Citation Nr: 1802026 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 11-19 519 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating in excess of 10 percent for herniated nucleus pulpous with degenerative disc disease (DDD). 2. Entitlement to an increased rating in excess of 10 percent prior to May 3, 2016, and in excess of 20 percent therefrom for radiculopathy of the left lower extremity. 3. Entitlement to a compensable rating for residual abdominal scar, status post laparotomy, from shell fragments. 4. Entitlement to a compensable rating for residual scars to the left leg, back, and arms, from shell fragments. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1970, from January 1971 to October 1974, and from October 1978 to January 1986, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In July 2011, the Veteran filed a substantive appeal (via a VA Form 9). On his VA Form 9, the Veteran checked the box indicating his desire to testify at a travel Board hearing. It is unclear whether the Veteran did, in fact, subsequently withdraw his hearing request. A hearing clarification letter was sent to the Veteran and his representative. In December 2017, the Veteran, through his representative, notified VA that he wished to withdraw his hearing request. Accordingly, the hearing request is deemed withdrawn. A November 2016 rating decision granted an increased 20 percent rating for radiculopathy of the left lower extremity effective May 3, 2016. As this is not the maximum disability rating possible, the appeal remains in appellate status and is properly before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Additionally, the November 2016 rating decision granted service connection for radiculopathy of the right lower extremity effective May 3, 2016. Neither the Veteran nor his attorney has expressed disagreement with, or otherwise presented argument concerning, the effective date assigned for radiculopathy of the right lower extremity. As such, the Board will not further address this issue in its decision. Lastly, although a review of the record reflects additional medical evidence was added to the record subsequent to a November 2016 supplemental statement of the case without waiver of Agency of Original Jurisdiction consideration, the evidence provided is essentially cumulative of the information previously considered. As such, no further action is required. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). FINDINGS OF FACT 1. For the entirety of appeal, the Veteran's back disability manifested by forward flexion limited to 68 degrees, at worst, extension to 20 degrees, lateral flexion to 30 degrees and lateral rotation to 20 degrees, bilaterally, and muscle spasms not resulting in abnormal gait, which is akin to limitation of motion warranting a 10 percent, but no higher, rating for back disability. 2. The Veteran has not had any incapacitating episodes of intervertebral disc syndrome during the past 12 months that required bed rest prescribed by a physician and treatment by a physician. 3. Prior to May 3, 2016, the Veteran's radiculopathy of the left lower extremity manifested by pain, paresthesia, numbness, and weakness akin to moderate incomplete paralysis of the sciatic nerve. 4. For the entirety of appeal, the Veteran's residual abdominal scar, status post laparotomy, manifested by a linear, superficial scar which was neither unstable nor painful. 5. For the entirety of appeal, the Veteran's residual scars to the left leg, back, and arms manifested by a linear, superficial scars which were neither unstable nor painful. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent rating for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1-4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2017). 2. Prior to May 3, 2016, the criteria for an increased disability rating of 20 percent, but no higher, for the Veteran's service-connected radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, Diagnostic Code 8520 (2017). 3. For the entirety of appeal, the criteria for an increased disability rating in excess of 20 percent for the Veteran's service-connected radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, Diagnostic Code 8520 (2017). 4. The criteria for a compensable rating for residual abdominal scar, status post laparotomy, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.118, Diagnostic Codes 7800-7805 (2017). 5. The criteria for a compensable rating for residual scars to the left leg, back, and arms, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.118, Diagnostic Codes 7800-7805 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA's duty to notify was satisfied by a letter dated in February 2009. See 38 U.S.C. § 5103 (2012); 38 C.F.R. § 3.159 (2017). The duty to assist the Veteran has also been satisfied in this case. Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claims in this Board decision. II. Increased Rating Legal Principles A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred in or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012) The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). This is because the effective date of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year of such date. 38 U.S.C. § 5110(b) (2). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. For clarity, the rating criteria for each adjudicated issue will be discussed as applicable. A. Herniated nucleus pulpous with degenerative disc disease Legal Principles When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The Veteran's lumbar spine disability is currently evaluated at 10 percent disabling under the General Rating Formula for Disease and Injuries of the Spine, Diagnostic Codes 5235-5243. Under Diagnostic Code 5242, a 10 percent rating is warranted where there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion in the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more body height. A 20 percent rating is warranted where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal contour such as scoliosis. A 40 percent rating is warranted where there is forward flexion of the thoracolumbar 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted where these is unfavorable ankylosis of the entire spine. Note (2) provides that normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. Note (5) provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Additionally, Intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. According to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating requires evidence of incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. A 20 percent rating requires evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating requires incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. As indicated by Note (1), for purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Factual Background The relevant evidence of record consists of post-service VA and private medical treatment records, and lay statements by the Veteran and other sources. Collectively, VA and private treatment records dated between December 2004 and June 2017 reflect a history of low back pain with symptoms indicative of sciatica. Treatment records dated in August 2011 reflect the Veteran presented with back pain. At that time, physical examination revealed normal alignment of the lumbar spine, normal gait, and full range of motion without pain. The Veteran denied tenderness, swelling, instability, weakness, and/or atrophy. The Veteran was diagnosed with lumbar disc herniation, lumbar spondylosis, and lumbar stenosis. Treatment records are otherwise negative for any information pertinent to the Veteran's claim. Report of the March 2009 VA examination reflects, in pertinent part, a history of pain in the Veteran's back in and since service. Physical examination was negative tenderness or spasms of the lumbosacral spine. The Veteran's gait was noted as abnormal, i.e., the left leg appeared to give way when walking. Motor strength, sensory, and reflex examinations were noted as normal. Range of motion testing revealed forward flexion to 85 degrees, extension to 30 degrees, lateral flexion to 20 degrees, bilaterally, right lateral rotation to 25 degrees, and left lateral rotation to 20 degrees, without pain. Repetitive-use testing revealed forward flexion to 68 degrees and extension to 30 degrees, with slight pain in the left sacral area. The Veteran was diagnosed with DDD and spondylosis of the lumbar spine. Report of the May 2016 VA examination reflects, in pertinent part, the Veteran's reports of daily back, which radiates to the right leg. The Veteran described his functional loss as being unable to "lift[] over 40 lbs." The Veteran also reported flare-ups. Upon questioning, the Veteran conveyed that he experienced flare-ups of pain with spasms over the past 6 months, which occur weekly and last approximately less than one hour. The examiner was unable to provide an opinion regarding any significant limit of functional ability during flare-ups due to pain without resorting to mere speculation. Physical examination was negative for any tenderness, guarding, muscle spasms, or ankylosis of the spine. Diagnostic testing was negative for any findings of vertebral fracture with loss of 50 percent or more of height. Motor strength and sensory examinations were noted as normal. The Veteran was positive for IVDS; however, was not found to have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Range of motion testing revealed forward flexion to 80 degrees, extension to 20 degrees, lateral flexion to 30 degrees and lateral rotation to 20 degrees, bilaterally, with pain exhibited on flexion and extension. No additional functional loss was noted after repetitive use-testing. The Veteran was diagnosed with degenerative joint disease, IVDS, and spinal stenosis of the lumbar spine. Analysis Based on a review of the evidence, the Board finds that an increased disability rating in excess of 10 percent for the Veteran's service-connected back disability is not warranted because the Veteran does not satisfy criteria for a higher rating under the applicable diagnostic code at any during the appeal period. In making this finding, the Board accords significant probative weight to the VA examinations provided in March 2009 and May 2016. The record reflects the examiners reviewed the Veteran's pertinent medical history, documented his current complaints, and rendered findings and diagnoses consistent with the remainder of the evidence of record, and therefore, the examinations are adequate for adjudication purposes. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Board is cognizant of Correia v. McDonald, 28 Vet. App. 158 (2016), wherein the United States Court of Appeals for Veterans Claims (Court) elaborated on VA examination requirements with respect to joint testing for pain pursuant to 38 C.F.R. § 4.59. To that extent, the Board has reviewed the May 2016 VA examination report for the Veteran's lumbar disability and finds that it is consistent with the intent of § 4.59 for the reasons discussed below. Moreover, retroactive motion testing cannot be performed to determine the range of motion in the manner now required by Correia. An examiner's assessment of the range of motion findings required by that case would, at this point, amount to pure speculation on the part of any examiner. As previously mentioned, the Veteran's lumbar spine disability is currently rated as 10 percent disabling. A next-higher 20 percent rating is warranted where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal contour such as scoliosis. Here, the March 2009 VA examination measured forward flexion to, at worst, 68 degrees with