Citation Nr: 1754169	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  12-10 465	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1. Entitlement to an initial compensable rating for right wrist scarring.

2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

P. Saindon, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Navy from June 1979 to February 2002.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2011 and March 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. 

The Veteran testified before the undersigned Veterans Law Judge at a travel Board hearing in April 2014.  The transcript is of record.

In February 2015, the Board remanded the issue of entitlement to a separate rating for right wrist scarring and TDIU.  The RO granted the separate rating in the March 2016 rating decision and assigned a non-compensable evaluation, effective March 1, 2012.  The RO then issued a statement of the case denying a compensable rating for scarring and denying TDIU.  Although normally the grant of service connection is considered a complete grant for purposes of a prior notice of disagreement, the Veteran has disagreed with the rating through his representative's informal hearing presentation, the RO has issued a statement of the case, and VA has treated the case as being on appeal.  See Percy v. Shinseki, 23 Vet. App. 37, 43 (2009).  The matters have accordingly been returned for adjudication.

The Veteran submitted a Privacy Act request in July 2017.  Although VA is continuing to work on the request, due process does not require delaying this decision until after the Veteran receives the requested documents because the request was explicitly only for medical records pertaining to the Veteran's left ankle.  These records bear no relationship to the Veteran's right wrist scarring.  They could potentially relate to the Veteran's claim for TDIU, but as that claim is being granted, the Veteran is not prejudiced.


FINDINGS OF FACT

1.  The Veteran's right wrist scars are superficial, linear, not painful, not unstable, less than 6 inches in total area, and do not contribute to any functional loss.

2. The Veteran's service-connected disabilities render him unable to obtain and maintain substantial gainful employment.


CONCLUSIONS OF LAW

1. The criteria for a compensable rating for right wrist scarring have not been met.  38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.118 (2017).

2. The criteria for TDIU have been met.  38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide the reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the veteran or on his behalf.  Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.
 
The Board must consider the competency, credibility, and weight of all evidence, including the medical evidence, to determine its probative value.  The Board must then account for evidence that it finds persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the claimant.  Timberlake v. Gober, 14 Vet. App. 122, 129 (2000).  Equal weight is not accorded to each piece of evidence contained in the record and every item of evidence does not have the same probative value.  If the evidence weighs in favor of the veteran or is in relative equipoise, the veteran will prevail.  On the other hand, if the preponderance of the evidence is against the veteran, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Increased Rating

Disability ratings are based on VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4.  The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations.  38 U.S.C. § 1155.  The Veteran's entire history is reviewed when making disability evaluations.  38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation.  38 C.F.R. § 4.7.  
 
In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found are warranted, a practice of assigning ratings referred to as "staging the ratings."  Fenderson v. West, 12 Vet. App. 119, 126 (1999).
 
It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present.  38 C.F.R. § 4.2.  

Scarring may be rated under one or more of Diagnostic Codes 7800 through 7805.  38 C.F.R. § 4.118.  Diagnostic Code 7800 applies only to scarring of the head, face, or neck.  Diagnostic Code 7801 applies only to scarring that is deep and non-linear.  Diagnostic Code 7802 applies only to scarring that is superficial and non-linear.  Diagnostic Code 7803 is not currently in use.  Diagnostic Code 7804 applies only to scars that are unstable or painful.  Diagnostic Code 7805 applies to all scarring, but instructs the rating official to evaluate any disabling effects under an appropriate diagnostic code.

The Veteran was afforded a VA examination in September 2008.  The examiner reported that the Veteran had a longitudinal scar of the ulnar side of the right wrist, proximal to the ulnar styloid.  The scar measured 1.5 mm by 1 mm and was slightly red but otherwise normal.  There was mild diffuse tenderness, no adherence to the underlying tissue and no ulcerations or breakdowns.  The examiner opined that there was no limitation of function by the scar.

The Veteran was afforded a VA wrist examination in August 2012.  The examiner reported that the Veteran's wrist scars were not painful, unstable, or greater than six inches in total area.

The Veteran was afforded a VA wrist examination in August 2013.  The examiner reported that the Veteran's wrist scars were not painful, unstable, or greater than six square inches in area.  The scars were superficial and linear.  There were a 5 cm, a 1.5 cm, and two 1 cm scars.

The Veteran testified in April 2014 that the scars were not painful to the touch and did not break open or ulcerate, but his wrist area would hurt if pushed on with pressure.  

The Veteran was afforded a VA scar examination in April 2015.  The examiner found that the Veteran's right wrist scars were superficial, linear, not painful, not unstable, and less than six square inches in total area.  The examiner opined that the scars did not by themselves cause any limitation of function.

