Citation Nr: 18153998 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 14-35 640 DATE: November 29, 2018 ORDER Service connection for posttraumatic stress disorder (PTSD) is granted. Service connection for prostate cancer is denied. Prior to December 26, 2017, a rating in excess of 10 percent for intestinal residuals of colon cancer, post-colectomy, is denied. On and after December 26, 2017, a rating in excess of 20 percent for intestinal residuals of colon-cancer, post-colectomy, is denied. A compensable initial rating for basal cell carcinoma excision scar, right cheek, is denied. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, his PTSD is related to in-service trauma. 2. Prostate cancer is not shown to be causally or etiologically related to any disease, injury, or incident in service, to include exposure to ionizing radiation, nor did it manifest within one year of discharge from service. 3. Prior to December 26, 2017, the Veteran’s intestinal residuals of colon cancer, post-colectomy, were manifested by sporadic bouts of diarrhea without additional symptoms. 4. On and after December 26, 2017, the Veteran’s intestinal residuals of colon cancer, post-colectomy, were manifested by moderate symptoms of daily diarrhea without additional symptoms. 5. Throughout the pendency of the appeal, the Veteran’s basal cell carcinoma excision scar, right cheek, was not manifested by instability or pain or one characteristic of disfigurement. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1112 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2017). 2. The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.311, 4.115a (2017). 3. Prior to December 26, 2017, the criteria for a rating in excess of 10 percent for intestinal residuals of colon cancer, post-colectomy, have not been met. 38 U.S.C. §§ 1110, 1112 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.311, 4.2, 4.2, 4.3, 4.6, 4.7, 4.118, Diagnostic Code 7329 (2017). 4. On and after December 26, 2017, the criteria for a rating in excess of 20 percent for intestinal residuals of colon cancer, post-colectomy, have not been met. 38 U.S.C. §§ 1110, 1112 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.311, 4.2, 4.2, 4.3, 4.6, 4.7, 4.118, Diagnostic Code 7329 (2017). 5. The criteria for a compensable rating for basal cell carcinoma excision scar, right cheek, have not been met. 38 U.S.C. §§ 1110, 1112 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.311, 4.2, 4.2, 4.3, 4.6, 4.7, 4.118, Diagnostic Codes 7800-7804 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February 1946 to December 1947 and from September 1950 to August 1951. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Board notes that the Veteran filed claims for cancer related to nuclear radiation in May 1997. For 14 years, his claims were denied by the VA. It was not until October 2011 that the Defense Threat Reduction Agency and United States Strategic Command Center for Combating Weapons of Mass Destruction acknowledged the Veteran’s radiation exposure in World War II. A significant number of the Veteran’s service records and VA treatment records have been lost or destroyed by fire. In November 2017, the Board remanded the case to the Under Secretary of Benefits for additional review of the Veteran’s prostate cancer claim pursuant to 38 C.F.R. § 3.311(c) and (e). The Board also remanded the remaining issues on appeal for additional development. In a September rating decision, the RO granted an increased rating of 20 percent for intestinal residuals of colon cancer, post-colectomy, effective December 26, 2017. As this does not represent a full grant of the benefits sought on appeal, the issue remains in appellate status and has been re-characterized accordingly. AB v. Brown, 6 Vet. App. 35, 38 (1993). The RO has returned the issues for appellate review. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). Service Connection The Veteran contends that he currently has PTSD resulting from his experiences in the Korean War. The Veteran also contends that his exposure to radiation during Operation CROSSROADS resulted in prostate cancer. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for an acquired psychiatric disorder Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evaluation, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. The Board will consider whether the provisions of 38 C.F.R. § 3.304(f) related to fear of hostile military or terrorist activity are applicable in this case. In this regard, service connection for PTSD on the basis of fear of hostile military or terrorist activity does not require credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f)(3). The existence of an in-service stressor may be established by the Veteran’s lay testimony alone if that stressor is related to the Veteran’s fear of hostile military or terrorist activity, a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, and the Veteran’s symptoms are related to the claimed stressor. Id. In order for 38 C.F.R. § 3.304(f)(3) to apply to a Veteran’s lay testimony, the claimed stressor must be consistent with the places, types, and circumstances of the Veteran’s service. Id. The Veteran’s military personnel records prove the Veteran’s service in the Korean War. Specifically, his DD-214 indicates service in the 8226th signal group, which was stationed in Pusan, and he also received an overseas service bar for his service in Korea. See Army Regulation 670-1 19-28(a)(2) (restricting decoration of the Korea overseas service bar to those Veterans who have served overseas in Korea between June 27, 1950 and July 27, 1954.) Service treatment records are negative for complaints of, treatment for, or a diagnosis of an acquired psychiatric disorder, to include PTSD. However, it is worth stating that many of the Veteran’s service records and VA treatment records have been either lost or damaged due to fire. Throughout the record, the Veteran has consistently described a set of traumatic events related to his service in Korea. In October 2009, a VA mental health examiner, Dr. C.V., diagnosed the Veteran with PTSD. In forming his assessment, Dr. C.V. noted that the Veteran experienced “several traumatic events”. As noted by Dr. C.V., the Veteran was surrounded for nine months by hostile Chinese military forces. The Veteran was also a bystander witness to a beheading on a train from Seoul to Pusan. Additionally, the VA mental health examiner noted the Veteran’s reference to extreme cold. The October 2009 VA mental health examiner confirmed that the traumatic events described by the Veteran were adequate stressors to support a diagnosis of PTSD. A VA treatment note from August 2010 confirms the Veteran’s chronic PTSD co-morbid with adjustment disorder and depressed mood. The Veteran’s November 2011 Statement in Support of Claim for PTSD also describes the extreme cold and a fear of being killed or captured. A review of scholarship related to the Korean War proves that the Veteran’s claimed stressors are consistent with the places types, and circumstances of service in the Korean War. See, e.g., Edwin Hoyt, On the Yalu (1984) (describing Chinese intervention in the Korean War during 1950 and 1951); see also James L. Stokesbury, A Short History of the Korean War (1990) (describing Chinese military intervention and defense of the Pusan Perimeter); see also Karl Warner, Combating Cold Korea, US Army Heritage and Education Center (Nov. 10, 2010), https://www.army.mil/article/47963/combating_cold_korea. Therefore, the Board finds the Veteran’s lay testimony is enough to establish the occurrence of the claimed in-service stressors. Turning to the question of whether there is an etiological relationship between the Veteran’s acquired psychiatric disorder and service, the Board notes that the record contains several etiology opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (stating that as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board will consider each of these opinions below. On October 22, 2009, the Veteran sought treatment from a VA psychiatrist and mental health physician, Dr. C.V. Dr. C.V.’s overview of the Veteran’s clinical history recounted traumatic events from the Korean War. As mentioned above, the Veteran was included in a military campaign near Pusan, during which he experienced fear of death by hostile forces. He was also the bystander to a beheading. Dr. C.V. inventoried the Veteran’s PTSD symptoms, including startled reactions, insomnia-related problems, nightmares, irritability, reduced memory, reduced self-confidence, and a bad temper. The existence of many of these symptoms was corroborated by the Veteran’s wife. Based on his examination and assessment, Dr. C.V. diagnosed the Veteran with chronic PTSD related to the war in Korea. This opinion was based upon a review of the Veteran’s current and past medical history, as well as a review of his stressors from the Korean War and contained a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is not entitled to any weight). During an August 2010 follow-up, Dr. C.V. confirmed his prior diagnosis of PTSD. In his VA examination notes, Dr. C.V. stated that the Veteran “was told he has been previously diagnosed with PTSD”, and that “no extra documentation... was necessary.” August 2010 VA Mental Health Attending Note. Dr. C.V. confirmed his previous impression of the Veteran’s chronic PTSD related to combat. Again, based upon the examiner’s review of the Veteran’s current and past medical history and his familiarity with the Veteran, this opinion is entitled to significant probative weight. In January 2011, the Veteran underwent examination for PTSD, which was conducted by Dr. G.D. at the Dallas VA Medical Center. Dr. G.D. revisited many of the stressors that the Veteran had outlined in 2009, including fears related to his service near Pusan. Dr. G.D. diagnosed the Veteran with major depression, recurrent and moderate. He concluded that the Veteran experienced difficulties and stress related to his service but that the stressors described “do not meet the rather stringent DSM-IV criteria for a traumatic event as required for a PTSD diagnosis.” Regarding the Veteran’s depression, Dr. G.D. opined that “it is considered less likely as not secondary to service because the Veteran seemed to indicate throughout the examination that his depression relates primarily to financial worries and physical health concerns related to getting older.” Even though the Veteran had traumatic memories and fits of rage directly after the war, Dr. G.D. reasoned that these outbursts were not significant because they occurred less frequently as the Veteran grew older. Dr. G.D. concluded that there is insufficient evidence that the Veteran experienced clinically significant depression from military service. As this examiner failed to address the Veteran’s previous diagnoses of PTSD in 2009 and 2010, the Board affords limited weight to his conclusions. Conversely, a July 2011 VA examination report shows the Veteran’s ongoing treatment for “PTSD/depression”. It specifically assessed the Veteran as having PTSD that was well-controlled with medication. In January 2013, a VA examiner opined that the Veteran did not have a diagnosis of PTSD that conformed to the DSM-IV criteria. The examiner diagnosed the Veteran with depressive disorder and insomnia. The Veteran was extensively queried regarding his trauma. The VA examiner detailed the Veteran’s several stressors, including the Veteran’s experience watching an “infiltrator” who was shot in the neck; the Veteran also recounted his experience of being terrified about Chinese invasion from the north that would result in “another Dunkirk” and mass killing. Here, the Board notes the January 2013 VA examiner did not review the Veteran’s claims file. Additionally, she did not discuss the 2009, 2010, and 2011 VA treatment records indicating a positive diagnosis of PTSD. Moreover, the January 2013 VA examiner did not address the etiology of the Veteran’s symptoms. As a result, this opinion is accorded little probative weight. A December 2017 VA examination reflects a diagnosis of major depressive disorder. The examiner opined that the Veteran’s diagnosed acquired psychiatric disorder did not have its onset during military service and that the acquired psychiatric disorder was not caused by or a result of military service. The examiner noted that there was no evidence of psychiatric complaints, psychiatric findings, or psychiatric treatment during military service. She also found no relationship between the Veteran’s symptoms and military duties. However, this opinion appears to have been based upon an inaccurate factual premise, namely that “World War II was from 1939-1945, which precedes the Veteran’s active military service.” The record reflects that the Veteran served in the Navy from February 1946 to December 1947 and in the Army from September 1950 to August 1951. Under current law, the VA recognizes December 7, 1941, through December 31, 1946, as the wartime period for WWII. Given the examiner’s lack of familiarity with wartime service periods, this opinion carries little, if any, probative weight. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). In this case, the evidence is at least in equipoise as to whether the Veteran has a diagnosis of PTSD related to service. Therefore, resolving all doubt in the Veteran’s favor, the Board finds service connection for PTSD is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (“[T]he ‘benefit of the doubt’ standard is similar to the rule deeply embedded in sandlot baseball folklore that ‘the tie goes to the runner’…. [I]f... the play is close, i.e., ‘there is an approximate balance of positive and negative evidence,’ the veteran prevails by operation of [statute].”) 2. Entitlement to service connection for prostate cancer, to include as due to exposure to ionizing radiation The Veteran contends that his prostate cancer (currently in remission) is related to his exposure to ionizing radiation in service. As there is no contention that symptoms of prostate cancer were first experienced by the Veteran in service, or that prostate cancer is otherwise directly related to service, the Board will focus on the Veteran’s primary argument that prostate cancer is due to his in-service exposure to ionizing radiation. With respect to such contention, service connection may be granted when it is determined that a veteran was exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons, the occupation of Hiroshima or Nagasaki, Japan, from September 1945 until July 1946, the veteran subsequently developed a radiogenic disease, and such disease first became manifest within five years or more after exposure. 38 C.F.R. 3.311. As prostate cancer has been identified as a “radiogenic disease” under 38 C.F.R. § 3.311, such consideration is warranted in this case. The Defense Special Weapons Agency has confirmed that the Veteran was present at Operation CROSSROADS, a U.S. atmospheric nuclear test series conducted at Bikini Atoll during July and August 1946. At that time, he was assigned to USS Shangri-La as an electrician’s mate third class (EM3). A December 3, 1997, memorandum from the Defense Special Weapons Agency stated that “a careful search of dosimetry data reveals no record of radiation exposure for [the Veteran]” and that “a scientific dose reconstruction indicates that [the Veteran] would have received a probable dose of zero rem gamma (upper bound of zero rem gamma).” The memorandum goes on to conclude that “A reconstruction report titled Low Level Internal Dose Screen – Oceanic Tests (DNA-TR-88-260)…indicates that [the Veteran] had no potential for internal exposure based on his unit’s activities.” In 2011, however, the Defense Threat Reduction Agency (DTRA) and United States Strategic Command Center for Combatting Weapons of Mass Destruction determined that the Veteran’s participation satisfied the requirements for the presumption of service connection for the cancers listed 38 C.F.R. § 3.309(d). The Board notes the conflicting evidence described above. In particular, the 2011 determination indicates the Veteran’s presence at a nuclear test series did, in fact, satisfy the requirements of 38 C.F.R. § 3.309. In other words, the Veteran did have a potential for internal exposure based on his unit’s activities. Furthermore, the Board notes VA explicitly conceded such exposure when it granted service connection for other types of cancer related to exposure to radiation. However, as prostate cancer is not listed as one of the cancers in 38 C.F.R. § 3.309(d), service connection may not be granted presumptively under such regulation. With respect to direct service connection, in September 2018, VA’s Deputy Chief Consultant, Post Deployment Health Service, found that it was unlikely that the Veteran’s prostate cancer was caused by his exposure to ionizing radiation in service. In reaching this conclusion, the Deputy Chief Consultant assumed the following dose estimates (provided by DTRA): external gamma dose of 18 rem; external neutron dose of 0.5 rem; internal committed dose to the prostate (alpha) of 4.5 rem; internal committed dose to the prostate (beta plus gamma) of 2 rem; and, total skin dose to any skin area (beta plus gamma) of 550 rem. These estimates were generated from a matrix developed by the National Institute of Occupational Safety and Health (NIOSH) that analyzes the probability that certain cancers were caused by exposure to ionizing radiation. The results indicated that it was unlikely that the Veteran’s prostate cancer was attributable to his radiation exposure while in the military. Within the same month, the Director for Compensation and Pension noted that after review of the Chief Public Health and Environmental Hazards Officer’s opinion, the available DD Forms 1141, and the evidence in its entirety, there was no reasonable possibility that prostate cancer was the result of the Veteran’s occupational exposure to ionizing radiation during service. The Board acknowledges the Veteran’s assertion that his prostate cancer is related to in-service exposure to radiation. In this regard, although lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but they are not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). In this case, the Board finds that the question regarding the etiology of the Veteran’s prostate cancer to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this case, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship and requires the administration and interpretation of nuclear exposure data. As the Veteran is not a medical or scientific specialist, his assertions are not probative evidence of a nexus. As the competent, probative medical evidence does not establish a nexus between the Veteran’s prostate cancer and service, to include exposure to radiation, service connection must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for prostate cancer. As such, that doctrine is not applicable in this claim, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Ratings Disability ratings are determined by adverse impacts on ordinary conditions of daily life, including employment. Symptoms are compared to the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). A Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Moreover, the Court of Appeals for Veterans Claims (the Court) has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 3. A rating in excess of 10 percent prior to December 26, 2017, and in excess of 20 percent thereafter for intestinal residuals of colon cancer, post-colectomy The Veteran’s intestinal residuals of colon cancer, post-colectomy, are rated under 38 C.F.R. § 4.114, Diagnostic Code 7329, which governs resection of the large intestine. Under Diagnostic Code 7329, a 10 percent rating is warranted for slight symptoms, a 20 percent rating is warranted for moderate symptoms, and a 40 percent rating is assigned when there are severe symptoms, objectively supported by examination findings. A March 2011 VA treatment record indicates the Veteran had diarrhea from having no colon but no change in the quality or quantity of his stool. The Veteran denied urinary symptoms at that time. A January 2013 VA examination report shows the Veteran required continuous medication for control of his condition. Specifically, the Veteran had sporadic bouts with diarrhea. The VA examiner noted that “it could go on for one week and other times for one day. The stools are watery.” The Veteran did not have abdominal pain, alternating diarrhea and constipation, abdominal distention, anemia, nausea, vomiting, pulling pain, or weight loss. The VA examiner did not determine whether the Veteran’s symptoms were of a slight, moderate, or severe nature. Based on this evidence, the Board finds a rating in excess of 10 percent prior to December 26, 2017, for intestinal residuals of colon cancer, post-colectomy, is not warranted. Here, the evidence reflects only sporadic bouts of diarrhea but no additional symptoms related to the Veteran’s service-connected intestinal residuals of colon cancer, post colectomy. On VA examination in December 2017, the Veteran had moderate symptoms attributable to the resection of his large intestine that involved daily diarrhea. He did not have abdominal pain nor did he require continuous medication. He also did not present interference with absorption or nutrition or a persistent internal fistula. Based on this evidence, the Board finds a rating of in excess of 20 percent on and after December 26, 2017, is not warranted. VA examination during this period demonstrated only moderate symptoms but no additional symptoms 4. Entitlement to a compensable initial rating for basal cell carcinoma excision scar, right cheek (scar) The Veteran’s service-connected scar is rated under the provisions of Diagnostic Code 7800. Diagnostic Code 7800 addresses scars or disfigurement of the head, face, or neck. Under this Diagnostic Code, a 10 percent disability rating is assigned when there is one characteristic of disfigurement. A 30 percent evaluation is assigned when there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. The next higher, 50 percent, rating is assigned when there is 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. An 80 percent rating is assigned when there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characteristics of disfigurement. 38 C.F.R. § 4.118 (2008). Note (1) to DC 7800 lists the eight characteristics of disfigurement for purposes of evaluation under § 4.118, as follows: (1) scar five or more inches (13 or more centimeters (cm)) in length; (2) scar at least one-quarter inch (0.6 cm) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Note (3) to DC 7800 provides that unretouched color photographs are to be taken into consideration when evaluating under these criteria. Moreover, Note (4) states that disabling effects of scars other than disfigurement, such as pain, instability, and residuals of associated muscle or nerve injury, are to be evaluated separately under the appropriate diagnostic code(s). Id. Note (5) states that the characteristics of disfigurement may be caused by one scar or by multiple scars, and that the characteristics required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. Id. Diagnostic Code 7804 allows for a compensable rating for unstable or painful scars. One or two scars that are unstable or painful receive a 10 percent rating. Three or four scars that are unstable or painful receive a 20 percent rating. Five or more scars that are unstable or painful receive a 30 percent rating. As noted above, the Veteran has been in receipt of a noncompensable disability rating under the provisions of Diagnostic Code 7800 for his scar. Based on a review of the evidence, the Board finds that a compensable disability rating for the Veteran’s service-connected scar is not warranted at any time during the appeal period. Here, the evidence does not demonstrate the presence of any characteristics of disfigurement as required for the assignment of a compensable disability rating under Diagnostic Code 7800. A December 2009 VA dermatologist’s report notes the presence of a “well-healed” surgical scar on the Veteran’s right cheek. There were no noted characteristics of disfigurement. The scar was revisited during a January 2013 VA examination. According to the VA examiner, the Veteran’s facial scar was not painful nor was it unstable. It measured approximately 0.5 square centimeters (2cm x 0.25cm). There was no elevation, depression, adherence to underlying tissue, or missing underlying soft tissue. There was some abnormal skin pigmentation; however, the hypo-pigmented area did not exceed more than six square inches. The facial scar did not result in any limitation of function and did not impact the Veteran’s ability to work. On a December 2017 VA examination report, it was noted that the Veteran’s facial scar was neither painful nor unstable. His facial scar measured approximately 0.6 square centimeters in area (1.5 x 0.4 cm); there was no noted hypopigmentation. The Veteran’s facial scar did not result in any gross distortion or asymmetry or any visible or palpable tissue loss. There was no limitation of function resulting from the Veteran’s facial scar. Here, the Board has considered whether a compensable rating is warranted under an analogous rating. However, as the evidence does not reflect instability or pain, a compensable rating is not permissible under Diagnostic Code 7800. For these reasons, the Board finds that the weight of the evidence is against a finding of a compensable disability rating for service-connected scar during the appeal period. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and, hence, the benefit-of-the-doubt doctrine does not apply. M. M. CELLI Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD F. Lanton, Associate Counsel