pain, extension to 30 degrees, lateral flexion to 20 degrees, bilaterally, right lateral rotation to 25 degrees, and left lateral rotation to 20 degrees. The Veteran's gait, albeit abnormal, was seemingly attributed to his radicular symptoms of the left lower extremity, rather than any guarding or muscle spasms. The examiner specifically noted there was no evidence of tenderness or muscle spasms. Likewise, the May 2016 VA examination measured forward flexion to 80 degrees, extension to 20 degrees, lateral flexion to 30 degrees and lateral rotation to 20 degrees, bilaterally, with pain exhibited on flexion and extension. No additional functional loss was noted after repetitive use-testing. The Veteran was diagnosed with IVDS at the May 2016 VA examination; however, the examiner noted the Veteran has not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Diagnostic testing was also performed and found to be negative for any vertebral fracture with loss of 50 percent or more of height. The Board notes the Veteran also reported flare-ups. Report of the May 2016 VA examination reflects that upon questioning Veteran conveyed that he experienced flare-ups of pain with spasms over the past 6 months, which occur weekly and last approximately less than one hour. However, the only functional loss described by the Veteran was being unable to "lift[] over 40 lbs." (Parenthetically, the Board notes that any symptoms and/or sensations of burning and/or tingling reflected by the record are contemplated in the Veteran's separate ratings for radiculopathy). Based on a review of the Veteran's pertinent medical history and the information procured by the Veteran, the examiner indicated she was unable to provide an opinion regarding any significant limit of functional ability during flare-ups without resorting to mere speculation. In doing so, the examiner alluded to the lack of any objective evidence of increased symptoms and limitations other than the Veteran's report of being unable to lift more than 40 lbs. The Board is satisfied that the examiner took reasonable steps to procure and was sufficiently informed of any additional or increased symptoms and limitations experienced by the Veteran during flare-ups. See Sharp, supra; see generally Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Moreover, the Board notes that the Veteran's reported limitation during repetitive-use/flare-ups is not of such severity to warrant a higher rating. The Board has also considered the Veteran's statements regarding symptoms such as the pain. The Board notes the Veteran is clearly competent to report observable symptomatology. However, as to the specific issue in this case, questions of nature and medical severity fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As such, to the extent the Veteran is addressing questions of the medical nature and severity of his back disability, the Board finds his statements are not competent lay evidence. Notwithstanding, the probative medical evidence outweighs any competent lay statements in this case. In sum, during the entirety of the appeal period, the evidence of record demonstrates that the Veteran has experienced limited range of motion in the back with flexion limited to 68 degrees, at worst, extension to 20 degrees, and lateral flexion to 30 degrees and lateral rotation to 20 degrees, bilaterally, which is akin to limitation of motion warranting a 10 percent, but no higher, rating for back disability. Although there is some evidence of muscle spasms, there this no evidence demonstrating muscle spasms of such severity resulting in an abnormal gait or spinal contour. Additionally, there is no evidence demonstrating that any increased rating under the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59 are warranted. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for a rating higher than 10 percent, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the appeal is denied. B. Radiculopathy, left lower extremity Legal Principles The Veteran's radiculopathy of the left lower extremity is currently rated under Diagnostic Code 8520 for paralysis of the sciatic nerve at 10 percent disabling prior to May 3, 2016, and increased to 20 percent therefrom. Under Diagnostic Code 8520, a 10 percent rating is warranted where there is evidence of mild incomplete paralysis of the sciatic nerve; a 20 percent rating is warranted where there is evidence of moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is warranted where there is evidence of moderately-severe incomplete paralysis of the sciatic nerve; and a 50 percent rating is warranted where there is severe incomplete paralysis with marked muscular atrophy of the sciatic nerve. A highest 80 percent rating requires complete paralysis of the sciatic nerve, i.e. the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. The term "incomplete paralysis" indicates a degree of impaired function substantially less than the type of picture for "complete paralysis" given for each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The terms "mild," "moderate," "moderately-severe," and "severe" as used under Diagnostic Code 8520 are not defined in the Schedule. Rather than applying a mechanical formula to determine when symptomatology is "mild" or "moderate" etc., the Board must evaluate all of the evidence to ensure an "equitable and just" decision. 