Citation Nr: 18143429 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 15-06 511 DATE: October 19, 2018 ORDER Entitlement to a 10 percent rating for a shrapnel wound scar on the right knee is granted, subject to the regulations governing the payment of monetary awards. REFERRED A review of the record shows that when the Veteran filed his claim for benefits in August 2014, he phrased it as a claim for “right knee shrapnel residuals.” This was interpreted by the Agency of Original Jurisdiction (AOJ) to be an increased rating claim for his service-connected shrapnel wound scar on the right knee, and his claim was developed and adjudicated solely on that basis. However, based on the evidence the Veteran submitted in support of his claim as well as the clarification he provided at the October 2018 video conference hearing before the Board, it appears the Veteran also seeks service connection for any residuals of the shrapnel wound (other than a scar) that may be present in his right knee. As this has not been addressed by the AOJ, the Board does not have jurisdiction over such claim and the issue of entitlement to service connection for residuals of a shrapnel wound in the right knee other than a scar is referred to the AOJ for appropriate development and adjudication. 38 C.F.R. § 19.9. FINDING OF FACT It is reasonably shown by the record that the Veteran’s right knee scar is painful. CONCLUSION OF LAW The criteria for entitlement to a 10 percent rating, but no higher, for a shrapnel wound scar on the right knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.31, 4.118, Diagnostic Codes (DCs) 7801, 7804, 7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1943 to March 1946. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision. The Veteran testified via video conference at a hearing before the Board in October 2018. Entitlement to a compensable rating for a shrapnel wound scar on the right knee Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). “Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.” Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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 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 a matter. VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361. The Veteran seeks a compensable rating for his service-connected shrapnel wound scar on the right knee. Under VA regulations, scars can be rated either based on the size of the scars or based on the number of scars that are painful or unstable. 38 U.S.C. § 501; 38 C.F.R. § 4.118, DCs 7801, 7804, 7805. Under Diagnostic Code 7801 a 10 percent rating is a warranted where there are at least 6 square inches but less than 12 square inches of scarring; a 20 percent rating is warranted where there are at least 12 square inches but less than 72 square inches of scarring; a 30 percent evaluation is warranted where there are at least 72 square inches but less than 144 square inches scarring; and a 40 percent rating is warranted where there are at least 144 square inches of scarring. Under Diagnostic Code 7804 a 10 percent evaluation is warranted where there are one or two scars that are unstable or painful; a 20 percent evaluation is warranted where there are three or four scars that are painful or unstable; and a 30 percent evaluation is warranted where there are five or more scars that are painful or unstable. In every instance where the scheduled does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The October 2014 VA examination documents that the Veteran’s scar is well-healed, not unstable, and measures 2 cm x 3 cm. An August 2014 examination report from the Veteran’s treating physician documents tenderness in the area of the scar, and the Veteran testified at the October 2018 Board hearing that his scar is painful. The Board finds that it is reasonably shown by the evidence of record that the Veteran has one painful scar. However, because of the size of the scar, and the fact that the evidence of record only discloses a single painful scar less than 6 square inches, the Veteran’s condition only meets the criteria for a 10 percent rating. 38 U.S.C. §§ 1155; 38 C.F.R. § 4.118, Diagnostic Code 7804. Significantly, the Veteran testified at the October 2018 Board hearing that a 10 percent rating for the painful scar on the anterior of his right knee would be completely satisfactory as to his claim on appeal. Consequently, the Board finds that a 10 percent rating constitutes a complete grant of the Veteran’s claim as to this issue. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (recognizing that a claimant may limit the claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum allowed by law for a particular service-connected disability). (CONTINUED ON NEXT PAGE) A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel