Citation Nr: 18148581 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-37 744 DATE: November 8, 2018 ORDER Entitlement to an initial compensable rating for a right eye scar is denied. REFERRED The issue of entitlement to service connection for a disability manifested by pain from the right brow to the right jaw was raised in a September 2011 statement. That claim has not been developed or certified for appeal. Accordingly, it is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDING OF FACT The Veteran’s right eye scar is not manifested by one or more characteristic of disfigurement, it is not deep, nonlinear, unstable, or painful, and it is not manifested by any other disabling effects. CONCLUSION OF LAW The criteria for an initial compensable disability rating for a right eye scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.118, Diagnostic Code 7800. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January to May 1976, and in March 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran was scheduled to testify at a hearing before the Board in October 2018. An August 2018 letter notified the Veteran of the date, time, and location of the hearing. However, he did not appear for this hearing and did not provide a reason for his failure to appear or request that the hearing be rescheduled. Accordingly, the hearing request has been withdrawn, and the Board will proceed with appellate review. See 38 C.F.R. § 20.704(d) (a failure to appear for a scheduled hearing without good cause will be processed as though the request for a hearing had been withdrawn). Pursuant to the Veterans Claims Assistance Act, VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (“the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, an evaluation of the medical evidence since the effective date of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s right eye scar has been rated under 38 C.F.R. § 4.118, Diagnostic Code 7800. Diagnostic Code 7800 provides ratings for disfigurement of the head, face, or neck. Note (1) to Diagnostic Code 7800 provides that the 8 characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118, are: a scar that is 5 or more inches (13 or more cm.) in length; a scar that is at least one-quarter inch (0.6 cm.) wide at the widest part; where the surface contour of scar is elevated or depressed on palpation; where the scar is adherent to underlying tissue; where the scar is hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); where the skin texture of the scar is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); where the underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.); and where the skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Diagnostic Code 7800 provides that a skin disorder with one characteristic of disfigurement of the head, face, or neck is rated 10 percent disabling. 38 C.F.R. § 4.118. In a February 2011 VA treatment record, it was noted that the Veteran had a scar under his right eye. In August 2011 VA eye examination noted scarring or disfigurement attributable to an eye condition with visible or palpable tissue loss. At the August 2011 VA scar examination the examiner noted that a hyperpigmented healed linear scar was located on the right cheek, sub-orbital area. There was no skin breakdown over the scar and that the Veteran reported no pain. Upon physical examination, the examiner found that the Veteran’s scar was 0.2 centimeters wide at the widest part and 1.5 centimeters long, superficial, and not painful. There was no inflammation, edema, keloid formation, abnormal texture, hypo- or hyper-pigmentation, underlying soft tissue loss, indurated and/or inflexible skin, elevated or depressed contour, adherence to underlying tissue, or any other disabling effects. The Veteran’s head, face, or neck did not have any feature or set of paired features showing gross distortion or asymmetry. In a September 2011 notice of disagreement, the Veteran believed that his scar was elevated, hyperpigmented, and had an abnormal texture. The appellant, however, did not provide any medical evidence supporting his beliefs. Based on the foregoing, the Board finds that the Veteran’s scar is not manifested by at least one characteristic of disfigurement. While there is some inconsistency as whether the Veteran’s scar is hyperpigmented, the evidence does not show that the scar is either hypo or hyperpigmented in an area exceeding six square inches. The evidence also does not show that the scar is 13 or more centimeters in length or at least 0.6 centimeters wide at the widest part; further the scar is not elevated or depressed on palpation or adherent to underlying tissue. There is no evidence that the scar’s skin texture is abnormal in an area exceeding six square inches, that underlying soft tissue is missing in an area exceeding six square inches, or that skin is indurated and inflexible in an area exceeding six square inches. While the August 2011 VA examination for eye conditions indicate that the Veteran has visible or palpable tissue loss, the VA examination for scars did not reveal evidence of a gross distortion or asymmetry of paired set of features or a characteristic of disfigurement. The scar is therefore not manifested by at least one characteristic of disfigurement or gross distortion or asymmetry of paired set of features, and a compensable rating is not warranted under Diagnostic Code 7800. Id. Furthermore, the evidence preponderates against finding that the right eye scar is deep, that it causes a limitation of motion, that it is objectively unstable or painful, or that it causes any other limitation of the affected part. As such, consideration under Diagnostic Codes 7801, 7802, 7804 or 7805 is not warranted. Id. Hence, a compensable rating for a right eye scar is not warranted. Id. The Board finds the August 2011 VA examiner’s medical findings highly probative to the issue of the severity of the Veteran’s right eye scar. Specifically, the examiner interviewed the Veteran and conducted a physical examination. Moreover, the examiner had the requisite medical expertise and had sufficient facts and data on which to base the conclusions. As such, the Board accords the VA examination opinion great probative weight. The Board has also considered the statement submitted by the Veteran in support of the claim. While he is competent to report observable symptoms he experiences through his senses, Layno v. Brown, 6 Vet. App. 465 (1994), the Board finds the medical findings, as provided in the examination report, are more persuasive and outweighs the Veteran’s statements in support of his claim for a higher disability rating. Accordingly, the Board finds that the preponderance of the evidence weighs against an initial compensable disability for the Veteran’s right eye scar. In reaching this decision the Board considered the fact that the last VA examination was in 2011. There is nothing in the record, and nothing has been offered as evidence, showing that that the nature and extent of this disorder has changed since that time. Moreover, a review of the VA outpatient records dated since does not reveal any pertinent evidence suggesting an increase in the severity of the disorder. Hence, a new examination is not in order. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Ko, Associate Counsel