Citation Nr: 18150950 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 14-32 577 DATE: November 19, 2018 ORDER A 10 percent rating effective October 17, 2017, for postoperative scar of the right neck is granted. FINDING OF FACT The Veteran reported during his personal hearing that his postoperative scar of the right neck is intermittently painful. CONCLUSION OF LAW The criteria are met for a 10 percent rating for postoperative scar of right neck effective October 17, 2017. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DCs 7800, 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1962 to March 1983. A 10 percent rating effective October 17, 2017, for postoperative scar of the right neck is granted. The Veteran has appealed for a higher rating for the postoperative scar of the right neck, associated with his service connected non-Hodgkins lymphoma. He reports that it is painful at times, especially during cold weather and when moving his shoulder. His scar is currently rated noncompensably, effective from February 2, 2001, under DC 7800. 38 C.F.R. § 4.118. During the pendency of this claim, the VA regulation containing the criteria for rating skin disabilities, 38 C.F.R. § 4.118, was amended multiple times. Unless there is no indication that the revised criteria are intended to have retroactive effect, VA has a duty to adjudicate the claim only under the former criteria for any period prior to the effective date of the new diagnostic codes, and to consider the revised criteria for the period beginning on the effective date of the new provisions. See Wanner v. Principi, 17 Vet. App. 4, 9 (2003); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997); see also VAOPGCPREC 3-2000 (2000) and 7-2003 (2003). Revised statutory or regulatory provisions may not be applied to any time period before the effective date of the change. Id.; see also 38 U.S.C. § 7104(c); Rhodan v. West, 12 Vet. App. 55, 57 (1998), vacated on other grounds by 251 F.3d 166 (Fed. Cir. 1999). However, the reverse is not true with respect to application of former schedular criteria prospectively. Here, the AOJ considered the applicable rating criteria that was in effect at the time of service connection, the criteria that became effective on August 30, 2002, and the criteria that became effective on October 23, 2008 criteria. The Board will therefore also consider the criteria from each period. Prior to August 30, 2002, DC 7800 applied to disfiguring scars of the head, face, or neck. A slight scar warranted a 0 percent rating. A moderate scar that was disfiguring warranted a 10 percent rating. A severe scar, especially if producing a marked and unsightly deformity of eyelids, lips, or auricles, warranted a 30 percent rating. A complete or exceptionally repugnant deformity of one side of the face or marked or repugnant bilateral disfigurement warranted a 50 percent rating. 38 C.F.R. § 4.118 (2001). A separate 10 percent rating was available under DC 7804 for superficial scars that are tender and painful on objective demonstration. Id. A note to DC 7804 indicated that the 10 percent rating will be assigned when the requirements are met, even though the location may be on the tip of the finger or toe, and the rating may exceed the amputation value involvement. Id. Effective from August 30, 2002, DC 7800 applied to disfigurement of the head, face, or neck. One characteristic of disfigurement warranted a 10 percent rating. With visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features; or, with two or three characteristics of disfigurement warranted a 30 percent rating. With visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features; or, with four or five characteristics of disfigurement warranted a 50 percent rating. With visible or palpable tissue loss and either gross distortion of three or more features or paired sets of features; or, with six or more characteristics of disfigurement warranted an 80 percent rating. 38 C.F.R. § 4.118 (2003). Note (1) to DC 7800 listed the eight characteristics of disfigurement: a scar 5 or more inches in length; a scar at least one-quarter inch wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches; skin texture abnormal in an area exceeding six square inches; underlying soft tissue missing in an area exceeding six square inches; and, skin indurated and inflexible in an area exceeding six square inches. Id. DC 7804 provided for a 10 percent rating for superficial scars that were painful on examination. Id. Effective from October 23, 2008, the language of DC 7800 was unchanged from the August 2002 version, but the language of DC 7804 was amended. Under the updated DC 7804, which is also the current version, one or two unstable or painful scars warrants a 10 percent rating; three or four warrants a 20 percent rating; and, five or more warrants a 30 percent rating. 38 C.F.R. § 4.118 (2009, 2017). After review of the evidence, the Board finds that a 10 percent rating is warranted, starting from October 17, 2017, which is the date of his personal hearing where he reported that his scar was intermittently painful. The Veteran reported that the scar bothered him when it was cold, and when he moves his shoulder. He reported that it did not bother him as much in the summer. This claim was remanded by the Board in February 2018 for a VA examination to investigate the Veteran’s complaints. During the July 2018 VA examination, the examiner found the Veteran’s scar was not painful or unstable. That examination was scheduled in the summer, which is when the Veteran reported he had fewer problems with the scar on his neck. The most recent version of DC 7804 does not require objective identification of pain, or that pain be identified on examination, which was required by the previous versions of DC 7804, and therefore doubt is resolved in the Veteran’s favor. 38 C.F.R. §§ 4.3, 4.118. The Veteran is competent to report his own symptoms, and the Board finds his report of intermittent pain to be credible. The Board finds that it is factually ascertainable that his scar has been painful since he first reported it at his personal hearing. 38 C.F.R. § 3.400. The Board does not find that this 10 percent rating is warranted any earlier than October 17, 2017. The record does not show any complaints of difficulty with the scar until the Veteran reported it at his hearing. His medical records do not reveal any complaints. The June 2012 and May 2013 VA examination reports both show the scar was not painful. A rating higher than 10 percent is not warranted. The July 2018 VA examiner indicated that the scar did not have any of the characteristics of disfigurement; rather, it was in the natural crease under his jawline and difficult to visualize. At his hearing, the Veteran reported that he thought it was possible his scar was adhering to the underlying tissue. He reported that he was going to physical therapy for his shoulder, and that those records would show if there was involvement with his shoulder from his neck scar. The treatment records from his physical therapy do not show any involvement of the neck scar, and instead show he has shoulder pain from rotator cuff syndrome. Further, the July 2018 VA examination report did not show adherence to the underlying tissue, or any other symptoms related to the scar. The Board notes that, in May 2013, the Veteran raised concern with the May 2013 VA examination report, as he thought the examiner did not know what he was supposed to be doing, but he did not provide any specific examples of missing or incorrect information. He was given an updated VA examination in July 2017, and has not raised any concerns with the conduct of the examiner or the resulting report. Given their internal consistency, and lack of specific issue with the May 2013 VA examination report, the Board finds all the VA examinations adequate for adjudication. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Gibson