Citation Nr: 18141828 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 16-26 387 DATE: October 11, 2018 ORDER Entitlement to an initial 20 percent rating, but no higher, for scars, residuals of gunshot wound, right side, is granted under Diagnostic Code 7801. FINDING OF FACT Affording the Veteran the benefit of the doubt, the Veteran’s posterior trunk scars, residual to service-connected gunshot wound, are deep and nonlinear, and affect an area greater than 77 square centimeters but less than 465 square centimeters. CONCLUSION OF LAW The criteria for a 20 percent initial rating, but no higher, for scars, residuals of gunshot wound, right side, are met. 38 U.S.C. § 1155, 5103, 5107; 38 C.F.R. § 3.102, 3.159, 4.118, Diagnostic Code 7801. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 to July 1970, and was awarded the Purple Heart for his service in the Republic of Vietnam. Entitlement to an initial compensable rating for scars, residuals of gunshot wound, right side The Veteran contends that his service-connected scars from a gunshot wound to the chest warrant a compensable rating. In a February 2015 rating decision, the Veteran was awarded service connection for scars, residuals of gunshot wound, right side, with a noncompensable rating under Diagnostic Code 7805, effective November 20, 2014. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 2007). Under Diagnostic Code 7801, a 10 percent rating is warranted for scars that are deep and nonlinear and affect an area exceeding 6 square inches (929 square centimeters); a 20 percent rating is warranted for an area or areas exceeding 12 square inches (77 square centimeters). A 30 percent rating is assigned for an area or areas exceeding 72 square inches (465 square centimeters). A maximum 40 percent rating is warranted for an area or areas exceeding 144 square inches (929) square centimeters. 38 C.F.R. § 4.118, DC 7801. Under Diagnostic Code 7802, a maximum 10 percent rating is warranted for a nonlinear superficial scar that is in excess of 144 square inches (929 square centimeters). 38 C.F.R. § 4.118, DC 7802. Diagnostic Code 7804 provides a 10 percent rating 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 30 percent rating is warranted for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. If one or more scars are both unstable and painful, 10 percent will be added to the evaluation that is based on the total number of unstable or painful scars. See Note (2). Diagnostic Code 7805 provides for other scars to be evaluated by any disabling effects not considered in a rating provided under codes 7800-04 under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7801-7805. Turning to the evidence, the Veteran was provided a VA scar examination in October 2014. The examiner identified scars on the Veteran’s anterior and posterior trunk, secondary to the Veteran’s gunshot wound, chest tube administered during treatment, and associated thoracotomy. The examiner found deep non-linear scars on the anterior trunk with an approximate total area of six square centimeters and deep non-linear scars on the posterior trunk with an approximate total area of 192.35 square centimeters. None of the scars were found to be unstable or painful. The examiner found no disfigurement of the head, face or neck. The Veteran was provided another VA scar examination in February 2015. The examiner identified well-healed entry and exit wound scars of the right chest and abdomen, a well-healed thoracotomy scar, and well-healed chest tube scars. The Veteran reported that the scars caused pulling and tightness when he turns to the right, but no other limitations. The Veteran reported that his back thoracotomy scar sometimes gets a little numb. The examiner found the scars were neither unstable or painful, and that they were all linear. In his March 2015 Notice of Disagreement, the Veteran reported that his gunshot wound scar causes him pain and numbness at times, and the scar has caused disfigurement to his body. In his May 2016 Appeal to the Board of Veterans Appeals, the Veteran indicated that he was not in pain at the time of his examination, but that he experiences pain and numbness regularly, particularly when sleeping on his side or during exercise. In sum, the October 2014 VA scar examination found deep nonlinear scars on the Veteran’s posterior trunk with an approximate total area of 192.35 square centimeters. The February 2015 VA scar examination found that the scars were linear. Affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s service-connected gunshot wound and subsequent treatment have resulted in deep non-linear scars on the posterior trunk with an approximate total area of 192.35 square centimeters. Therefore, a 20 percent disability rating is warranted under Diagnostic Code 7801. A 30 percent rating is not warranted under Diagnostic Code 7801 because the total area of the scar does not exceed 465 square centimeters. Furthermore, a 30 percent rating is not warranted under Diagnostic Code 7804, because the Veteran does not have five or more scars that are unstable or painful. Thus, the Board finds and that the Veteran is entitled to an initial 20 percent evaluation, but no greater, for his service-connected scars, residuals of gunshot wound, right side. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Casey, Associate Counsel