Citation Nr: 18143261 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 15-08 718 DATE: October 18, 2018 ORDER Entitlement to an initial disability rating in excess of 10 percent for residual painful scar, perianal fistula with hidradenitis (claimed as multiple pilonidal cysts) is denied. FINDING OF FACT For the entire period on appeal, the Veteran’s disability has been characterized by, at most, two painful scars. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for residual painful scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.27, 4.118, Diagnostic Code (DC) 7899-7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1974 to September 1986 and from February 1991 to May 1991. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). in his March 2015 substantive appeal (VA Form 9), the Veteran requested a Board hearing by videoconference. In February 2016, the Veteran withdrew his request for a Board videoconference hearing. Therefore, there is no outstanding hearing request. 38 C.F.R. § 20.704(e). Increased Ratings Claim Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disability. 38 U.S.C. § 1155. Evaluation of a service-connected disability requires a review of the Veteran’s entire medical history regarding that disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis, and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to them through their senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran is currently in receipt of an initial disability rating of 10 percent for residual painful scar. He contends that a higher rating is warranted. The Veteran’s residual painful scar is currently rated under 38 C.F.R. § 4.118, DCs 7899-7804, applicable to painful or unstable scars. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. When an unlisted condition is encountered, as with residual painful scar, it is permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. According to the policy in the Rating Schedule, when a disability is not specifically listed, the diagnostic code will be “built up,” meaning that the first 2 digits will be selected from that part of the schedule most closely identifying the part of the body involved, and the last 2 digits will be “99.” 38 C.F.R. § 4.27. Scars are rated under 38 C.F.R. § 4.118, schedule of ratings for disorders of the skin, under DCs 7800-7805. DC 7800 applies to scars of the head, face, or neck, and as such, is not applicable to the Veteran’s claim. DC 7801 provides the rating criteria for burn scars or scars due to other causes, not of the head, face, or neck, which are deep and nonlinear. As the Veteran’s scars are superficial and linear, DC 7801 is not for application. DC 7802 provides the rating criteria for burn scars or scars due to other causes, not of the head, face, or neck, which are superficial and nonlinear. DC 7802 is not for application as the Veteran’s scar is linear. Under DC 7804, a 10 percent rating is warranted for one or 2 scars that are unstable or painful. A 20 percent rating is warranted for 3 to 4 scars that are unstable or painful. A 30 percent disability rating is warranted for 5 or more scars that are unstable or painful. Note (1) states 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. Id. Turning to the evidence, a February 2012 VA examination noted the multiple surgeries the Veteran had undergone to control drainage and bleeding from the area of his scars. The examiner noted the area was most tender when the Veteran sat. The examiner reported a scar along the rectal area around the left buttock across the lower back and down the right posterior leg to the posterior knee. The scar measured 60 cm in length and 3 cm at its widest point but tapered to one cm. The scar was linear, superficial, hyperpigmented, smooth, flat, and stable. The Veteran reported mild scar pain but presented with no limitation of motion, disfiguration, or muscle loss. No adherence to underlying tissue or abnormal scar texture was noted. The examiner also noted a 10 cm by one cm scar that projected off the first scar noted on the lower left back. This scar was also superficial, normal pigmented, smooth, flat, and stable. The Veteran denied pain of the scar and did not present with any limitation of motion, muscle loss, or disfiguration. In March 2015, the VA received an undated scars disability benefits questionnaire (DBQ) executed by the Veteran’s private physician. The physician indicated that the Veteran had a 15 cm by 15 cm scar in the right gluteal area and a 6 cm by 4 cm scar in the left gluteal area. The Veteran had consistent discomfort, a propensity for abscesses, and consistent drainage. No elevation, depression, adherence to underlying tissue, missing underlying soft tissue, or abnormal pigmentation or texture were noted. After a review of the evidence, both lay and medical, the Board finds that an initial rating in excess of 10 percent for a residual painful scar is not warranted. The evidence of record indicates that the Veteran, at most, has two residual painful scars. This is consistent with a rating of 10 percent, but no higher, under DC 7804. As discussed previously, the Board has considered the application of other diagnostic codes in order to afford the Veteran a disability rating in excess of 10 percent but does not find any raised by the evidence of record. As the preponderance of the evidence is against the claim for a rating higher than 10 percent, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel