Reasons for BVA to Grant and Deny single issue?

[Confusedvet1]

Hello,

Years ago I filed a claim for a scar from surgery while in service. They granted the scar at 0% . I appealed it saying it was painful and should be rated at 10%. RO denied it so it went to the BVA who remanded it back to RO because the original exam wasn't proper and the VA didn't review records it had that were pertinent to claim. The BVA remand instructions were to review specific records and do a new exam.

I had a new exam and later received a letter from RO saying they granted me 10% but the effective date was the date of new exam. They said that is the first diagnosis of scar pain even though my records going back years show me complaining of pain which is why I suspect BVA told them to review those records. The RO decision letter stated the only used the new exam as evidence for their decision.

So it went back to the BVA and it seems they made a decision. I'm waiting on the letter but website said they granted my claim and also denied it? 

 

Any ideas on how this is possible?

 

I'm hoping it's a grant for earlier effective date and denial of an increase in excess of 10%? Anyone have any ideas on what they would grant and deny same claim?

[pacmanx1]

1 hour ago, Confusedvet1 said:

Does that mean RO is working on new effective date or did they forget to do something and I need to talk to someone to make it happen?

Congratulations on your Win!

Since the BVA granted your claim, your claim will be returned to the local VARO to implement their decision. That means you may have to have an updated C & P exam. This also means that the local VARO will have to assign an effective date and a rating percentage.  If you disagree with either of these, you will have to file a new appeal back to the BVA to get it/them corrected.

[Confusedvet1]

20 hours ago, pacmanx1 said:

Congratulations on your Win!

Since the BVA granted your claim, your claim will be returned to the local VARO to implement their decision. That means you may have to have an updated C & P exam. This also means that the local VARO will have to assign an effective date and a rating percentage.  If you disagree with either of these, you will have to file a new appeal back to the BVA to get it/them corrected.

Thank you! Now I just have to understand what the letter actually says lol. I get really confused when he talks about February 2020 to October 2020 as the only issue left and the end of the letter sounds like he is trying to tell RO to consider all the facts and imply my effective date should actually be 2013 timeframe. Or is that just wishful thinking on my part?

 

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.

[john999]

Your foot is in the door.  If your physical claims cause you pain and disability you can probably get a secondary claim for depression.  That secondary claim could be more than the original claim.  People ignore emotional consequences of being disabled.  That is leaving money on the table IMO.

[broncovet]

Congratulations!  I agree with John.  My son in law is 80 percent as he took shrapnel in the head and feet and was awarded a purple heart.  He refuses, however, to apply for tBI, or PTSD as he is afraid his guns will be taken away.  

Its crazy, but remember you are dealing with a tbi/PTSD Vet, so its sometimes like trying to reason with a drunk.  Its very sad, because my daughter could get DIC when he passes, but his stubborness prevents it.  Even worse, his only daughter would be eligible for DEA to go to college if he persued his TBI/PTSD, but he wont.  

You can lead a horse to water, but you cant make him drink.  

He is leaving money on the table now, and later for his family.  I actually understand why.  He has had 8 step fathers and no longer speaks to his own mother.  

I was blessed with a wonderful mom and Dad, and learned to care for my family and others.  He does seem to care about his wife (my daughter) and his daughter, but does not seem to "get" how to "show" you care about your family completely.  

While he calls me "DAD", as Im the closest thing to a father for him, I never met him until he was close to 40.  I am actually amazed he has done as well as he has, considering family background.  My daughter thinks its in no small part due to my influence on him.  He pretty much thinks Im a genius, as I pretty much know how to do everything or can figure it out.  I put up a fence, installed a new faucet, and dozens of other things that he had no idea how to do.  My father taught me.  My father also taught me to help those less fortunate than yourself.  

[Fat]

ConfusedVET, I would like to chime in.

I would review the entire rating criteria for scars.

Pain is one residual for scars.

If you had surgery, several of the other criteria might also fit too.

I would visit a orthopedic wrist doctor or a skin specialist and explain to them the surgery on active duty.

I also would ask them to opinion on the scar based on the other rating criteria for scars.

 

Pain is one rating criteria, but you should allow a doctor to offer opinion on all scar rating criteria.

[Buck52]

broncovet   I don't think the VA can make your son-in-law give up his guns if he is 70% or below on a mental health rating.....they can ask him to give them to a family member not living with him, but legally he should be able to keep his firearms, also depending on what state he lives in, I think there's a law if he was to go purchase a firearm they are required to do background checks  if he has been diagnosed with MENTAL PROBLEMS it depends on how severe the symptoms are....there are some people out there that do have server meatal problems and still buy guns.   with covid..>  business's are slow  and they will do what it takes to make a living. ...>unless the VA proves he is incompetent

The VA’s definition of mental incompetency can be found at 38 CFR 3.353 and states “A mentally incompetent person is one who because of injury or disease lacks the mental capacity to contract or to manage his or her own affairs, including disbursement of funds without limitation.”

The Brady Act of 1993, Public Law (PL) 103-159, prohibits the sale of firearms to certain individuals, including beneficiaries the VA determines are incompetent. In compliance with this act, VA reports the names of incompetent beneficiaries to the Federal Bureau of Investigations (FBI), which then adds the names to a database called the National Instant Criminal Background Check System (NICS). Gun dealers must check NICS for the name of a potential buyer before selling him/her a firearm.

It’s important for all Veterans to check their local gun laws regarding who can and can’t own a gun. There are no universal gun laws. So, the criteria to own a gun in West Virginia may be different than that of North Carolina. Just be careful of where you obtain your information.

Seeking treatment for PTSD can make a big difference in the lives of Veterans. While medication helps many, it may not work for you. Perhaps you will benefit better from an alternative treatment. Many Veterans find relief by practicing yoga, riding motorcycles, playing the guitar, or even going to the shooting range.

Normally a Veteran is trained in gun safety and how to clean and store weapons

A lot of miss conceptions out. Example  a Veteran can have a PTSD DIAGNOSE AT 30% AND HAVE OTHER SEPERATE RATINGS THAT ADD UP TO 100%  THIS DON'T MEAN HE IS RATED 100% FOR PTSD. ect,,,ect,,,,