Citation Nr: 18148848 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 13-15 053 DATE: November 8, 2018 ORDER Entitlement to a rating in excess of 10 percent prior to February 7, 2017 for service connected hemorrhoids is denied. Entitlement to a rating in excess of 20 percent since February 7, 2017 for service connected hemorrhoids is denied. Entitlement to a rating in excess of 10 percent for burns with scarring of the right arm is denied. FINDINGS OF FACT 1. Prior to February 7, 2017, the weight of the evidence is against finding the Veteran’s service connected hemorrhoids had fissures or persistent bleeding and secondary anemia. 2. Since February 7, 2017, the Veteran’s hemorrhoids disability has been rated at the highest schedular evaluation allowed under the law. 3. The evidence of record demonstrates that for the entirety of the appeal period, the Veteran’s burns with scarring of the right arm has been productive of a 40sq. cm. linear scar, a 65sq. cm. linear scar, and a 12.5sq. cm. linear scar; none of the scars are deep or cause limitation of motion in an area or area exceeding 6sq. inches or causes limitation of function of the affected part. CONCLUSIONS OF LAW 1. Prior to February 7, 2017, the criteria for a disability rating in excess of 10 percent for the Veteran’s service connected hemorrhoids are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.118, Diagnostic Code 7336 (2018). 2. Since February 7, 2017, the criteria for a disability rating in excess of 20 percent for the Veteran’s service connected hemorrhoids are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.118, Diagnostic Code 7336 (2018). 3. The criteria for entitlement to a rating in excess of 10 percent for service connected burns with scarring of the right arm have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1-4.7, 4.14, 4.21, Diagnostic Code 7805-7802 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from October 1981 to October 1984, and from January 1986 to December 1986. The Veteran was afforded a hearing before the undersigned in September 2016. A transcript is of record. A September 2016 Board decision remanded the appeal for further development. That development has been accomplished, and the claim has now been returned to the Board for further action. Stegall v. West, 11 Vet. App. 268 (1998). A June 2017 remand granted a 20 percent increased rating for service connected hemorrhoids. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2018). The Board must consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). However, the Board has been advised to consider factors outside the specific rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2018). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2018). A veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1 (2018); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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 the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating in excess of 10 percent prior to February 7, 2017 for service connected hemorrhoids 2. Entitlement to a rating in excess of 20 percent since February 7, 2017 for service connected hemorrhoids The Veteran asserts that his service connected hemorrhoids is more severe than his current disability ratings reflect. During the appeal period, he has been rated as noncompensably effective August 1988, 10 percent disabling effective January 27, 2011, and as 20 percent disabling effective February 7, 2017. The hemorrhoid disability is rated under Diagnostic Code 7336. The rating schedule provides for a non-compensable (0 percent) rating for mild or moderate internal or external hemorrhoids. 38 C.F.R. § 4.114, Diagnostic Code 7336. Large or thrombotic hemorrhoids, irreducible, with excessive redundant tissue, evidencing frequent recurrences, are rated 10 percent disabling. Hemorrhoids with persistent bleeding and with secondary anemia, or with fissures, are rated 20 percent disabling. A June 2011 VA examination report reflected frequent bleeding from hemorrhoids with a recurrence without thrombosis of four times or more per year. The examiner noted two pea-sized external hemorrhoids without bleeding or fissures present. The examiner found no internal hemorrhoids and no anemia. A February 2017 VA examination records the Veteran’s history of hemorrhoid banding in 2000 and recurrent bleeding and intermittent problems with rectal bleeding since then. The Veteran reported external hemorrhoids with occasional bleeding with anal fissures. The examiner opined there was no evidence the Veteran’s hemorrhoidal bleed caused anemia as he had documentation of normal iron stores and no anemia reported. The examiner further opined the Veteran’s rectal issues were attributed to anal fissure rather than hemorrhoid. Medical treatment records dated December 2012 reflect no anal fissures or masses with right lateral thrombosed external hemorrhoids. December 2017 medical treatment records note the Veteran was prescribed nitroglycerin ointment for anal fissures and hemorrhoids. Intermittent hemorrhoid bleeding was noted throughout medical treatment records. Based on the foregoing evidence, the Board finds that a rating in excess of 10 percent for the Veteran’s hemorrhoids is not warranted prior to February 7, 2017. The evidence reflects that the Veteran experienced intermittent external hemorrhoid bleeding, but no objective medical evidence reflected anal fissure or persistent bleeding with secondary anemia during this time. The Veteran was granted a 20 percent rating for his hemorrhoids as of February 7, 2017 due to evidence of anal fissure. Twenty percent is the highest schedular evaluation available for hemorrhoids. Moreover, the Veteran does not assert that referral for extraschedular consideration is warranted, and the record does not otherwise reasonably raise the matter. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). 3. Entitlement to a rating in excess of 10 percent for service connected burns with scarring of the right arm The Veteran similarly asserts that his service connected burns with scarring of the right arm is more severe than his current disability rating reflects. His skin disability has been rated as 10 percent disabling under Diagnostic Code 7805 and Diagnostic Code 7805-7802 respectively since August 1988. The criteria for rating scars were revised effective October 23, 2008. 73 Fed. Reg. 54,708 (Sept. 23, 2008) (codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7805). The amendment applies to all applications for benefits received by VA on or after October 23, 2008. 73 Fed. Reg. 54708 -54710 (Sept. 23, 2008); see also 38 C.F.R. § 4.118. Because the Veteran’s claim was filed after October 23, 2008, the revised criteria will be applied to the claim. Under the current rating criteria in effect from October 23, 2008, Diagnostic Code 7801 evaluates scars, not of the head, face, or neck, which are deep and nonlinear. A 10 percent rating is assigned for an area or areas of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters), with higher ratings being available for larger affected areas. Note (1) indicates that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2018). Superficial and nonlinear scars not on the head, face, or neck are evaluated under Diagnostic Code 7802. Under this Diagnostic Code, a compensable rating is not available unless such scars cover an area of at least 144 square inches (929 square centimeters). Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2018). Diagnostic Code 7804 (there is no Diagnostic Code 7803) assigns ratings for scars that are unstable or painful. This Diagnostic Code assigns a 10 percent rating for one or two qualifying scars, a 20 percent rating for three or four qualifying scars, and a 30 percent rating for five or more qualifying scars. 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, 10 percent is added to the evaluation 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. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2018). Under Diagnostic Code 7805, any other scars, including linear scars, are to be rated based on any disabling effects and the appropriate diagnostic code for such effects. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2019). The Board notes that the criteria for rating skin disorders was again changed effective August 13, 2018. See 83 Fed. Reg. 32592 (July 13, 2018). As affecting scars under Diagnostic Codes 7801, 7802 and 7805, the amended criteria added notes to identify the six zones of the body for determining the potential applicability of separate ratings for multiple scars affecting different areas, or for a scar involving a large area. In the instant appeal, the Veteran’s scars all are located in the right upper extremity. As each extremity is considered a “zone” under the amended criteria, there is no basis for separate evaluations for the scars under the amended criteria. The Veteran states that the scar on his arm has become painful to touch and is sensitive to sunlight. He further contends that his arm scar limits his range of motion. A June 2011 VA examination noted two lineal scars on the Veteran’s right upper extremity. The examiner noted there was no skin breakdown over the scars with no reports of pain. The examiner also noted the scars were superficial, without inflammation or edema, did not have any keloid formations, and had no other disabling effects. The area of the first scar measured at least 12 square inches but less than 72 square inches, and the area of the second scar was less than 6 square inches. A February 2017 VA examination report recorded the Veteran’s complaints of a painful scar that was sensitive to sunlight. The examiner reported three scars on the Veteran’s right upper extremity. The examiner noted all scars were superficial with some hyperpigmentation, had smooth skin not sensitive to touch, and had no keloid formations or depressions. The first scar measured 13 x 5cm with a total area of 65 square centimeters, the second scar measured 8 x 5cm with a total area of 40 centimeters squared, and the third scar measured 5 x 2.5cm with a total area of 12.5 centimeters squared. The examiner further opined that none of the Veteran’s scars resulted in limitation of function. Medical treatment records reflect the Veteran’s assertions of his scar sensitivity to sunlight, but do not reflect any criteria required by the appropriate Diagnostic Codes to assess disability ratings. Upon review of all the evidence of record, both lay and medical, the Board finds that the Veteran’s scars do not more nearly approximate a rating in excess of 10 percent. Diagnostic Code 7801 allows for a 20 percent rating where scars that are deep and nonlinear have an area or areas exceeding 12 square inches (77 sq. cm). Here, both VA examiners described the Veteran’s scars as lineal. As such, a rating in excess of 10 percent is not warranted under Diagnostic Code 7801. Diagnostic Code 7802 provides for a 10 percent rating for a scar other than on the head, face, or neck, that is superficial and nonlinear and measures an area or areas of 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802. As a 10 percent rating is the maximum rating allowed under Diagnostic Code 7802, a rating in excess of 10 percent under this diagnostic code is not permissible for the Veteran’s scars as he is already in receipt of a 10 percent evaluation. Diagnostic Code 7804, provides a 10 percent rating for one or two unstable or painful scars. A 20 percent rating is warranted for three or four scars that are unstable or painful. Both VA examiners found the Veteran’s upper right extremity scars were not painful or tender, and as such, a higher rating under Diagnostic Code 7804 is not warranted. The Board has also considered the Veteran’s statements that his disability is worse than what is contemplated by the currently assigned 10 percent disability rating. In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of his scars according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s scars has been provided by the medical examiners who examined him during the current appeal and who rendered pertinent opinions in conjunction with the evaluation. The medical findings, as provided in the VA examination reports discussed above, directly addresses the criteria under which this disability is evaluated. For these reasons, the Board finds that the weight of the evidence is against a finding of a rating in excess of 10 percent for the service connected burns with scarring of the right arm. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. (2018). Additionally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Peden, Associate Counsel