Complicated mess, need advice.

[Confusedvet1]

Hello,

I would really appreciate some guidance on next steps. Please let me know if I forget any useful information. I had 2 items go to the BVA. I had a claim for tenosynovitis of right hand/wrist/forearm which was originally denied connection and the other issue was for scar. 

The BVA said my tenosynovitis was service connected so that was taken care of.

 

The scar was remanded because of a incomplete c&p exam. Pretty sure when I filed NOD I also said I did not agree with the exam because I complained of scar pain and the examiner never mentioned it at all. So my initial rating for scar was 0%.

Like I said I filed NOD after initial 0% assignment. Couple weeks back they gave me another c&p exam like the BVA ordered. This time the examiner actually wrote down that I complained of pain so they rated me at 10%. However they changed my effective date from 2013 to Oct this year because the previous exam didn't mention pain

 

I'm obviously going to appeal this again but what do I say? What's best way to go about it?

 

Second part of question is about VA duty to assist. I had no idea there was a rating possible for hernias. Because of the surgery for tenosynovitis which is service connected and where the scar is which is service connected I have a hernia where muscle bulges through and raises the skin. That hernia has always been there. Should the VA have included that? Any examiner can see it clearly when looking at forearm and my last c&p examiner for scar said she would note it. Can I get that connected with a effective date of 2013 which is when the tenosynovitis is and my original 0% scar was?

[broncovet]

Congratulations!  The RO is (should be) an "implementation" of the board decision.  Have you received the board decision envelope?  

Go over it carefully, you have a mere 120 days to decide whether or not to appeal the BVA decision.  

Sometimes "even a board grant" needs to be appealed.  They may low ball, get the effective date wrong, deny other issues, etc.  

VA is famous for giving you 20 percent of what you ask for.  If you have the evidence, appeal a board decision "even if" part(s) of it are very favorable.  

Many times the VA "throws you a bone to shut you up", when you came to get a steak.  Dont gnaw on the bone, appeal and get your steak.  

Imagine going to a steak house, and order a tbone steak and they bring you the bone, with almost no meat on it.  Remember, you PAID for a steak...assuming, like me, you served your country well.  I served 4 years, and was awarded a good conduct medal.  I risked my life for this country..and even got injured.  (my leg was fractured), as well as they trashed my hearing by putting me near aircraft without hearing protection.  

I gave the military my very best, risked my life and limb, was promoted 4 times, and deserve the steak.  Im not settling for dog food when I paid for a steak.  The military paid me $110 per month (to start), while most of my friends who did not join earned about 10 times that in a job far less dangerous where they did not have to give up their family and friends for years.  

Our military sometimes uses civilians for positions often occupied by the military.  To get those civilians to do that job, often isolated from family in a dangerous country, expect 5 times what military gets paid to do the similar things.  

In other words, I risked my life and took a 90 percent pay cut to serve my country, and was promised a steak for doing that, not a bone.   

Edited May 21, 2021 by broncovet

[Confusedvet1]

I read the letter a bunch and it was confusing. I called Peggy and I recorded the call as well and I confirmed that the board did not give a specific effective date other than saying the one the VA gave me was wrong. So I agree completely with the decision and my rating so we just have to see if they get the effective date right this time.

This is my decision letter. I'm confused why they talk about February 2020 but at the end he seems to lay out a great case for an effective date back to 2013.

 

ORDER

 

Entitlement to an initial disability rating of 10 percent, but no higher, for surgical scar, right wrist status post tenosynovectomy for the period prior to October 15, 2020 is granted.

 

Entitlement to a disability rating in excess of 10 percent for surgical scar, right wrist status post tenosynovectomy for the period from October 15, 2020 onward is denied.

 

FINDINGS OF FACT

 

1. The evidence is at least in equipoise as to whether the Veteran's surgical scar, right wrist status post tenosynovectomy manifested as a painful scar for the period prior to October 15, 2020.

 

2. The weight of the evidence is against a finding that the Veteran's surgical scar, right wrist status post tenosynovectomy manifested as three or four unstable or painful scars for the period from October 15, 2020 onward.

 

CONCLUSIONS OF LAW

 

1. The criteria for entitlement to a disability rating of 10 percent, but no higher, for surgical scar, right wrist status post tenosynovectomy for the period prior to October 15, 2020 have been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.118.

 

2. The criteria for entitlement to a disability rating in excess of 10 percent for surgical scar, right wrist status post tenosynovectomy for the period from October 15, 2020 onward have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.118.

 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

 

The Veteran had active service in the Marine Corps from September 2003 to September 2007. These matters originate from a March 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that granted an initial noncompensable rating for surgical scar, right wrist status post tenosynovectomy (right wrist scar). The Veteran timely initiated and perfected an appeal of the initial rating assigned to his right wrist scar. The Veteran's October 2015 Form 9 reflects that he requested a hearing before a Board of Veterans' Appeals (Board) Veterans' Law Judge (VLJ); however, in May 2019 the Veteran, through his representative, communicated in writing that he desired to withdraw his hearing request.

