Citation Nr: 18142052 Decision Date: 10/15/18 Archive Date: 10/12/18 DOCKET NO. 15-24 388 DATE: October 15, 2018 ORDER Entitlement to an increased rating for left foot post-surgical scars is dismissed. Entitlement to an initial compensable rating of 20 percent for four painful post-surgical scars associated with lumbar spine disability is granted. Entitlement to an additional initial compensable rating of 10 percent for one unstable and painful post-surgical scar associated with lumbar spine disability is granted. FINDINGS OF FACT 1. While his claim was in appellate status, the Veteran properly withdrew the issue of an increased rating claim for left foot post-surgical scars. 2. Throughout the appeal period, the Veteran’s all four post-surgical scars associated with lumbar spine disability have been painful. 3. Throughout the appeal period, the Veteran’s one of the four post-surgical scars associated with lumbar spine disability has been both unstable and painful. CONCLUSIONS OF LAW 1. The criteria for dismissal have been met. 38 U.S.C. § 2.204 (2017). 2. The criteria for entitlement to an initial compensable rating of 20 percent for painful post-surgical scars have been met. 38 U.S.C. § 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.118, Diagnostic Codes 7805, 7804 (2017). 3. The criteria for entitlement to an additional initial compensable rating of 10 percent for unstable and painful post-surgical scar have been met. 38 U.S.C. § 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.118, Diagnostic Codes 7805, 7804 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1983 to August 2003. This case is before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2017, the Veteran and his wife testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. Dismissal The claimant or the claimant’s representative may withdraw an appeal as to any or all issues on appeal. 38 C.F.R. § 20.204(a) (2017). Except for appeals withdrawn on the record at a hearing, withdrawal must be in writing. 38 C.F.R. § 20.204(b)(1) (2017). A withdrawal is effective when received provided that receipt is prior to the issuance of a decision by the Board. 38 C.F.R. § 20.204(b)(3) (2017). It constitutes a withdrawal of the notice of disagreement and, if filed, the substantive appeal. 38 C.F.R. § 20.204(c) (2017). Here, the Veteran verbally withdrew the issue of an increased rating claim for left foot post-surgical scars at the July 2017 hearing. July 2017 Hearing Transcript, at 2. Later in September 2018, through his representative, the Veteran submitted a written motion to confirm his request to withdraw other issues on appeal except for the issue of an increased rating claim for post-surgical scars associated with lumbar spine disability. September 2018 Motion to Withdraw Appeal Issues and to Proceed with Remaining Issue. The Veteran’s verbal and written withdrawal requests were received prior to the Board’s decision. Based on above, the Board finds that, by the Veteran’s proper and effective withdrawal, the issue of an increased rating claim for left foot post-surgical scars is dismissed. 38 C.F.R. § 20.204 (2017). Now the remaining issue on appeal is the Veteran’s claim for an initial compensable rating for post-surgical scars associated with his service-connected lumbar spine disability. Legal Criteria for Increased Rating: Scars Evaluated under Diagnostic Code 7805 A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27 (2017). VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2017). Otherwise, it will assign the lower rating. Id. Under Diagnostic Code 7805, scars and other effects of scars may receive an evaluation under Diagnostic Codes 7800, 7801, 7802, and 7804. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2017). Diagnostic Code 7804 is applied to unstable or painful scars, and 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; and 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 (2017). An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id., at Note 1. Also, if one or more scars are both unstable and painful, VA is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id., at Note 2. Factual Background and Analysis The Veteran is service-connected for a lumbar spine disability for which he received two surgeries, a laminectomy in September 2014 and a spinal fusion in May 2016. The Veteran now has four scars from the two surgeries: one on his abdomen measuring at 13.5 x 0.3 cm, and three on his lower back measuring at 9.0 x 0.1 cm, 7.5 x 0.1 cm, and 7.5 x 0.1cm. See November 2016 VA Back Conditions Disability Benefits Questionnaire. As set forth in his July 2017 hearing testimony, the Veteran testified that all four of his post-surgical scars are constantly painful. He testified that the abdominal scar gives him numbing, burning, and stinging pain, and the lower back scars give him pain similar to a bee-sting. July 2017 Hearing Transcript, at 5. He also testified that since all of his scars are located around the area where he puts his belt on, the pain gets exacerbated with heat and activities including sitting for a long period of time. Id., at 3. The Veteran’s wife also testified that the Veteran is always in pain and she cannot put oils for soothing because the Veteran cannot tolerate any touching. Id., at 4. Moreover, July 2017 VA treatment records indicate that the Veteran’s scars have caused constant burning pain which is made worse by activity and heat. August 2017 VA treatment records also report that all of the Veteran’s scars have caused him pain and discomfort. The Board finds the testimonies of the Veteran and his wife A.C., and the July and August 2017 VA treatment records to be competent and credible evidence of the Veteran’s four painful post-surgical scars. Based on above, the Board resolves any reasonable doubt in the Veteran’s favor and finds that throughout the course of the appeal, his four post-surgical scars have been painful, such that it warrants a 20 percent rating under Diagnostic Code 7804, which, as stated above, pertains to three or four scars that are unstable or painful. See 38 C.F.R. § 4.118, Diagnostic Code 7804 (2017). Additionally, the Board finds that the one of the four post-surgical scars, the abdominal scar, meets the criteria for both unstable and painful scar under Diagnostic Code 7804. The Veteran and his wife testified that the abdominal scar opens up sometimes and gets stick to the Veteran’s shirt or stuck into his belt. July 2016 hearing transcript, at 4. The Veteran’s wife testified that she has witnessed the abdominal scar being split open, and it was so painful to touch that she was unable to apply anything to help with the Veteran’s pain. Id. The Board notes that the Veteran testified that the abdominal scar is the most painful scar, although all of his scars are painful. Id., at 5 The Board finds that the testimonies of the Veteran and his wife regarding the condition of the Veteran’s abdominal scar competent and credible, and the abdominal scar meets the criteria for an unstable scar as it often loses covering of the skin when it opens up. 38 C.F.R. § 4.118, Diagnostic Code 7804, at Note 1. Accordingly, the Board resolves any reasonable doubt in the Veteran’s favor and finds that throughout the course of the appeal, his abdominal scar has been both unstable and painful, such that it warrants an additional 10 percent rating under Diagnostic Code 7804, which, as stated above, pertains to one or more scars that are both unstable and painful. Id., at Note 2. In conclusion, the Board finds that an initial 30 percent rating is warranted for the Veteran’s post-surgical scars pursuant to Diagnostic Codes 7805 and 7804. See 38 C.F.R. § 4.118, Diagnostic Codes 7805, 7804 (2017); see also 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. E. Kim, Associate Counsel