The Veteran's scarring is not of his head, face or neck, and so Diagnostic Code 7800 does not apply.  The Veteran's scars are not non-linear, and so Diagnostic Codes 7801 and 7802 do not apply.  The weight of the evidence, including several VA examinations and the Veteran's testimony, indicate that the scars are not painful or unstable, and so Diagnostic Code 7804 does not apply.

The only diagnostic code that applies for the Veteran's scars is Diagnostic Code 7805.  This code, however, requires a rating based upon the disabling effects of the scarring.  The VA examiners opined that the scars themselves did not have any functional impact on the Veteran.  In other words, there is no disabling effect.  The medical records and the Veteran's testimony do not contradict these opinions.  A compensable rating for the wrist scars must be denied.

The Veteran did testify to wrist pain, and it is not in question that the Veteran's wrist fracture residuals cause functional loss.  This functional loss, however, is not attributable to the scarring and has been rated separately under different diagnostic codes.  It cannot support an increased rating for the scarring as well.

As the weight of the evidence is against an increased rating, the benefit-of-the-doubt doctrine does not apply.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53.

TDIU

VA will grant TDIU when the evidence shows that the veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16.  TDIU is to be determined "without regard to the non-service-connected disabilities or [the veteran's] age."  Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992).  Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that: (1) if there is only one such disability, the disability shall be ratable at 60 percent or more, or (2) if there are two or more service-connected disabilities at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more.  38 C.F.R. § 4.16(a).

Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other veteran rated at the same level.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  "The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment." Id.  "TDIU is to be awarded based on the 'judgment of the rating agency' . . . ."  Floore v. Shinseki, 26 Vet. App. 376, 381 (2013).

The Veteran is rated 30 percent disabled for peripheral vestibulopathy, 30 percent disabled for right wrist fracture residuals, 20 percent disabled for right trapezius and shoulder strain, 20 percent disabled for left shoulder anteroinferior subluxation, 20 percent disabled for cervical spine degenerative disc disease, 10 percent disabled for left ankle strain residuals, 10 percent disabled for tinnitus, 10 percent disabled for scars, lipomas of the lumbosacral spine, 10 percent disabled for right calf muscle herniation, and non-compensable for bilateral hearing loss, gastroesophageal reflux disease, left inguinal hernia, and right wrist scars for a total 90 percent combined disability rating.  

Although the Veteran does not have at least one injury rated at 40 percent, for purposes of TDIU, disabilities of the upper or lower extremities are to be considered a single disability.  Combining the right wrist fracture and the right trapezius and shoulder strains alone meets the 40 percent requirement.  The Veteran satisfies the rating requirements for a schedular TDIU.

The Veteran was previously denied TDIU in September 2006.  The RO noted that the Veteran's shoulders may have limited some jobs, but that the Veteran led an active lifestyle doing mechanical work and property maintenance.  

The August 2012 VA examiner opined that the Veteran's wrist would impact him in any occupation that required the use of his right hand and wrist all the time, such as typing, driving, and repetitive tool use.

The August 2013 VA examiner opined that the Veteran would be unable to perform his usual occupation of welder and firefighter, but that no limitations were present that would preclude gainful employment if there were reasonable accommodations for the wrist condition.  The Veteran was noted to be right handed.

At the hearing, the Veteran testified that his he could not work due to his service-connected disabilities.  He had been a mechanic and welder and he could no longer do that due to his right wrist disability.  He last worked in 2008.  According to the Veteran, anything that required flexion of the wrist was a problem for him.  He could not swing a golf club, rake leaves, or lift weights.  He could fish, but only for a few minutes at a time.  He could not type in the normal fashion or write in cursive.  

The weight of the evidence is in favor of a finding of unemployability.  The Veteran was found employable in September 2006, but the evidence indicated that he then stopped working in 2008.  The record also indicated that his disabilities have worsened since 2006 as he testified that he could no longer do the active lifestyle activities that the RO cited to deny the previous TDIU claim in 2006.  

Although the 2013 examiner opined that the Veteran could do some work if accommodations were made for his wrist, the Veteran's education, training and abilities do not lend themselves to such activities.  Even sedentary work, such as a truck driver would require more use of his hand and wrist than he could likely handle.  Given the benefit of the doubt, the Veteran is unemployable due to service-connected disabilities.

						(CONTINUED ON NEXT PAGE)


ORDER

Entitlement to a compensable rating for right wrist scarring is denied.

Entitlement to TDIU is granted, subject to controlling regulations applicable to the payment of monetary benefits.



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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