 

The Board remanded the Veteran's right wrist claim in December 2019 for additional development. Specifically, the Board directed that the VA treatment records be obtained from VA medical facilities in Canandaigua, New York and Rochester, New York; and that the Veteran subsequently be afforded a VA examination to determine the current severity of his right wrist scar disability. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Updated VA treatment records from various VA facilities, including the Canandaigua, New York and Rochester, New York facilities, were associated with the claims file in June 2020, August 2020, and September 2020. The Veteran was afforded a VA examination in October 2020. The RO issued a Supplemental Statement of the Case (SSOC) in October 2020. The Board finds that there has been substantial compliance with its December 2019 remand directives.

 

The Board notes that while the March 2015 rating decision on appeal assigned an effective date in December 2014 for the grant of service connection for the Veteran's right wrist scar, that effective date has since been revised to February 18. 2013 by a June 2020 rating decision. An October 2020 rating decision granted the Veteran an increased rating for his right wrist scar, effective October 15, 2020, As the highest possible rating has not been assigned with respect to the period from October 15, 2020, onward, the appeal continues. See AB v Brown. 6 Vet App. 35 (1993). In light of the foregoing, the Board finds that the issues currently before it are entitlement to an initial disability rating for the Veteran's right wrist scar for the period from February 18, 2020, to October 14, 2020; and entitlement to a disability rating in excess of 10 percent for his right wrist sear for the period from October 15, 202,0 onward.

 

Entitlement to a disability rating of 10 percent, but no higher, for surgical scar, right wrist status post tenosynovectomy for the period prior to October 15, 2020 is granted; entitlement to a disability rating in excess of 10 percent for surgical scar, right wrist status post tenosynovectomy for the period from October 15, 2020 onward is denied.

 

Disability ratings are determined by applying the criteria set forth in the VA

 

Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155, 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10; see also Schafrath v Derwinski, 1 Vet. App. 589 (1991).

 

In adjudicating claims for VA benefits, the burden of proof only requires an "approximate balance" of the evidence for and against a claim. 38 U.S.C. § 5107 (b), 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). This low standard of proof is "unique" to the VA adjudicatory process, and "the nation, 'in recognition of our debt to our veterans,' has taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). In evaluating a claim for disability benefits, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154(a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. Laypeople are competent to report symptoms and experiences observable by their senses, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).

 

The Veteran's right wrist scar is currently rated under diagnostic code 7805, which refers to diagnostic codes 780, 7801, 7802, and 7804. Diagnostic code 7800 applies to scars of the head, face or neck; diagnostic code 7801 refers to scars associated with underlying soft tissue damage; diagnostic code 7802 applies to scars with an area of 929 sq. cm. or greater; and diagnostic code 7804 applies to scars which are unstable or painful. The Veteran's right wrist scar is not a scar of the head, face, or neck. As discussed below, there is no evidence reflecting underlying soft tissue damage, or that the Veteran's scar is of an area 929 sq. cm. or greater. Accordingly, the Board finds that diagnostic code 7. 804 ("Scar(s), unstable or painful") is the appropriate code under which to rate the Veteran's right wrist scar.

 

Under diagnostic code 7804, a disability rating of 10 percent is warranted when there are one or two scars that are unstable or painful; progressively higher disability ratings are warranted where there are 3 or more scars that are unstable or painful. A February 2015 VA examiner documented no pain or instability of the Veteran's right wrist scar, and documented the Veteran's scar as being 13 linear cm. In March 2015 a VA treating provider documented the Veteran's complaint of pain at the area of his right wrist scar. In his March 2015 written Notice of Disagreement (NOD) to VA, the Veteran stated that his right wrist scar was painful. In his October 2015 Form 9, the Veteran again reported that his scar was painful, particularly after using his hand and/or wrist to perform tasks such as assembling things or using hand tools. In November 2015 a VA treating provider documented the Veteran's report that he "still has problems with scar tissue." The October 2020 VA examiner documented the Veteran's report that his right wrist scar was intermittently painful and exacerbated by repetitive movements. The October 2020 VA examiner measured the Veteran's scar as 9 cm. by .5 cm., with additional swelling measuring 5.5 cm. by 3 cm. The examiner documented the Veteran's scar as being tender to palpation, but noted that the scar was not unstable, and that there was no underlying soft tissue damage.

 

The evidence does not reflect the presence of any scar other than the right wrist scar associated with the Veteran's tenosynovectomy. The evidence does not reflect any scars with an area greater than 929 sq. cm or associated with underlying soft tissue damage. The evidence is at least in equipoise as to whether the Veteran's right wrist scar has manifested as a painful scar throughout the period on appeal. Accordingly, and in light of VA's obligation to give the benefit of the doubt to the Veteran, the Board finds that the criteria for an initial disability rating of 10 percent, but no higher, for the period prior to October 15, 2020 have been met, and the same is hereby granted. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.74.118. The Board further finds that the criteria for a disability rating in excess of 10 percent for the period from October 15, 2020 onward have not been met, and the same is hereby denied. Id.