38 C.F.R. § 4.6. Factual Background The relevant evidence of record consists of post-service VA and private medical treatment records, and lay statements by the Veteran and other sources. Report of the March 2009 VA examination reflects, in pertinent part, the Veteran's statements regarding experiencing pain radiating down his bilateral lower extremities, precipitated by walking, standing, or sitting. The Veteran also reported a burning sensation when he stands. The Veteran denied any other neurological abnormalities. The examiner noted the Veteran does not need an assistive device, e.g., cane, to ambulate. However, the Veteran reported his "left leg is weak and [occasionally] gives way." The Veteran indicated conservative treatment with medication, i.e., Motrin, which helps alleviate the pain in his lower extremities. An electromyography (EMG) and nerve conduction study (NCS) of the Veteran's bilateral lower extremity was performed and revealed electrophysiological evidence for left sural neuropathy. The Veteran was diagnosed with left sural neuropathy. Collectively, VA and private treatment records dated between December 2004 and June 2017 reflect ongoing treatment for radiculopathy of the left lower extremity. For instance, treatment records dated in August 2011 reflect the Veteran presented with pain described as a constant burning radiating down, in pertinent part, his left lower extremity, which is precipitated by prolonged standing, sitting, and/or walking. The Veteran also reported numbness and pain-related insomnia. The Veteran was diagnosed with lumbar radiculopathy. Report of the May 2016 VA examination reflects, in pertinent part, the Veteran was found to experience radicular pain and/or symptoms. Specifically, the Veteran was found to experience, in pertinent part, moderate intermittent pain and numbness, and severe paresthesia of the left lower extremity, characterized as moderate incomplete paralysis of the sciatic nerve. Physical examination revealed normal muscle strength, decreased sensation in the Veteran's feet, and hypoactive reflexes in his ankles. Analysis Based on a review of the evidence, the Board finds that a disability rating of 20 percent, but no higher, for the Veteran's service-connected radiculopathy of the left lower extremity is warranted for the entire period on appeal. In making this finding, the Board finds particularly persuasive the VA examinations and medical treatment records reflecting persistent pain, paresthesia, numbness, and occasional weakness in the left lower extremity. In particular, treatment records dated in August 2011 reflect the Veteran presented with pain described as a constant burning radiating down his left lower extremity, which is precipitated by prolonged standing, sitting, and/or walking. The Veteran also reported numbness and pain-related insomnia. Of note, the May 2016 VA examination noted the presence of such symptoms with similar duration, frequency, and severity. At that time, the Veteran's radiculopathy was characterized as moderate incomplete paralysis of the sciatic nerve. In light of the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that an increased 20 percent rating is warranted prior to May 3, 2016. The Board has also considered whether a disability rating in excess of 20 percent is warranted for any period on appeal, and finds that it is not. The Veteran reports experiencing pain, paresthesia, numbness, and occasional weakness in the left lower extremity. Objectively, however, he does not experience weakness of such severity or other indicia of more than moderate paralysis. The May 2016 VA examination noted normal motor strength. With the exception of the decreased sensation in his feet and hypoactive reflexes in his ankles, the Veteran's sensory and reflex examinations were overwhelmingly normal. The examiner also noted the absence of other neurologic impairment. In light of the above, the Board finds that the Veteran's symptoms are primarily sensory in nature with limited loss of function. As noted, when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent. C. Residual Scars Legal Principles The Veteran's service-connected abdominal scar, status post laparotomy, and residual scars to the left leg, back, and arms from shell fragments are currently each rated as noncompensable under Diagnostic Code 7805. Under Diagnostic Code 7805, the rater is directed to consider the applicability of Diagnostic Codes 7800-7804. As a preliminary matter, the Board notes that Diagnostic Code 7800 (pertaining to scars of the head, face, or neck) is not applicable in this case. Under Diagnostic Code 7801 (scars-other than those of the head, face, or neck-that are deep and nonlinear) a 10 percent rating is warranted if the area or areas affected is/are at least 6 square inches (39 sq. cm), but less than 12 square inches (77 sq. cm), in size. Higher ratings of 20, 30, and 40 percent are warranted if the affected area or areas exceed 12 square inches (77 sq. cm), 72 square inches (465 sq. cm), and 144 square inches (929 sq. cm), respectively. A deep scar is one associated with underlying soft tissue damage. Similarly, under Diagnostic Code 7802 (scars-other than those of the head, face, or neck-that are superficial and nonlinear) a 10 percent rating is warranted if the area or areas affected is/are at least 144 square inches (929 square centimeters) or greater. A superficial scar is one not associated with underlying soft tissue damage. If multiple qualifying scars are present, a separate evaluation is assigned for each affected extremity based on the total area of the qualifying scars that affect that extremity. Under Diagnostic Code 7804 (scars, unstable or painful), a 10 percent rating is warranted for one or two scars that are unstable or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful. A maximum 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. If one or more scars are both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. Factual Background The relevant evidence of record consists of post-service VA and private medical treatment records, and lay statements by the Veteran and other sources. Collectively, VA and private treatment records dated between December 2004 and June 2017 note a history of asymptomatic residual scars after removal of shell fragment wounds in service. For instance, treatment records dated in December 2004 reflect a notation of "barely visible" scars on the Veteran's left leg and right arm which are well-healed and not productive of any significant residuals. Treatment records dated in October 2006 reflect a history of coronary artery bypass grafting surgery with residual scarring. Treatment records dated in December 2014 noted multiple shell fragment wounds "with no significant residuals." Report of the March 2009 VA examination reflects, in pertinent part, a history of shell fragment wounds in-service to the Veteran's left thigh, back, arms, and abdomen. Physical examination revealed multiple scars. First, an abdomen (midline) scar that measured 24 cm, i.e., starts in the midepigastrium and goes to the symphysis pubis. The examiner noted the scar was well-healed and stable. No keloid formation or adherence was noted. Upon questioning, the Veteran denied any problems with the abdominal scar. The Veteran was diagnosed with status post laparotomy scar, asymptomatic. Second, a right (front) shoulder scar that measured 2.5 cm x 1.1 cm, and a left arm scar that measured 4 cm on the medial aspect of the left arm. The examiner noted each scar was well-healed, with no tenderness, keloid formation, or adherence. Lastly, the examiner noted multiple left thigh scars. A scar on the left lateral aspect of the lower thigh that measured 7.2 cm x 1 cm, a scar on the back left buttocks that measured 7 cm x 1.5 cm, and two scars on the lateral aspect of the left hip each measuring 2 cm. The examiner also noted a scar on the left upper thigh that measured 5.5 cm x 1 cm, laterally. The examiner noted all of these scars were well-healed and stable. The examiner further noted that none of these scars resulted in muscle loss, keloid formation, or adherence. Additionally, the examiner noted a scar on the posterior aspect of the middle left thigh that measured 7.5 cm x 1.5 cm. The examiner noted this scar was slightly depressed with mild loss of muscle tissue; however, noted it was well-healed with no keloid formation, tenderness, or adherence. Similar findings were noted at the May 2016 VA examination. In particular, physical examination revealed a linear left shoulder scar measured at 3 cm, multiple linear left buttocks and/or left thigh scars measured at 5 cm, 5 cm, 6 cm, and 5 cm, respectively, multiple linear back scars measured at 4 cm, 4.5 cm, 2 cm, and 3 cm, respectively, and a linear midline abdominal scar measured at 24.5 cm. The examiner noted the absence of any superficial nonlinear or deep nonlinear scars. The Veteran denied the presence of any painful or unstable scars. Analysis Based on a review of the evidence, the Board finds that a compensable rating for the Veteran's service-connected residual abdominal scar, status post laparotomy, is not warranted in this case. Additionally, the Board finds that a compensable rating for the Veteran's service-connected residual scars to the left leg, back, and arms from shell fragments is not warranted in this case. In making these findings, the Board finds particularly persuasive the VA examinations and medical treatment records consistently reflecting linear, superficial scars, that are asymptomatic, i.e., neither unstable nor painful. The Veteran's medical treatment records reflect a long history of residual scars after removal of shell fragment wounds in service. Notably, however, the records are negative for any complaints of and/or treatment for painful or unstable scars. Rather, records reflect residual scars with no significant residuals. This is overwhelmingly echoed by the VA examinations of record. In particular, the May 2016 VA examiner noted multiple well-healed linear scars; however, noted the absence of any superficial nonlinear or deep nonlinear scars. Additionally, the Veteran denied presence of any painful or unstable scars. The Board recognizes the March 2009 finding of a scar on the posterior aspect of the middle left thigh that measured 7.5 cm x 1.5 cm, which was slightly depressed with mild loss of muscle tissue. As indicated, a deep scar is defined as one associated with underlying soft tissue damage. Notwithstanding, the Board finds that a compensable rating is not warranted because at no point in the appeal period has it occupied a total area of 72 square inches (465 sq. cm). The Board has considered the Veteran's statements in support of his claim. The Veteran is clearly competent to identify the presence of scars. However, to the extent the Veteran is addressing questions of medical nature and severity, i.e., identifying a specific level of disability, the Board finds his statements are not competent lay evidence. Notwithstanding, the probative medical evidence outweighs the lay statements. Alternatively, the Board has considered the applicability of other rating criteria for scars. However, there is no evidence to support a compensable rating under those respective diagnostic codes. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for entitlement to a compensable rating for service-connected abdominal scar, status post laparotomy, and residual scars to the left leg, back, and arms from shell fragments, respectively. ORDER Entitlement to a rating in excess 10 percent for low back disability is denied. Entitlement to an increased rating of 20 percent prior to May 3, 2016, for radiculopathy of the left lower extremity is granted. Entitlement to an increased rating of in excess of 20 percent for radiculopathy of the left lower extremity at any point during the appeal period is denied. Entitlement to a compensable rating for residual abdominal scar, status post laparotomy, from shell fragments is denied. Entitlement to a compensable rating for residual scars to the left leg, back, and arms from shell fragments is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs