Citation Nr: 18151314 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 07-26 859 DATE: November 20, 2018 ORDER Entitlement to separate 10 percent ratings for each of three residual scars, status post appendectomy, is granted. FINDING OF FACT Throughout the appeals period, the Veteran has had three painful abdominal scars resulting from in-service abdominal surgery; the total combined area is 36 square centimeters. CONCLUSION OF LAW The criteria for entitlement to separate 10 percent ratings for each of the three residual scars, status post appendectomy, have been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2018); 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2017); 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1966 to October 1968. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from a May 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board most recently in November 2016, when the Board, in pertinent part, denied the Veteran’s claim for a rating in excess of 10 percent for scars, status-post appendectomy. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). In April 2018, the Court issued a Memorandum Decision vacating and remanding the issue of a rating in excess of 10 percent for scars, status-post appendectomy to the Board. 1. Entitlement to a rating greater than 10 percent for residual scars, status post appendectomy The Veteran seeks an evaluation in excess of 10 percent disabling for his service-connected residual scars, status post appendectomy. The Veteran, through his representative, argues that his scars are painful. For evidentiary support for this position, the Veteran primarily relies on the May 2003 VA examination documenting “a slight tenderness and a slight numbness” of two of the Veteran’s scars and “a mild tenderness and a mild numbness” of the third scar. Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated since the most recent rating decision. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a “staged rating” (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s scars were service-connected and rated under a previous version of 38 C.F.R. § 4.118. The criteria for rating skin disabilities have changed twice during the period covered by this appeal, effective October 23, 2008, and effective August 13, 2018. See 73 Fed. Reg. 54,708 (September 23, 2008); 83 Fed. Reg. 32,592 (July 13, 2018). When a law or regulation changes during the pendency of a Veteran’s appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. 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 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. The Veteran’s service-connected residual scars, status-post appendectomy with adhesions are currently evaluated as 10 percent disabling under 38 C.F.R. § 4.118, DC 7804 (2008). Under the version of the Schedule for Rating Disabilities in effect prior to September 2008, scars were rated under DCs 7800 to 7805. Diagnostic Code 7800 required involvement of the head, face, or neck. Diagnostic Code 7801 governed scars, other than the head, face, or neck, that were deep or cause limited motion, a 10 percent evaluation was assignable when the area or areas exceeded six square inches (39 square centimeters). A 20 percent evaluation was assignable when the area or areas exceed 12 square inches (77 square centimeters). Diagnostic Code 7802 governed scars other than the head, face, or neck, that were superficial and did not cause limited motion. A 10 percent evaluation was assignable for area or areas of 144 square inches (929 square centimeters) or greater. Diagnostic Code 7803 provided for a 10 percent evaluation for scars that are superficial and unstable. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, DC 7803, Note (1). A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7803, Note (2). Under Diagnostic Code 7804, a 10 percent evaluation was assignable for scars that were superficial and painful on examination. Under Diagnostic Code 7805, other types of scars were rated based on limitation of function of affected part. Effective October 23, 2008, scars were evaluated under 38 C.F.R. § 4.118, DC 7800-7805. Diagnostic Code 7800 requires involvement of the head, face, or neck. Diagnostic Code 7801 applies to scars, other than head, face, or neck, that are deep and nonlinear and provides for a 10 percent rating where the scars have an area of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). Diagnostic Code 7802 provides for no more than a 10 percent rating and requires involvement of an area or areas of 144 square inches (929 sq. cm.). The Rating Schedule no longer included a Diagnostic Code 7803. Diagnostic Code 7804 applies to scars that are unstable or painful. A 10 percent rating is warranted for one or two scars that are unstable or painful. A 20 percent rating is warranted for three or four such scars. A 30 percent rating is warranted for five or more scars that are unstable or 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. Diagnostic Code 7805 applies to limitation of function of the affected part and specifically provides: “Evaluate any disabling effect(s) not considered in rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code.” Id. Under the post-August 2018 rating criteria, Diagnostic Code 7800 remains the same and as noted above, and is not applicable in the present case as the Veteran’s scars are not on the head, face, or neck. 38 C.F.R. § 4.118, Diagnostic Code 7800. Diagnostic Code 7801 was amended to state that burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage, in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) will be assigned a 10 percent rating. Note (1) was amended to state that 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) was amended to state that a separate evaluation may be assigned for each affected zone of the body. Combine the separate evaluations under 38 C.F.R. § 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 7801. Diagnostic Code 7802 was amended to state that burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage in an area or areas of 144 square inches (929 sq. cm.) or greater will be assigned a 10 percent rating. Note (1) was amended to state that 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) was amended to state that a separate evaluation may be assigned for each affected zone of the body. Combine the separate evaluations under 38 C.F.R. § 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 7802. Diagnostic Codes 7804 and 7805 remain the same. Analysis The Veteran’s scars do not affect his head, face, or neck, so all versions of DC 7800 are inapplicable. The medical evidence is against finding that a compensable rating is warranted under any version of either DC 7801 or 7802. The scars do not meet the criteria under either of those diagnostic codes. See, e.g., November 2013 VA Examination (finding that none of the scars were unstable or due to burns, that they affect only the anterior trunk, and have an approximate total area of 36 square centimeters). Former DC 7803 provides for a 10 percent rating for scars that are superficial and unstable. While the scars at issue here are superficial, they are not unstable. See November 2013 VA examination. The Veteran has not contended otherwise. A rating under the 2008 version of DC 7803 is not warranted. With respect to Diagnostic Code 7804, the pre-September 2008 version is ambiguous regarding whether the indicated 10 percent rating applies to a group of service-connected scars that are superficial and painful, or to each scar that is both superficial and painful. Compare 38 C.F.R. § 4.118, DC 7804 (2008) (“Scars, superficial, unstable...” with 38 C.F.R. § 4.118, DC 7804 (2018) (specifying that a 10 percent rating is warranted for “one or two scars” and a 20 percent rating is warranted for “three or four such scars”). The Board will resolve the ambiguity in the Veteran’s favor and assume that the prior version allows a 10 percent rating for each superficial, painful scar. A May 2003 VA examination identified three scars on the Veteran’s abdomen. The examiner noted mild tenderness of one of the scars and slight tenderness of the other two scars. VA examinations in March 2005 and June 2011 only identified two abdomen scars. Thus, the Board finds those examinations of limited probative value as they do not contain sufficient information to evaluate the entire disability picture associated with the three service-connected scars. A July 2012 VA examiner stated that the Veteran has three scars on his abdomen as well as “pain consistent with the severity of abdominal scarring.” There is ambiguity in the evidence regarding the number of scars and associated symptoms. The RO requested a medical opinion to resolve those ambiguities. In April 2013, a VA examiner provided an addendum opinion discussing and reconciling the apparent inconsistencies in the examinations from May 2003, March 2005, June 2011, and July 2012. The examiner stated that the July 2012 VA examiner’s opinion was correct that “the veteran has 3 scars on his abdomen.” The examiner noted that they created "minimal" limitations, and "[the Veteran] is symptomatic (painful) with stretching the abdominal wall in the supine position. A November 2013 VA examination also noted three scars. The Veteran contends that he has pain associated with all three scars. The Veteran is competent to report painful scars. In short, the evidence indicates that the Veteran had, throughout the appeal period, three scars that have been medically described as tender, and which he has reported are painful. The Board thus finds that the Veteran is entitled to separate 10 percent ratings for each of the three abdominal scars for the entire appeals period under the prior version of DC 7804. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. While the assignment of separate evaluations for separate and distinct symptomatology is not precluded, it is only permitted where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); see also VA Gen. Coun. Prec. 9-2004 (Sep. 17, 2004) (“[T]he key consideration in determining whether rating under more than one diagnostic code is in order is whether the ratings under different diagnostic codes would be based on the same manifestation of disability or whether none of the symptomatology upon which the separate ratings would be based is duplicative or overlapping.”). With respect to DC 7805 (allowing ratings under other diagnostic codes for functional limitations due to scars), no separate rating for limitation of motion is warranted on the medical evidence of record. While there is some indication of “minimal” limitations of motion of the thoracolumbar spine (e.g. stretching in a supine position), the limitations do not meet the criteria for any rating under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a , DCs 5235 to 5243 (providing for a 10 percent rating where forward flexion of the thoracolumbar spine is limited to 60 degrees or less or combined range of motion of the thoracolumbar spine is 235 degrees or less); May 2003 VA examination (indicating back extension is limited, during flare-ups, to 10 degrees due to abdominal symptoms, but attributing remaining back symptoms, including limited flexion, to other conditions); April 2013 VA examiner’s addendum opinion (noting “minimal” limitation associated with scarring). The Board also notes that the 60 percent rating assigned for the abdominal adhesions and related medical conditions (IBS, GERD, etc.) is based, in part, on abdominal pain and tenderness related to the adhesions of peritoneum. See August 2011 Rating Decision; January 2014 Rating Decision. At least a portion of the abdominal pain that causes functional limitations is related to the abdominal adhesions. In making this finding, the Board relies, in significant part, on the July 2012 opinion letter by a VA nurse practitioner (the Veteran’s primary care provider) documenting the Veteran’s three abdominal scars, the pain when stretching the abdominal wall, and diffuse tenderness of the abdomen. She attributed the abdominal pain to internal adhesions from the in-service surgery. The Board finds that awarding a higher or additional rating for the abdominal pain, including the pain on stretching or the diffuse tenderness, or for the associated functional limitations, would constitute impermissible pyramiding. The Veteran has, following implementation of the Board’s current decision, a 10 percent rating for each of the three painful external scars, and he has a 60 percent rating partly based on other related abdominal pain. The Board finds that the disabling effects that resulted in these ratings are sufficiently distinct to avoid the prohibition on pyramiding, but that a third rating (or a higher rating for the scars) based on the minimal functional impact of the abdominal pain on stretching is not appropriate. 38 C.F.R. § 4.14; see also VA Gen. Coun. Prec. 9-2004 (Sep. 17, 2004). (Continued on the next page)   The weight of the evidence supports finding that the Veteran has three painful scars and that his symptoms most closely approximate the separate 10 percent criteria for each scar for the entire period on appeal under the old version of the Rating Schedule pertaining to scars. 38 C.F.R. § 4.118, DC 7804. There are no additional expressly raised or reasonably raised issues presented on the record. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel