Citation Nr: 18156131 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 08-03 304 DATE: December 7, 2018 ORDER A rating higher than 0 percent for residuals of a stab wound of the left forearm is denied. A rating higher than 0 percent for residuals of a stab wound of the right chest is denied. An effective date earlier than January 4, 2010 for the award of eligibility for Dependents’ Educational Assistance (DEA) under 38 U.S.C. chapter 35 is denied. REMANDED A rating higher than 0 percent for residuals of laryngeal cancer from April 1, 2014 is remanded. Entitlement to special monthly compensation under 38 U.S.C. 1114(s) (housebound criteria) from April 1, 2014 is remanded. FINDINGS OF FACT 1. The Veteran’s residuals of a stab wound of the left forearm are manifested by a superficial, non-painful scar measuring less than 144 square inches (929 square centimeters). 2. The Veteran’s residuals of a stab wound of the right chest are manifested by a superficial, non-painful linear scar measuring less than 144 square inches (929 square centimeters). 3. Prior to January 4, 2010, the Veteran did not have a service-connected disability rated as permanent and total. CONCLUSIONS OF LAW 1. The criteria for rating higher than 0 percent for residuals of a stab wound of the right left forearm have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.102, 3.321, 4.3, 4.118, Diagnostic Code 7804 (2017). 2. The criteria for a rating higher than 0 percent for residuals of a stab wound of the right chest have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.102, 3.321, 4.3, 4.118, Diagnostic Code 7804 (2017). 3. The criteria for an effective date earlier than January 4, 2010 for the award of eligibility for Dependents’ Educational Assistance (DEA) under 38 U.S.C. chapter 35 have not been met. 38 U.S.C. §§ 3500, 3501, 5110 (2012); 38 C.F.R. §§ 3.807, 3.401 (2017).   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1970 to September 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in December 2011 and May 2014 of the Department of Veterans Affairs (VA) Regional Office. The Board remanded this case in March 2018. Increased Rating VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2017). Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence supports a given evaluation under the applicable rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When the evidence supports the claim, or is in relative equipoise, the claim will be granted. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If the preponderance of the evidence weighs against the claim, it must be denied. Id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Scars The Board finds that the criteria for compensable ratings for the Veteran’s scars of the left forearm and right chest have not been satisfied. The September 2011 VA examination report reflects that the Veteran’s left forearm scar measured 10 centimeters by 1.5 centimeters. The May 2018 VA examination report reflects that the left forearm scar measured 7 centimeters by 8 centimeters, and that his right chest scar was linear, and measured 4 centimeters by 0.2 centimeters. Both scars were found to be well-healed and superficial. They were not unstable or painful, and did not produce any disabling effects. The Veteran’s residuals of stab wounds of the left forearm and right chest have been assigned 0 percent ratings under Diagnostic Code (DC) 7805, which instructs that disabling effects of scars not considered under DC’s 7800-04 are to be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118. The VA examination reports show that the Veteran’s scars of the left forearm and right chest do not produce any functional impairment or disabling effects. The evidence does not otherwise show disabling effects from these scars. Accordingly, no diagnostic code outside DC’s 7800-04 is applicable. The Board has considered other diagnostic codes applicable to scarring. Under 38 C.F.R. § 4.118, Diagnostic Code 7802, a scar not of the head, face, or neck, that is superficial and nonlinear is assigned a 10 percent rating if it covers an area of 144 square inches (929 square centimeters) or greater. The VA examination reports show that the Veteran’s left forearm scar covers an area less than 144 square inches (929 square centimeters), and that his right chest car is linear and covers an area smaller than 929 square centimeters. Accordingly, the criteria for a 10 percent rating under DC 7802 are not satisfied. A compensable rating is not warranted under any other diagnostic code pertaining to scarring. Because the VA examination reports show that the scars are superficial, the criteria for a rating of 10 percent or higher under DC 7801 are not satisfied. See 38 C.F.R. § 4.118. Because the scars are not painful or unstable, the criteria for a 10 percent rating or higher under DC 7804 are not satisfied. See id. The schedule for rating disabilities applicable to the skin was recently amended effective August 13, 2018. 83 Fed. Reg. 32593 (July 13, 2018). Claims pending prior to the effective date of the new rating criteria will be considered under both the old and new criteria, and whatever criteria is more favorable to the Veteran will be applied. Id. Under the amended rating criteria, DC 7802 still requires that a scar involve an area of 144 square inches (929 square centimeters) or greater to be assigned a 10 percent rating. Id. at 32598. As already discussed, the Veteran’s scars of the right chest and left forearm do not satisfy this requirement. Because his scars of the chest and forearm are not associated with underlying soft tissue damage, the criteria for a compensable rating under DC 7801 are not satisfied. Id. No changes were made to DC’s 7804 and 7805, and no other diagnostic code was added that would be applicable to the Veteran’s scars. Accordingly, a higher evaluation is not available under the amended rating criteria. The evidence does not show any current manifestations of the Veteran’s residuals of stab wounds of the left forearm and right chest apart from the scars discussed above. Accordingly, no other diagnostic code is applicable. Because the preponderance of the evidence weighs against the claims, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. 5107; 38 C.F.R. § 3.102. Effective Date of DEA Benefits The criteria for an effective date earlier than January 4, 2010 for the award of eligibility for DEA benefits under 38 U.S.C. chapter 35 are not satisfied. In order for a dependent of the Veteran to be eligible for chapter 35 DEA benefits, the Veteran must have a service-connected disability rated as permanent and total. See 38 U.S.C. §§ 3500, 3501; 38 C.F.R. § 3.807. Prior to January 4, 2010, the Veteran did not have a service-connected disability assigned a 100 percent disability rating. Accordingly, an effective date earlier than January 4, 2010 for the award of chapter 35 DEA benefits must be denied as a matter of law. See 38 U.S.C. § 5110(f); 38 C.F.R. § 3.401 (2017) (providing, in pertinent part, that the effective date of an award of DEA benefits cannot be earlier than the effective date of the qualifying disability rating); see also Sabonis v. West, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND Residuals of Laryngeal Cancer from April 1, 2014 A new VA examination must be performed to assess whether the Veteran’s residuals of laryngeal cancer now prevent him from eating solid foods. The May 2018 VA examination report and recent VA treatment records do not indicate that the Veteran has trouble eating or weight loss related to his laryngeal cancer residuals. However, in a September 2018 statement, the Veteran wrote that he could no longer eat solid foods or swallow medication due to chronic pain in his throat, and had lost a significant amount of weight. Notably, a June 2018 VA treatment record reflects that the Veteran reported weight loss over the past four months, and that he had difficulty swallowing some solid foods. A VA examination is necessary to aid the Board in making an informed decision on this issue. Special Monthly Compensation under 38 U.S.C. 1114(s) from April 1, 2014 The issue of entitlement to special monthly compensation from April 1, 2014 may be affected by the outcome of the evaluation of the Veteran’s laryngeal cancer residuals. Accordingly, it is remanded as intertwined with that issue. The matters are REMANDED for the following action: 1. Add to the file any outstanding VA treatment records for the Veteran dated since July 2018. 2. Arrange for a new VA examination to assess all current residuals of the Veteran’s laryngeal cancer. In addition to any other pertinent findings, the examiner should address whether the Veteran’s throat condition limits his ability to eat solid foods, with consequent weight loss. If so, the examiner must provide a full description of the extent of any impairment of health, including the amount of weight loss, resulting from the Veteran’s difficulty or inability to eat solid foods. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Rutkin, Counsel