Citation Nr: 18140572 Decision Date: 10/04/18 Archive Date: 10/03/18 DOCKET NO. 16-15 177A DATE: October 4, 2018 ORDER 1. Entitlement to an initial disability rating of 20 percent for residuals of a smallpox vaccination, prior to October 21, 2016, is granted. 2. Entitlement to an increased initial rating for residuals of a smallpox vaccination in excess of 20 percent, at any time in the appeal period, is denied. FINDING OF FACT 1. Prior to August 24, 2009, the Veteran had one benign neoplasm, measuring .07 centimeters in diameter (0.38 square centimeters), which was painful and unstable, as a residual of a smallpox vaccination. 2. From August 24, 2009, the Veteran had one scar measuring 3.5 centimeters by 1.2 centimeters (4.2 square centimeters), which was painful and unstable, as a residual of a smallpox vaccination. CONCLUSIONS OF LAW 1. The criteria for a 20 percent disability rating, but no higher, for the residuals of a smallpox vaccination, were met from October 1, 2008 forward. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118, DC 7804 (2018). 2. The criteria for a disability rating in excess of 20 percent have not been met at any time. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118, DC 7804 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has had multiple periods of active service, including from October 1999 to April 2000, February 2003 to August 2003, March 2005 to September 2005, February 2006 to June 2006, and November 2006 to September 2008. This matter is before the Board of Veterans’ Appeals (Board) on appeal of January 2014 and October 2016 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). Entitlement to an increased initial rating for residuals of a smallpox vaccination, rated as noncompensable prior to October 21, 2016 and as 20 percent disabling thereafter The Veteran is service-connected for residuals of a smallpox vaccine on his upper left arm. The disability is rated as noncompensable prior to October 21, 2016 and as 20 percent disabling thereafter. The Veteran seeks an increased initial rating. He is service-connected for residuals of a smallpox vaccination effective as of October 1, 2008—the day after his date of separation from service. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities 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. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 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(b); 38 C.F.R. § 4.3. The Veteran filed his claim on August 1, 2008. Subsequently, the applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended twice. The rating criteria for scars, effective from August 2002 (2002 criteria), were applicable at the time the complaint was filed. See 67 Fed. Reg. 49, 590 (July 31, 2002); 67 Fed. Reg. 58, 448 (Sept. 16, 2002). The rating criteria were amended effective October 23, 2008 (2008 criteria). The 2008 criteria were applicable only to claims filed after their effective date or on the request of the Veteran. As no request has been entered to apply the 2008 criteria, they are not applicable here. See 73 Fed. Reg. 54,708 (Sept. 23, 2008); 77 Fed. Reg. 2, 909 (Jan. 10, 2012). Effective August 13, 2018, VA amended the rating criteria for scars again (2018 criteria). In adopting the new regulations, VA provided claims pending prior to the effective date be considered under both old and new rating criteria, and whichever criteria is more favorable to the Veteran be applied. See, 83 Fed. Reg. 32592 (July 13, 2018). Thus, the Board must consider the 2002 and 2018 criteria in evaluating the Veteran’s claims. The Board has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). Under the 2002 criteria, a benign neoplasm, per diagnostic code (DC) 7819, is rated as disfigurement of the head, face, or neck (DC 7800), scars (DC’s 7801,7802,7803, 7804, or 7805), or impairment of function. As the disability in question is not of the head, face, or neck, and is not reported to impair function of the arm; it is appropriately rated under the DCs for scars. See 38 C.F.R. § 4.118 (2002). Under the 2002 criteria, DC 7801 provides a 10 percent rating for scars, other than head, face, or neck scars, that are deep or that cause limited motion and which cover an area exceeding six square inches (39 square centimeters). A 20 percent rating is assigned for scars, other than head, face, or neck, that are deep or that cause limited motion and which cover an area exceeding 12 square inches (77 square centimeters). A 30 percent rating is assigned for scars, other than head, face, or neck, that are deep or that cause limited motion and which cover an area exceeding 72 square inches (465 square centimeters). A 40 percent rating is assigned for scars, other than head, face, or neck which cover an area exceeding 144 square inches (929 square centimeters). Id. DC 7802 provides a 10 percent rating for superficial scars other than head, face, or necks scars, the area of which covers 144 square inches (299 square centimeters) or greater. Id. DC 7803 provides a 10 percent evaluation for superficial unstable scars. Id. DC 7804 provides a 10 percent rating for superficial painful scars. Id. For both DC 7803 and 7804 a superficial scar is defined as one not associated with underlying soft tissue damage. Id. DC 7805 provides that other scars are to be rated on limitation of function of affected part. Id. Under the 2018 criteria, a benign neoplasm, per DC 7819, continues to be rated as disfigurement of the head, face, or neck (DC7800), scars (DC’s7801,7802,7803, 7804, or 7805), or impairment of function. As the disability in question is not of the head, face, or neck, and is not reported to impair function of the arm; it is appropriately rated under the DCs for scars. See 38 C.F.R. § 4.118 (2018). DC 7801 provides a 10 percent