Citation Nr: 1803517 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 08-15 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a separate compensable rating for left forearm scars. ATTORNEY FOR THE BOARD N. Staskowski, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1943 to July 1947. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO), which continued a 20 percent rating for residuals of a gunshot wound to the left forearm. In August 2014 the matter was remanded for additional development. Thereafter, a July 2017 rating decision assigned a separate 0 percent rating, for left forearm scars, effective April 15, 2011. An October 2017 Board decision denied an increased rating claim for residuals of a left forearm gunshot wound and remanded the matter of the rating of the left forearm scars for additional development. This case is now assigned to the undersigned. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran's left forearm scars are superficial, total far less than 144 square inches in area, and are not shown to be painful or unstable, or to cause any functional impairment. CONCLUSION OF LAW A compensable rating for left forearm scars is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.31, 4.118, Diagnostic Codes (Codes) 7802, 7804, 7805 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Inasmuch as this appeal is from the rating decision that granted service connection for the Veteran's left forearm scars and assigned a disability rating and effective date for the award, the purpose of statutory notice was met, and such notice is no longer necessary. A statement of the case properly provided notice on the downstream issue of entitlement to an increased initial rating. In accordance with the Board's October 2017 remand directives, color photographs taken at the time of Veteran's April 2016 scars examination have been associated with the record. The Board finds that the RO has complied with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). All pertinent private and VA records identified are associated with the record. The Veteran was afforded VA examinations in August 2011, April 2016, and May 2017. A duty to assist omission is not alleged. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("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 duty to assist argument). Legal Criteria, Factual Background, and Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Scars are evaluated under 38 C.F.R. § 4.118, Codes 7800 through 7805. Code 7800 applies to scars of the head, face, and neck (and therefore does not apply in this case). Code 7801 applies to scars, not of the head, face, or neck that are deep and nonlinear. A 10 percent rating is assigned for an area or areas of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). Note 2 provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Code 7801. Superficial and nonlinear scars not of the head, face, or neck are rated under Code 7802. Under this Code, a 10 percent rating is assigned for scars that cover an area or areas of at least 144 square inches (929 square cm). Note 2 provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118 , Code 7802. Under Code 7804 (for scars that are unstable or painful) a 10 percent rating for one or two qualifying scars, a 20 percent rating for three or four qualifying scars, and a 30 percent rating for five or more qualifying scars. Note 1 under the Code provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Code 7804. Under Code 7805 any disabling effect(s) not considered in a rating provided under Codes 7800-04 are to be rated under an appropriate Code. 38 C.F.R. § 4.118, Code 7805. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. When the appeal is from the initial rating assigned with an award of service connection, the severity of the disability at issue during the entire period from the initial assignment of the disability rating to the present is to be considered, and "staged" ratings may be assigned, based on facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claims. On August 2011 VA muscle examination physical examination noted two scars on the left forearm. One scar was described as circular and 5 cm in diameter, the second was linear and 4 cm by 1 cm in size. Both scars were considered superficial (without underlying soft tissue damage). It was noted that neither scar was painful or showed skin breakdown. No limitation of motion or function was caused by the scars (underlying muscle pain, which is separately rated and addressed in an earlier Board decision was noted). On April 2016 VA muscle injuries examination entrance and exit scars were noted. The examiner noted "yes" that the Veteran's scars were either painful or unstable, had a total area equal to or greater than 39 sq cm, or were located on the head face or neck. The examiner did not provide explanation for the comment. On April 2016 VA scars examination noted that both left forearm scars were not unstable with frequent loss of covering of skin and were not painful. The first scar was described as linear and 4 x 1 cm in size. The second scar was noted as 5 cm in size. It was noted that neither scar resulted in limitation of function. On May 2017 VA elbow and forearm examination a 4 cm by .2 cm scar that did not exceed 39 square cm, and was not painful or unstable was noted . In November 2017, in accordance with the Board's October 2017 remand directives, photographs from the Veteran's April 2016 VA scars examination were associated with the record. They generally show barely perceivable scars (and do not show anything significantly at variance with reports by examiners). The Board finds a truer/more complete reflection of the nature and characteristics of the scars appears in the reports of VA examiners. The Veteran has two scars on his left forearm, each of them superficial. As the scars are not of the head, face, or neck, Code 7800 does not apply. Additionally, as the Veteran's scars have never (during the evaluation period) been described as deep, Code 7801 also does not apply. Code 7802 would apply if the dimensions for a compensable rating were met. Under Code 7802, a 10 percent rating is warranted for scars that cover an area of 144 square inches or greater. On August 2011 and April 2016 VA examinations, the consulting providers noted two left forearm scars. The examiners noted the measurement of a linear scar as 4 cm by 1 cm and a circular scar of 5 cm in diameter. In aggregate the dimensions total far less than the 144 square inches required for a 10 percent rating under Code 7802. Therefore, under Code 7802, and in accordance with 38 C.F.R. § 4.31, only a 0 percent rating may be assigned. Code 7804 would apply if the scars were shown to be painful or unstable. In his September 2012 Notice of Disagreement the Veteran stated that he experienced left forearm pain. He is competent to observe that he has pain in an anatomical location. However, what underlying pathology is responsible for the pain is a medical question that requires medical expertise. See Jandreau v. Nicholson, 492 F.3d. 1372 (Fed. Cir. 2007). This pain reported has been attributed to the Veteran's underlying muscle disability (which is also service connected, and is separately rated). The Board notes that one (April 2016 muscle injury examination) examiner noted (without explanation) that the Veteran's scars were either painful or unstable, had a total area equal to or greater than 39 sq cm, or were located on the head face or neck. Such finding is inconsistent with the findings on a scars examination conducted contemporaneously, and also the findings on all other examinations during the evaluations period (to include in August 2011 and in May 2017, which all found that the left forearm scars were not painful, unstable, or tender. Given the cursory nature of the findings reported by the April 2016 muscles examiner, the Board finds that the findings on that examination do not present a true picture of the Veteran's left forearm scars disability. In accordance with 38 C.F.R. § 4.31, no more than a 0 percent rating may be assigned under Code 7804 . Code 7805 would apply if there was functional impairment attributable to the scars. However, the medical evidence of record does not show that at any time under consideration there was functional impairment attributed to the scars. Limitations of forearm motion that have been reported have been attributed to, and considered in the rating for, the underlying gunshot wound disability. Therefore, no more than a 0 percent rating may be assigned under Code 7805. See 38 C.F.R. § 4.31. The Board finds that the Veteran's left forearm gunshot wound residual scars have not at any time under consideration met any applicable rating criteria for a compensable rating. The preponderance of the evidence is against this claim. Therefore, the benefit of the doubt doctrine does not apply; the appeal in this matter must be denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER A separate compensable rating for left forearm scars is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs