Citation Nr: 18150111 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-45 802 DATE: November 14, 2018 ORDER Entitlement to a compensable rating for abdomen scars is denied. REMANDED Entitlement to service connection for a cervical spine condition, to include as secondary to lumbar spine disability, is remanded. REFERRED The issue of entitlement to a compensable rating for a six-inch scar on the lumbar spine was raised in a March 2015 statement and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDING OF FACT The probative evidence of record does not show that the Veteran experiences pain or instability in residual scars located on her abdomen. CONCLUSION OF LAW The criteria for a compensable rating for scars, abdomen have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the U.S. Marine Corps from January 1990 to February 1992. 1. Entitlement to a compensable rating for scars, abdomen. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson, 12 Vet. App. at 126. The Veteran’s scars are currently rated under 38 C.F.R. § 4.118, schedule of ratings for disorders of the skin, under Diagnostic Code 7804. During the pendency of the Veteran’s claim and appeal, the criteria for rating disabilities of the skin were changed by an amendment to the rating schedule that became effective on August 13, 2018. See 83 Fed. Reg. 32,592 (July 13, 2018). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change. However, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In this case, the changes to the relevant Diagnostic Codes pertain only to the title of the scar codes and the notes following the codes. The Board will first address the regulations in effect prior to August 13, 2018. Diagnostic Code 7805 provides that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under diagnostic codes 7800, 7801, 7802, and 7804 under an appropriate diagnostic code. 38 C.F.R. § 4.118. Diagnostic Code 7800 contemplates scars of the head, face, or neck. 38 C.F.R. § 4.118, Diagnostic Code 7800. As the Veteran’s service-connected scars are located on her lower abdominal area, a compensable rating is not warranted under Diagnostic Code 7800. Id. Diagnostic Code 7801 provides ratings for burn or other scars (not on the head, face, or neck) that are deep and nonlinear. Deep and nonlinear scars involving an area or areas of at least 6 square inches (39 sq. cm) but less than 12 square inches (77 sq. cm.) are rated 10 percent. Scars in an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) are rated 20 percent. Scars in an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) are rated 30 percent. Scars in an area or areas of 144 square inches (929 sq. cm.) or greater are rated 40 percent. 38 C.F.R. § 4.118. Note (1) specifies that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801. Note (2) specifies that if multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under §4.25. Qualifying scars are scars that are nonlinear, superficial, and are not located on the head, face, or neck. 38 C.F.R. § 4.118, Diagnostic Code 7801. Diagnostic Code 7802 provides a maximum 10 percent rating for a burn or other scars that are superficial and nonlinear involving an area of 144 square inches (929 sq. cm) or greater. Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage. Note (2) specifies that if multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under §4.25. Qualifying scars are scars that are nonlinear, superficial, and are not located on the head, face, or neck. 38 C.F.R. § 4.118, Diagnostic Code 7802. Diagnostic Code 7804 provides a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a 30 percent rating for five or more scars that are unstable of painful. 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, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Code 7804, when applicable. 38 C.F.R. § 4.118, Diagnostic Code 7804. In every instance where the schedule does not provide a 0 percent rating for a diagnostic code, a 0 percent rating will be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. Under the amended criteria which became effective on August 13, 2018, Diagnostic Codes 7800 and 7804 were not changed. 38 C.F.R. § 4.118. Diagnostic Code 7801 now provides for burn scars of scars due to other causes, not of the head, face, or neck that are associated with underlying soft tissue damage. The rating criteria for this code remained the same. But Note (1) now reads: For the purposes of Diagnostic Codes 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Note (2) now reads: A separate evaluation may be assigned for each affected zone of the body. Combine the separate evaluations under §4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. 38 C.F.R. § 4.118. Under the amended criteria which became effective on August 13, 2018, Diagnostic Code 7802 now provides for burn scars or scars due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. The rating criteria remained the same. But Note (1) now reads: For the purposes of Diagnostic Codes 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Note (2) now reads: A separate evaluation may be assigned for each affected zone of the body. Combine the separate evaluations under §4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. 38 C.F.R. § 4.118. Diagnostic Code 7805 was amended in that the parentheses which noted that linear scars were included was removed. The title now provides for scars, other and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804. The rating criteria remained the same. 38 C.F.R. § 4.118. Moving on to the facts of the case, post-service treatment records show a history of surgery in form of a hysterectomy and laparoscopic surgery for endometriosis and fibroids, as well as low back surgery, but are silent as to complaints of pain or changes in her skin with respect to her scars. The Veteran was afforded a VA examination for gynecological conditions in January 2016. The examiner found the Veteran had scars related to her hysterectomy, but noted that the scar was not painful, unstable, or greater than 39 square centimeters. During the January 2016 VA spine examination, the examiner found a scar on the low, midline abdomen, below the umbilicus that was measured at 10 cm long and 0.4cm wide. The scar was not considered painful or unstable. The examiner noted the Veteran had abdominal approach for lumbar disc surgery. Based on the foregoing, the Board finds that the Veteran is not entitled to a higher rating for the abdominal scar. Both VA examinations conducted during the appeal period indicated the scar located on her lower abdominal area was stable and did not cause any pain or any other reported discomfort. A compensable rating is not warranted unless her scar is considered painful or unstable or covers more than 144 square inches. There is no other evidence of record showing any change in the Veteran’s scar; specifically, she has not made any specific claims regarding new symptoms or transformation of her skin. Therefore, a compensable rating is not warranted at any point during the appeal period. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine condition, to include as secondary to lumbar spine, is remanded. The Board finds that the opinion accompanying the February 2014 VA examination is inadequate as it failed to provide a complete rationale discussing secondary service connection. Specifically, the examiner opined that her neck condition was not proximately due to or the result of her service connected lumbar spine disability because there were no complaints or abnormal physical findings related to the cervical spine during military service, and until 2006. Private treatment records show the physician found the Veteran’s neck condition to be of similar nature to his lumbar spine disability; however, the statement does not discuss causality. On remand, an addendum VA opinion should be sought discussing both causation and aggravation of the Veteran’s cervical spine disability as it relates to her lumbar spine. The matter is REMANDED for the following action: 1. Obtain any outstanding treatment records relevant to the claim on appeal. 2. Obtain an addendum opinion as to the etiology of the Veteran’s claimed neck condition. Specifically, the examiner is asked to determine whether the Veteran’s cervical spine condition was caused OR aggravated by her service-connected lumbar spine disability. A fully articulated medical rationale for any opinion expressed should be set forth in the report. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Price, Associate Counsel