Citation Nr: 18149885 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 16-42 244 DATE: November 14, 2018 ORDER Entitlement to a compensable evaluation for residual scars from lacerations of the left middle, ring, and little fingers is denied. FINDING OF FACT At no time during the appeal period have the Veteran’s left hand residual scars been shown to be painful, unstable, or of an area at least 6 square (sq.) inches (39 sq. cm). CONCLUSION OF LAW The criteria for establishing a compensable evaluation for residual scars from lacerations of the left middle, ring, and little fingers have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1973 to April 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 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. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran contends that he is entitled to a compensable disability rating for his residual scars from lacerations of the left middle, ring, and little fingers. The Veteran filed his claim for an increased evaluation on December 16, 2015; the Board notes that it has considered the pertinent evidence since December 16, 2014, in conjunction with this decision. See 38 C.F.R. § 3.400(o). Throughout the appeal period, the Veteran has been assigned a noncompensable evaluation under Diagnostic Code 7805. Diagnostic Code 7805 redirects the evaluator to consider appropriate evaluations under Diagnostic Codes 7800 through 7804. The Board notes that Diagnostic Code 7800 is not applicable in this case, as the Veteran’s left hand scars are necessarily not of the head, face and neck. See 38 C.F.R. § 4.118, Diagnostic Code 7800. Under Diagnostic Code 7804, a 10 percent evaluation is assigned for 1 or 2 unstable or painful scars; a 20 percent evaluation is assigned for 3 or 4 unstable or painful scars; and, a 30 percent evaluation is assigned for 5 or more unstable or painful scars. See 38 C.F.R. § 4.118, Diagnostic Code 7804. Note (1) indicates that an unstable scar is one where, for any reason, there is frequent loss of covering over the scar. Additionally, if one or more scars are both unstable and painful, an extra 10 percent will be added to the evaluation that is based on the total number of unstable or painful scars. See Id., Note (2). Other potentially applicable diagnostic codes include 7801 and 7802. Under Diagnostic Code 7801, a 10 percent disability evaluation is assigned when a scar, of an area other than the head, face, and neck, is deep and involves an area or areas of at least 6 square (sq.) inches (39 square cm.) but less 12 sq. inches (77 sq. cm.). A 20 percent disability evaluation is warranted for when it involves an area or areas of at least 12 sq. inches (77 sq. cm.) but is less than 72 sq. inches (465 sq. cm.). A 30 percent disability evaluation is warranted when it involves an area or areas of at least 72 sq. inches (465 sq. cm.) but less than 144 sq. inches (929 sq. cm.). A 40 percent evaluation is warranted when it involves an area or areas of 144 sq. inches (929 sq. cm.) or greater. See 38 C.F.R. § 4.118, Diagnostic Code 7801. A deep scar is one associated with underlying soft tissue damage. See Id., Note (1). Under Diagnostic Code 7802, a 10 percent disability evaluation is assigned when a scar, of an area other than the head, face, and neck, is superficial and involves an area or areas of 144 sq. inches (929 sq. cm.) or greater. See 38 C.F.R. § 4.118, Diagnostic Code 7802. A superficial scar is one not associated with underlying soft tissue damage. See Id., Note (1). Here, on his left hand, the Veteran has two transverse cuticle and nail non-linear scars at the base of the 3rd and 4th fingernails, each measuring 1 x 1 cm. He also has a 2 cm longitudinal linear scar at the volar aspect of the 4th finger. On the 5th finger, he has a linear ridge from the base of the nail to the tip. The Veteran reported that, after the injury, he would have intermittent issues with pain in his fingers. The Veteran also has a history of bilateral carpal tunnel syndrome. Initially, the Board reflects that after review of the Veteran’s VA treatment records associated with the claims file, such records do not demonstrate any specific treatment for in pain or instability of his left hand scars. The Veteran, however, is shown to have treatment for bilateral carpel tunnel syndrome, with a history of surgical intervention for that nonservice-connected disability. In a January 2016 VA examination, the examiner determined that none of the Veteran’s residual scars were painful or unstable or due to burns. The left hand scars were not shown to have a combined area of at least 6 sq. inches (39 sq. cm) during that examination. The scars did not result in limitation of function, nor did they impact the Veteran’s ability to work. The Board acknowledges the Veteran’s statement in his March 2016 Notice of Disagreement that the examiner at the January 2016 VA examination did not ask him if he had any painful sensation in his scars. However, in the Veteran’s May 2016 VA examination, the examiner again stated that none of the Veteran’s scars were painful. Likewise, that examiner also did not find any of the left hand scars to be unstable during the examination, and the combined area of those scars was not shown to be at least 6 sq. inches (39 sq. cm). In fact, the May 2016 VA examiner determined that the pain in the Veteran’s hand and fingers was due to residuals of the Veteran’s carpal tunnel syndrome, post-surgery, not the scars themselves. The Board recognizes that the Veteran has reported pain in his hands. The Veteran as a lay person is competent to give evidence where he has knowledge of facts or circumstances and where he conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In determining the actual degree of disability, however, contemporaneous medical records and an objective examination by a health professional are more probative of the degree or severity of the Veteran’s impairment. This is particularly so where the rating criteria require analysis of clinically significant symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board also acknowledges the Veteran’s assertion that his scars warrant a higher disability rating, and that his pain, numbness and other symptoms are related to his scars. However, the Board finds that the Veteran, who lacks medical training, is not competent to give evidence of the medical significance or reason for his symptoms. Id. The Veteran lacks the adequate medical expertise to render a medical opinion as to the nature of his medical symptoms or disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Jones v. West, 12 Vet. App. 383, 385 (1999). Instead, the Board finds the January 2016 and May 2016 VA examination reports to be the most probative evidence of record concerning the Veteran’s residual scars from lacerations of the left middle, ring, and little fingers. In particular, the May 2016 VA examiner’s opinion that the Veteran’s claimed pain and other symptoms are related to his carpel tunnel syndrome and not his scars is highly probative; such opinion is logical and well-reasoned and based on consideration of the Veteran’s reported history, medical treatment records, and claims file. Thus, the Board is satisfied that the May 2016 VA examiner’s assessment is the most probative evidence of record. As noted above, the Veteran is shown to have four scars on his left hand, none of which is larger than 2 sq. cm. The evidence does not demonstrate that any of those scars are painful or unstable at any time during the appeal period. Nor do the scars result in limitation of function, or otherwise impact the Veteran’s ability to work. Accordingly, the Veteran’s claim for increased evaluation for residual scars from lacerations of the left middle, ring, and little fingers must be denied based on the evidence of record at this time. See 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7801, 7802, 7804, 7805. As a final matter, the Board recognizes that the applicable regulations containing the rating criteria for skin disorders were revised during the pendency of this appeal, effective August 13, 2018. See 38 C.F.R. 4.118; 83 Fed. Reg. 32592 (Jul. 13, 2018). In situations such as this, the Board considers both the former—as discussed above—and the current schedular criteria, although if an increased rating is warranted under the revised criteria, that award may not be made effective before the effective date of the change, even though there is no prohibition against assigning a rating under the older criteria for the entire period on appeal. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), to the extent it held that, where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version more favorable to appellant should apply). In this case, the criteria that were in place when the Veteran filed his claim that led to the March 2016 rating decision under this appeal are not more or less favorable to the Veteran than the revised criteria effective August 2018. See 83 Fed. Reg. 32592 (Jul. 13, 2018). The change in the law does not impact the evaluation of the Veteran’s residual scars, as the changes in Diagnostic Codes 7801 and 7802 are not substantive in nature. Thus, the Board reflects that, under the revised criteria, a compensable evaluation for the Veteran’s residual scars is still denied for the same reasons as those articulated above. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dawn A. Leung, Associate Counsel