Citation Nr: 18142329 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 12-24 641 DATE: October 15, 2018 ORDER An initial compensable rating for recurrent ulcer and cellulitis of the right lower extremity is denied. FINDING OF FACT The Veteran’s recurrent ulcer and cellulitis of the right lower extremity, resulted in, at worst, slight impairment. CONCLUSION OF LAW The criteria for an initial compensable rating for recurrent ulcer and cellulitis of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.655, 4.1, 4.2, 4.7, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the Marine Corps from April 1975 to September 1975. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a March 2011 rating decision of a regional office of the Department of Veterans Affairs (VA). In July 2015, the Veteran testified at a Board hearing via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In October 2015, the Board remanded the claim for a compensable rating for recurrent ulcer and cellulitis of the right lower extremity for additional evidentiary development. The matter has properly returned to the Board for appellate consideration. Additionally, while the Board acknowledges that the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form in April 2018, the appeal that is the subject of this decision had already been activated at the Board and is, therefore, no longer eligible for the RAMP program. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Recurrent Ulcer and Cellulitis of the Right Leg By rating decision of March 2011, the RO granted service connection for recurrent ulcer and cellulitis of the right lower extremity, and assigned a noncompensable rating, effective from September 26, 1975, one day following discharge from service. The Veteran’s recurrent ulcer and cellulitis of the right lower extremity is evaluated under Diagnostic Code 7805 (other scars). See 38 C.F.R. § 4.118, Diagnostic Code 7805. Under Diagnostic Code 7805, for other scars (including linear scars) and other effects of scars evaluated under Diagnostic Code 7800, 7801, 7802, and 7804, the Board must evaluate disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code. 38 C.F.R. § 4.118. The Board notes that Diagnostic Code 7800 pertains to disfigurement of the head, face, or neck, and thus not for application here. Likewise, Diagnostic Codes 7801 and 7802 are not applicable as they pertain to deep and nonlinear scars or burn scars due to other causes not of the head, face, or neck that are superficial and nonlinear. Because the Veteran’s scar is not shown to be deep and identified as a superficial and linear scar, Diagnostic Codes 7801 and 7802 are not for application. Id. Under Diagnostic Code 7804, scar(s), unstable or painful, warrant a rating of 10 percent for one or two scars that are unstable or painful; 20 percent for three or four scars that are unstable or painful; and a maximum rating of 30 percent for five or more scars that are unstable or painful. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this Diagnostic Code, when applicable. See 38 C.F.R. § 4.118, Diagnostic Code 7804. In February 2011, the Veteran was afforded a VA contract examination. He reported a scar of the right leg that was caused by an infection (cellulitis) in April 2010. He reported pain and that he has to wear long socks in the grass to prevent from breaking out. Based on skin examination, the examiner found “no scar” and “the skin does not reveal any burn scars.” The examiner indicated “there is no change in the diagnosis” and noted the objective factors that the condition is “currently quiescent”, meaning inactive. There was no other pertinent physical findings, complications, conditions or symptoms associated with the scar indicated by the examiner. See VA contract examination dated February 2011. The record reflects a VA scars examination of June 2016. The Veteran reported symptoms of right leg pain and numbness. However, on physical examination, there was “no active ulcer noted.” The examiner indicated a “linear” scar on the right lower extremity measuring 3 cm in length, and that the scar was “stable without effect to motion, no soft tissue damage, no tenderness/pain to palpation.” The examiner found no limitation of function due to the scar, and indicated there was no other pertinent physical findings, complications, conditions or symptoms associated with the scar. See Scars/Disfigurement Disability Benefits Questionnaire dated June 2016. Based on the evidence of record, the Board finds that the currently assigned noncompensable rating is appropriate and fully contemplates the Veteran’s recurrent ulcer and cellulitis of the right lower extremity disability level. During the entire period on appeal, there has been no objective medical evidence of record to demonstrate that the Veteran’s scar is unstable or painful for VA rating purposes. Although the medical professionals considered the Veteran’s subjective complaints of pain and numbness, on physical examination, objective factors indicated that the condition was in fact inactive, consistently finding no current ulcer on examination. The examiners specifically indicated no evidence of any signs or symptoms or any other physical findings associated with the scar. Moreover, the examiners indicated there was no limitation of function due to the scar. Absent such evidence of unstable or painful scar, a higher rating is not supported. Thus, the criteria for a compensable rating under Diagnostic Code 7805 have not been met or approximated, and an increased rating under this code is not warranted for the entire appeal period. See 38 C.F.R. § 4.118, Diagnostic Code 7805. 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 an initial compensable rating for recurrent ulcer and cellulitis of the right lower extremity. The benefit-of-the-doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. An, Associate Counsel