Citation Nr: 18147625 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 17-24 131 DATE: November 6, 2018 ORDER Prior to February 21, 2017, entitlement to a 30 percent initial evaluation, but no greater, for service-connected scars of the left upper extremity and bilateral lower extremities with retained foreign bodies is granted, subject to the criteria governing the payment of monetary benefits. From February 21, 2017, entitlement to a 40 percent initial evaluation, but no greater, for service-connected scars of the left upper extremity and bilateral lower extremities with retained foreign bodies is granted, subject to the criteria governing the payment of monetary benefits. FINDINGS OF FACT 1. Prior to February 21, 2017, the Veteran’s service-connected scars of the left upper extremity and bilateral lower extremities with retained foreign bodies were manifested by more than 5 painful, but stable, scars. 2. From February 21, 2017, the Veteran’s service-connected scars of the left upper extremity and bilateral lower extremities with retained foreign bodies were manifested by more than 5 painful, and one scar that is both painful and unstable. 3. Throughout the appeal period, there is no evidence that the Veteran’s service-connected scars of the left upper extremity and bilateral lower extremities with retained foreign bodies were manifested by scarring of the head, face, or neck, burn scars, damage of an underlying muscle group, or limitation of functioning or motion of any affected body part(s). CONCLUSIONS OF LAW 1. Prior to February 21, 2017, the criteria for a 30 percent initial evaluation, but no greater, for service-connected scars of the left upper extremity and bilateral lower extremities with retained foreign bodies are met. 38 U.S.C. §§ 1155, 5107 (2002); 38 C.F.R. §§ 4.1-4.4, 4.118, Diagnostic Code 7804 (2017). 2. From February 21, 2017, the criteria for a 40 percent initial evaluation, but no greater, for service-connected scars of the left upper extremity and bilateral lower extremities with retained foreign bodies are met. 38 U.S.C. §§ 1155, 5107 (2002); 38 C.F.R. §§ 4.1-4.4, 4.118, Diagnostic Code 7804, Note (2) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from February 2007 to September 2014, to include service in the Persian Gulf. He is in receipt of a Combat Action Ribbon and Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which, among other actions, established service connection for scars of the left upper extremity and bilateral lower extremities with retained foreign bodies; a noncompensable (zero percent) initial evaluation was assigned from September 2, 2014 – the day after the Veteran’s separation from active duty. The Veteran expressed timely disagreement with the assigned initial evaluation, and the present appeal ensued. In a March 2017 Decision Review Officer (DRO) decision, the Agency of Original Jurisdiction (AOJ) partially granted the issue on appeal. The initial noncompensable evaluation was increased to 10 percent, effective from September 2, 2014 – the date of the award of service connection for this disability. As this partial allowance did not represent a full grant of the benefits sought, the issue remined in appellate status and is properly before the Board. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). 1. Entitlement to an initial evaluation in excess of 10 percent for service-connected scars of the left upper extremity and bilateral lower extremities with retained foreign bodies Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Each service connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1 (2017). Where the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of a veteran's disability. Schafarth v. Derwinski, 1 Vet. App. 589, 594 (1991). The Veteran’s service-connected scars of the left upper extremity and bilateral lower extremities are evaluated 10 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 7804, pertaining to painful and/or unstable scars. While the Board notes that the rating criteria for scars changed, effective October 23, 2008, the Veteran’s initial claim was filed subsequent to this revision, and thus, only the current criteria of this Diagnostic Code are applicable. Diagnostic Code 7804 provides that one or two scars that are unstable or painful warrant a 10 percent rating; three or four scars that are unstable or painful warrants a 20 percent rating; and five or more scars that are unstable or painful warrant a 30 percent rating. Note (1) to Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) to Diagnostic Code 7804 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) to Diagnostic Code 7804 provides that scars evaluated under diagnostic codes 7800, 7801 ,7802, or 7805 may also receive an evaluation under Diagnostic Code 7804 when applicable. 38 C.F.R. § 4.118, Diagnostic Code 7804. Analysis The Veteran asserts that the manifestations of his service-connected scars of the left upper extremity and bilateral lower extremities are more congruent with the criteria for an increased initial evaluation under Diagnostic Code 7804. After a review of the complete record, and for the reasons stated below, the Board agrees. An August 2015 VA examination report reflects that the Veteran has a total of 12 scars affecting his left arm and both legs, 11 from an in-service improvised explosive device (IED) explosion and one is residual of removal of a pilonidal cyst of the left shoulder. Of these scars, the examiner noted the Veteran’s reports of pain in the residual IED scars due to retained foreign bodies. At that time, no scars were reported to be unstable or productive of impaired motion of any affected body parts. A December 2015 VA examination report reflects that the Veteran incurred more than 5 shrapnel scars with retained foreign bodies from the in-service IED explosion, and that none were painful or unstable. A more thorough examination of the Veteran was provided in February 2017, and x-ray testing confirmed the presence of retained metallic foreign bodies from the in-service IED explosion, although the exact quantity is unclear. The x-ray report reflects one retained metallic foreign body in the Veteran’s lower right leg, “a couple” in his left arm, “multiple” in his upper left leg, and “a couple” in his lower left leg. Upon physical examination, the Veteran reported pain in all of the scars with retained metallic foreign bodies from the IED commented that no such pain was perceived explosion, claimed as constant, throbbing, and scratching; however, the examiner observed that no evidence of pain or tenderness of the scars was perceived during the examination. Further, one of the Veteran’s shrapnel scars (left elbow) was noted to be unstable, losing skin from being dry and irritated. No further residuals from the IED explosion or shrapnel wounds were identified, including loss of motion of the effected body parts or to the underlying muscle groups. In addition to the medical evidence recounted above, the record includes the Veteran’s statements asserting that his service-connected scars are painful. See e.g., statements from the Veteran dated in February 2016 and April 2017. Concerning these lay statements, while he does not have the medical training necessary to be able to competently and credibly provide a medical nexus or diagnosis, he is considered competent and credible to report symptoms that he experiences first-hand, such as pain at the sites of his scars. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). To the extent that his reported pain may not have been perceived by the December 2015 and February 2017 VA examiners, the Board concludes that the evidence on this point is at least in equipoise. Moreover, the question before the Board is whether the Veteran’s service-connected scars are painful, not whether the Veteran’s pain is perceived or observed by anyone else. In sum, the most probative evidence reflects that the Veteran service-connected scar disability was manifested by more than 5 painful scars throughout the appeal, and thus, the criteria for a 30 percent evaluation is warranted since the date of the award of service connection for this disability. Further, as the February 2017 VA examination report reflects that one of the Veteran’s service-connected painful scars was also unstable, an additional 10 percent must be added to the 30 percent initial evaluation under Note (2) of Diagnostic Code 7804, resulting in a 40 percent initial evaluation from February 21, 2017 – the date of the evidence initially meeting the criteria. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (2) (2017). The Board has also considered whether a further increased initial evaluation is warranted under any applicable criteria. However, there is no evidence during the appeal period, to include from the Veteran, that his service-connected scars are manifested by scarring, including due to burns, of the head, face, or neck, damage of an underlying muscle group, or limitation of functioning or motion of any affected body part(s). As such, Diagnostic Codes 7800-7805 are not for application, and a further increased evaluation is not warranted during the appeal period. 38 C.F.R. § 4.118. The Board finds that the Veteran has not raised the matter of an extraschedular evaluation and that the evidence does not present exceptional or unusual circumstances. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either a Veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances). As such, no further action as to this matter is required. Lastly, the Board has also considered the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher evaluations also include a claim for a total disability rating based on individual unemployability (TDIU) when the appellant claims he is unable to work due to a service connected disability). However, the Board finds that Rice is not applicable to the current appeal because the Veteran does not claim, and the record does not show, that his service-connected scar disability, acting alone or in conjunction with his other disabilities prevents gainful employment during the time frame on appeal. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott W. Dale, Counsel