Citation Nr: 18150741 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-49 891 DATE: November 15, 2018 ORDER Entitlement to an increased disability rating in excess of 10 percent for a superficial scar that is painful on examination, as secondary to the service connected disability of open heart surgery for mitral valve repair is denied. REMANDED Entitlement to a separate compensable rating for residual linear scar based upon limitation of muscle function, as secondary to the service connected open heart surgery for mitral valve repair is remanded. FINDING OF FACT For the entire period on appeal, the Veteran’s single service-connected superficial scar has been located on his abdominal area, and has been painful, without loss of covering of skin over the scar. The scar is shown to be stable on objective examination. CONCLUSION OF LAW The criteria for entitlement to an increased disability rating in excess of 10 percent for superficial scars that are painful on examination, as secondary to the service connected disability of open heart surgery for mitral valve repair, have not been met or approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 3.321, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Navy from June 1966 to May 1983. This matter comes to the Board on appeal from an April 2016 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). Entitlement to an increased disability rating in excess of 10 percent for a superficial scar that is painful on examination, as secondary to the service connected disability of open heart surgery for mitral valve repair 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 percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings). It is the Board’s responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The applicable rating criteria for skin disorders under 38 C.F.R. § 4.118 were amended, effective August 30, 2002 [see 67 Fed. Reg. 49490-99 (July 31, 2002)] and again in October 2008. The October 2008 revisions are applicable to claims for benefits received by VA on or after October 23, 2008. See 73 Fed. Reg. 54708 (September 23, 2008). In this case, the Veteran’s scar is the result of a 2007 open heart surgery for mitral valve replacement, and therefore, his informal claim for service connection for his scar was not received by VA prior to October 2008. Accordingly, the Board will only consider the criteria effective in October 2008. With regard to the criteria in effect as of October 23, 2008, the Board notes that Diagnostic Code 7805 evaluates scars, other (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. This diagnostic code notes that any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-4, should be evaluated under an appropriate diagnostic code. In this case, the Veteran’s scar was originally rated under this code as the other codes did not contain criteria applicable to the Veteran. Diagnostic Code 7800 evaluates disfigurement of the head, face, or neck. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2017). Diagnostic Code 7801 evaluates scars based upon their size that are not located on the head, face, or neck, and that are deep and nonlinear. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2017). Diagnostic Code 7802 assigns a 10 percent rating for scars covering an area or areas of 144 square inches (929 square centimeters) or greater that are not located on the head, face, or neck, that are superficial and nonlinear. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2017). Diagnostic Code 7804 evaluates painful or unstable scars. A 10 percent evaluation is awarded for one or two scars that are unstable or painful. A 20 percent evaluation is awarded for 3 or 4 scars that are unstable or painful. A 30 percent evaluation is awarded for 5 or more scars that are unstable or painful. Under note 1, an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Under note 2, if one or more scars are both unstable and painful, an additional 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7804. In the instant case, the Veteran was service connected for a superficial scar that is painful on examination, as secondary to the service connected disability of open heart surgery for mitral valve repair, pursuant to Diagnostic Code 7804 and was awarded a 10 percent rating. There is no evidence in the record that the Veteran has more than one scar. The Veteran was afforded a VA examination in April 2016 during which the VA examiner noted that the inferior end of the Veteran’s linear scar on the sternum was painful and tender. The examiner also noted that the scar was not unstable. The Veteran was afforded a second VA examination in August 2017 during which the examiner noted that the Veteran’s surgical scar was painful. He indicated that the mitral valve repair had healed with a large, thickened keloid scar with significant traction on surrounding tissues including itching and pain. The examiner also reported that the scar was not unstable. There is no evidence that the examiners were not competent or credible, and as the examination was based on the medical evidence and physician evaluations of the Veteran, the Board finds they are entitled to significant probative weight as to the severity of the Veteran’s superficial and painful scar at the time of the examination. Nieves-Rodriguez, 22 Vet. App. 295. In June 2016, as part of Notice of Disagreement, the Veteran stated that the pain in his scar had worsened, he experienced continuous bleeding in the area where his scar is located, and has the sensation of his chest ripping apart. The Veteran is competent to attest to observable symptoms, such as pain and bleeding in relation to his scar. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The medical records do not contain reports by the Veteran or the examiner of bleeding in the area where the Veteran’s scar is located. The record also does not contain any lay statements from the Veteran concerning a bleeding or otherwise unstable scar. As both VA examinations report consistent results in relation to the stability of the scar and the only evidence that the scar may be unstable is the Veteran’s June 2016 lay statement, the Board gives more probative weight to the findings of the VA examiner in relation to the condition of the scar. Because the Veteran’s scar is not both painful and unstable, a disability rating in excess of 10 percent is not warranted. Based on the foregoing, the preponderance of the evidence is against an increased rating in excess of 10 percent for the Veteran’s superficial scar that is painful on examination. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. REASONS FOR REMAND Entitlement to a separate compensable rating for residual linear scar based upon limitation of muscle function, as secondary to the service connected open heart surgery for mitral valve repair is remanded. During the August 2017 VA examination, the examiner reported that the Veteran’s scar caused limitation of function. Specifically, the examiner indicated that the Veteran’s “scar limits his ability to flex/extend his chest as with deep breathing or twisting.” Pursuant to Diagnostic Code 7805, the disabling effects of scars can be evaluated pursuant to other diagnostic codes if those disabling effects are not contemplated by diagnostic codes 7800-04. As there is medical evidence in the record that the Veteran’s scar may have limited his ability to use his abdominal muscles, Diagnostic Code 5319, Abdominal Muscle Group is the most appropriate diagnostic code to evaluate the extent of the Veteran’s limitation. As such, a new VA examination of the Veteran’s abdominal muscles is warranted to evaluate the extent of the limitation imposed by his scar. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination. The examination should be performed in accordance with the DBQ for the chest (abdominal muscle group) to ascertain whether there is functional limitations of his abdominal muscles caused by the Veteran’s service-connected scar, and if so, the extent of such limitation. The DBQs should be filled out completely as relevant. All findings, conclusions, and opinions must be supported by a clear rationale. The electronic claims file, to include the Veteran’s service treatment records, lay statements and testimonies, and treatment records, must be reviewed by the examiner, and a note that it was reviewed should be included in the report. (Continued on the next page)   2. Then, after conducting any other development deemed necessary, readjudicate the Veteran’s claim. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. White, Associate Counsel