rating for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage, and the area of which covers at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). A 20 percent rating is warranted for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage, the area of which covers at least 12 square inches (77 square centimeters) but less than 72 square inches (465 square centimeters). A 30 percent rating is warranted for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage, the area of which covers at least 72 square inches (465 square centimeters) but less than 144 square inches (929 square centimeters). A 40 percent rating is assigned for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage, the area of which covers at least 144 square inches (929 square centimeters) or greater. Id DC 7802 provides a 10 percent rating for scars, other than head, face, or necks scars, and not associated with underlying soft tissue damage the area of which covers 144 square inches (929 square centimeters) or greater. Note (1) provides that for purposes of DCs 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Note (2) allows assignment of a separate evaluation for each affected zone of the body. Combine the separate evaluations under §4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this DC. Id. DC 7803 was eliminated. Id. Under DC 7804, one or two scars that are unstable or painful warrant a 10 percent rating. A 20 percent rating requires three or four scars that are unstable or painful. A 30 percent rating requires five or more scars that are unstable or painful. Note (1) provides an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides if one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an additional rating under DC 7804, when applicable. Id. Under the DC 7805, other scars, and other effects of scars rated under DCs 7800, 7801, 7802, and 7804 not considered in a rating provided under DCs 7800-7804 are to be rated under an appropriate DC. Id. The Veteran developed an irritation at the site of a smallpox vaccination. A May 2009 primary care note describes a “semisolid nodule in the left deltoidal area”. July 2009 VA medical records describe a single slow growing and itchy lesion, measuring 0.7-centimeters in diameter (0.38 square centimeters), on the Veteran’s upper left arm. The growth was surgically removed on August 24, 2009. After a pathology report, it is identified in subsequent medical records as a benign neoplasm. The Board finds the lesion was unstable because it was noted to be growing. Further, the Board finds that the lesion caused discomfort, tantamount to pain, because it was itchy. Accordingly, the benign neoplasm, is appropriately rated as a scar and per DC 7804. Resolving all doubt in favor of the Veteran, the single lesion, less than 6 square inches (39 square centimeters) in area, was both unstable and painful prior to its surgical removal on August 24, 2009. After the August 24, 2009 excision surgery, a VA Administrative Note from September 2009 describes the incision as “healing well.” A September 2013 letter from the Veteran’s private physician, Dr. V., describes a “mass in the area where his smallpox vaccine was placed. Right now, he’s presenting a scar which has been increasing in size.” A March 2016 VA skin disease examination observed a “small round erythematous lump and scar in the left mid deltoid area.” The Veteran reported itching at the site of the scar, but did not report using any oral or topical medications. During October 2016 VA skin disease and scar examinations, the Veteran reported a tender, itching, dry scar on his left upper arm. He used medicated creams for less than 6 weeks in the prior 12-month period. The examiner described a deep, non-linear scar on the left upper arm which was tender, dry and unstable. The scars measures 3.5 centimeters by 1.2 centimeters (4.2 square centimeters). Resolving all doubt in favor of the Veteran, this one scar, less than 6 inches square inches (39 square centimeters) in area, has been unstable, itchy, and tender since his August 24, 2009 surgery. Per the August 2002 criteria, the smallpox vaccine residuals (initially a benign neoplasm and later a scar) are rated as 10 percent disabling as either an unstable scar under DC 7803 or a painful scar under DC 7704. See 38 C.F.R. § 4.118, DC 7804 (2002). Per the August 2018 criteria the smallpox vaccine residuals are rated as 10 percent disabling under DC 7804 as a single scar which is both unstable and painful. Per note 2 an additional 10 percent disability is added to the rating because the scar is both unstable and painful, allowing a disability rating of 20 percent. See 38 C.F.R. § 4.118, DC 7804 (2018). As the 2018 criteria is more favorable the Veteran, it is applied over the entire appeal period. See 83 Fed. Reg. 32592 (July 13, 2018). Further, at all times the Veteran presented either one benign neoplasm or one scar. Accordingly, the criteria for a disability rating of 30 percent or higher have not been met. See 38 C.F.R. § 4.118, DC 7804 (2002 and 2018). The Board notes that the Veteran indicated the use of topical cream medications for less than 6 weeks during the preceding 12 months during the October 2016 VA skin examination. Per the General Rating Formula for the Skin (including DCs 7806-7809. 7811, 7813, 7815-7817, 7820-22 and 7824) in both the 2002 and 2018 rating criteria, a compensable rating, based on the use of such medication, is not warranted unless 5 percent or more of the body is affected by a skin disease. As the evidence does not show that greater than 5 percent of the Veteran’s skin is affected, these rating criteria are not for application here. See 38 C.F.R. § 4.118 (2002 and 2018). DAVID GRATZ Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeanne Celtnieks, Associate Counsel