prior to October 2008, other scars were to be evaluated based on the limitation of function of the affected body part.  38 C.F.R. § 4.118, Diagnostic Code 7805 (2007).

Under the current rating criteria, effective October 23, 2008, under Diagnostic Code 7801, a 10 percent rating is warranted for scars that are deep and nonlinear in an area or areas exceeding 6 square inches (39 square centimeters).  Scars that are deep and nonlinear, and are at least 12 square inches (77 square cm.) but less than 
72 square inches (465 square cm.), warrant a 20 percent rating.  38 C.F.R. § 4.118, Diagnostic Code 7801 (2016).  38 C.F.R. § 4.118, Diagnostic Code 7801 (2016).

Under Diagnostic Code 7802, a 10 percent rating is warranted for scars that are superficial and nonlinear in an area or areas of 144 square inches (929 square centimeters) or greater.  38 C.F.R. § 4.118, Diagnostic Code 7802 (2016).

Under Diagnostic Code 7804 (2016), a 10 percent rating is warranted for one or two scars that are unstable or painful.  38 C.F.R. § 4.118, Diagnostic Code 7804.  Three or four scars that are unstable or painful warrants a 20 percent rating, and a 30 percent rating is warranted for five or more scars that are unstable or painful.  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Under Note (2), if one or more scars are both unstable and painful, 10 percent will be added to the evaluation that is based on the total number of unstable or painful scars.  

Under Diagnostic Code 7805 (2016), any other scars, including linear scars, are to rated based on any disabling effect(s) not considered in a rating provided under Diagnostic Codes7800-04 under an appropriate diagnostic code.  38 C.F.R. § 4.118.

Analysis

The Board finds that the Veteran provided credible and consistent evidence (such as in his February 2008 notice of disagreement and written statement, and the accompanying photographs he submitted) that his left calf scar was painful and essentially unstable since the initial grant of service connection.  See 2/29/08 VBMS Correspondence; 2/29/08 VBMS Photographs; 2/29/08 VBMS Third Party Correspondence.  Thus, with regard to applying the diagnostic criteria in effect at the time of the filing of his initial claim (in 2007), 10 percent ratings may be assigned under Diagnostic Codes 7803 and 7804 and, since October 23, 2008, 
a 20 percent rating under Diagnostic Code 7804 may be assigned.

Service treatment records include an August 2006 clinical entry indicating that the Veteran scraped the back of his lower left leg on the rear of a trailer eight weeks earlier.  See 7/21/15 STR Medical (2nd set), pages 10, 18.  He had a persistent open lesion with surrounding induration and mild pain.  The examiner noted a 1 cm. shallow, ulcerative lesion with 2 cm. of surrounding induration that was mildly tender with no drainage to the posterior left leg and normal color and pigmentation.  Id. at 19.  The assessment was a superficial injury-an abrasion of the leg that was infected and treated with antibiotics.

A March 2007 service treatment record shows that the Veteran was seen for evaluation of left leg pain for six months.  See 2/29/08 Medical Treatment Record Government Facility, pages 7, 9.  His left leg wound was healed and he had a 4 cm. brown scar over the lower third of his Achilles tendon with mild soft tissue swelling that was not tender or bruised.

An October 2007 VA examiner noted the Veteran's reported history of a scar from "deep tissue bruising" over the posterior left ankle in 2006 when a trailer hit the ankle.  There was no bleeding and "it looked like a scrape".  It still felt like it was swollen and was numb at the site of the scar.

The examiner noted that the Veteran had a level scar on his posterior left calf above the ankle.  Sensation was absent across the scar, that measured 5 cm. by 4 cm., with hyperpigmentation and abnormal texture of more than 6 square inches.  On examination, there was no tenderness, disfigurement, ulceration, adhesion, instability, tissue loss, inflammation, edema, keloid formation, and hypopigmentation.

In February 2008, the Veteran maintained that the October 2007 examiner erred in reporting an injury to his left ankle and stated that a trailer fell on his leg in 2006.  See 2/9/08 VBMS Third Party Correspondence.  The Veteran said that he told the examiner that "there was hardly any feeling in and around the scar."  He also said that swelling was still evident and his leg was disfigured and discolored around the injury site.  The Veteran had little feeling in the scar area and some residual, intermittent pain, not in the scar site, but on each side of it in the soft tissue area.  The Veteran indicated that, on the day of the examination, he did not have pain.

The Veteran provided eight color photographs of his left calf scar in February 2008.  The Board notes that the photographs reflect a large, noticeable, hyperpigmented scar, with visible swelling below it.  

The September 2013 VA examiner reported that the Veteran had a painful, large, scar on the left posterior leg at the top of the Achilles tendon above the left ankle.  The Veteran had no feeling in the scar itself but felt pain.  On examination, there was no pain to palpation to the top of the scar that elicited radiating pain to the surrounding tissue.  It was noted to be 3 cm in length and 6 cm in width for a total of 18 cm squared.  The examiner noted that there was one scar that was painful and unstable.  The functional impact, as described by the Veteran, was a pulling/stretching sensation in the area of the scar, if walking.

Given the evidence above, including the Veteran's credible reports and the color photographs he submitted, under the criteria effective prior to October 23, 2008, and with consideration of the need to rate all manifestations of the scar disability, separate 10 percent ratings for a painful and unstable scar under Diagnostic Codes 7803 and 7804, may be assigned from November 1, 2007 to October 22, 2008.  38 C.F.R. § 4.118, effective prior to October 23, 2008.  When determining whether separate evaluations are warranted, "[t]he critical element is that none of the symptomatology for any . . . conditions is duplicative of or overlapping with the symptomatology of the other . . . conditions."  Esteban, 6 Vet. App. 259, 262 (1994).  In short, "[i]f the appellant's symptoms are 'distinct and separate,' then the appellant is entitled to separate disability ratings for the various conditions."  Murray v. Shinseki, 24 Vet. App. 420, 423   (2011) (quoting Esteban, 6 Vet. App. at 262); 38 C.F.R. § 4.14.  As described above, VA's Schedule for the skin provided for separate ratings for an unstable scar and a painful scar.  38 C.F.R. § 4.118, DC 7803, 7804.

Throughout the appeal period, Veteran has essentially reported the same symptoms, including during the October 2007 and September 2013 VA examinations and in his written statements: that the area around his left calf scar was numb, and that he had lower calf swelling and intermittent pain.  The October 2007 examiner seemed to find the scar less disabling than the September 2013 examiner did.

While the October 2007 examiner noted that the Veteran's scar exceeded 6 square inches, it has never been reported to be a deep scar, or to have resulted in limited motion, such that a rating higher than 10 percent is warranted under Diagnostic Code 7801, effective prior to October 23, 2008.  The Board notes that consideration under Diagnostic Code 7802 would serve no benefit to the Veteran as the maximum rating allowed under that diagnostic code was 10 percent.  Further, the Veteran's left calf scar has not caused limitation of function of any affected part; therefore, a rating under Diagnostic Code 7805 is not warranted.

Under the current rating criteria, effective since October 23, 2008, as the Veteran's scar is not deep, a rating in excess of 10 percent is not warranted under Diagnostic Code 7801.  Consideration under Diagnostic Code 7802 is of no benefit to the Veteran as the maximum rating allowed under that diagnostic code is 10 percent.  

The September 2013 VA examination report (p. 14) reflects that the Veteran's left calf scar was both painful and unstable.  Such findings under Diagnostic Code 7804 (Note (2)) warrant a 20 percent rating.  As the Veteran's left calf scar does not involve five or more scars, a rating in excess of 20 percent is not warranted under Diagnostic Code 7804.  As for the revised Diagnostic Code 7805, the Veteran's scar has been evaluated under Diagnostic Codes 7801, 7802, 7803, and 7804, and there are no other disabling effects to be considered.

The Board concludes that, since October 23, 2008, the weight of the probative medical and other evidence of record supports a rating of 20 percent, but no higher, for the Veteran's left calf scar under the current rating criteria in effect since October 23, 2008.  The benefit of the doubt has been resolved in the Veteran's favor to this limited extent.  38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-54.  The Board notes that it has considered the appropriate skin diagnostic codes that were in effective prior to October 23, 2008, forward; however, it finds that a rating under the current DC 7804 is at least, if not more, favorable to the Veteran.  

The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences; for example, he is competent to report that his left calf scar causes pain and numbness.  See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994).  In fact, it is the credibility and continuity of the Veteran's reports of the symptoms he experienced that, in large part, resulted in the Board's grant, herein, of the separate 10 percent ratings for his left calf scar from November 1, 2008 to October 22, 2008 under Diagnostic Codes 7803 and 7804, see 38 C.F.R. § 4.118, effective in 2007 and prior to October 23, 2008, and the 20 percent evaluation for his left calf scar since October 23, 2008 under Diagnostic Code 7804, see 38 C.F.R. § 4.118, effective October 23, 2008.  38 U.S.C.A. § 5107(b).



(CONTINUED ON THE NEXT PAGE)


ORDER

A 10 percent rating for a (painful) left calf scar is granted, from November 1, 2007 to October 22, 2008.

A 10 percent rating for an (unstable) left calf scar is granted, from November 1, 2007 to October 22, 2008.

A 20 percent rating, but no higher, for a left calf scar, is granted from October 23, 2008.




____________________________________________
Paul Sorisio
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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