Citation Nr: 18157561 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-51 293 DATE: December 13, 2018 ORDER Entitlement to an increased rating in excess of 10 percent for a left forehead scar is denied. Entitlement to an increased rating in excess of 10 percent for a painful left forehead scar is denied. FINDINGS OF FACT 1. During the appellate period, the Veteran’s left forehead scar has been manifested by a depressed surface contour on palpation; gross distortion or asymmetry of one feature or paired set of features is not shown. 2. The Veteran has a single service-connected left forehead scar that is painful. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating in excess of 10 percent for a left forehead scar have not been satisfied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.118, Diagnostic Code 7800 (2017). 2. The criteria for entitlement to an increased rating in excess of 10 percent for a painful left forehead scar have not been satisfied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.118, Diagnostic Code 7804 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service with the U.S. Navy from June 1989 to October 1994. During this time, he was awarded the Southwest Asia Service Medal and the National Defense Service Medal, among other awards. This matter comes to the Board of Veteran’s Appeals (Board) on appeal from June 2015 and August 2016 rating decisions from the Department of Veterans Affairs (VA) regional office (RO) in St. Paul, Minnesota. The Board notes that the Veteran had also originally appealed the RO’s June 2015 denial of his claims of entitlement to service connection for bilateral hearing loss and tinnitus. However, a subsequent rating decision issued by the RO granted the Veteran service connection for bilateral hearing loss and tinnitus, and respectively assigned 0 percent and 10 percent evaluations effective April 7, 2015, the date of receipt of the Veteran’s service connection claim. See August 2016 Rating Decision. The establishment of service connection for bilateral hearing loss and tinnitus represents a full grant of the benefits sought on appeal; therefore, these issues are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Increased Ratings VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. 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 diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The schedule recognizes that disability from distinct injuries or diseases may overlap. See 38 C.F.R. § 4.14. However, the evaluation of the same disability or its manifestation under various diagnoses, which is known as pyramiding, is to be avoided. Id. 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 they are sufficient to warrant changes in the evaluations assignable under the applicable rating criteria. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 126. For increased-rating claims, where a claimant seeks a higher evaluation for a previously service-connected disability, it is the present level of disability that is of primary concern, and VA considers the level of disability for the period beginning one year prior to the claim for a higher rating. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); see also 38 C.F.R. § 3.400(o)(2). The Board can consider whether an increased evaluation would be in order under other relevant diagnostic codes. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis, and demonstrated symptomatology. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Thus, the Board may consider the propriety of assigning a higher, or separate rating for a disability under another diagnostic code. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). While pain may cause functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of “the normal working movements of the body,” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). The evaluation of the same disability or the same manifestations of disability under multiple diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a big extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as “such a result would overcompensate the claimant for the actual impairment of his earning capacity.” Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. See also Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (“two defined diagnoses constitute the same disability for purposes of section 4.14 if they have overlapping symptomatology”). However, when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes with different ratings. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The critical inquiry in making such a determination is whether any of the disabling symptomatology is duplicative or overlapping. The Veteran is entitled to a combined rating only where the symptomatology is distinct and separate. Id. The Board emphasizes it is permissible to switch diagnostic codes to more accurately reflect a claimant’s current symptoms. See Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the situs of the disability, or the diagnostic code associated with it, is corrected to more accurately determine the benefit to which a veteran may be entitled for a service-connected disability). 1. Entitlement to an increased rating in excess of 10 percent for a facial scar The Veteran asserts that his service-connected left forehead scar warrants a rating in excess of the 10 percent evaluation currently assigned under DC 7800, which authorizes a 10 percent rating for one characteristic of disfigurement. 38 C.F.R. § 4.118, DC 7800. A 30 percent rating is warranted when there is two or three characteristics of disfigurement, or where 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, eyelids, ears, auricles, cheeks, and lips). Id. A rating of 50 percent is assigned when there is visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes including eyelids, ears or auricles, cheeks, and lips) or four or five characteristics of disfigurement, and a rating of 80 percent 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 (nose, chin, forehead, eyes, eyelids, ears, auricles, cheeks, and lips) or six or more characteristics of disfigurement. Id. The eight characteristics of disfigurement are: a scar 5 or more inches (13 cm. in length); a scar at least one-quarter inch (0.6 cm.) wide at the widest part; the surface contour of a scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo-pigmented or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); abnormal skin texture in an area exceeding six square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Id., Note (1). During his military service, the Veteran hit his forehead on a cabinet, causing a laceration to the left side of his forehead that required butterfly stitches and subsequently scarred. In June 2015, the RO granted the Veteran’s claim for entitlement to service connection for this scar and assigned a zero percent (noncompensable) rating under DC 7800 effective March 18, 2015, with which the Veteran timely filed a notice of disagreement. In an August 2016 decision, the RO then increased the evaluation of the Veteran’s scar to 10 percent, effective March 18, 2015; the Veteran timely appealed this increase, asserting that due to facial asymmetry caused by the scar, a higher evaluation was warranted. See October 2016 Statement in Support of Claim (VA Form 21-4138). A review of the relevant medical evidence of record does not establish that the Veteran’s left forehead scar caused gross distortion or asymmetry of one feature or one paired set of features. The Veteran had previously undergone a VA scar examination in June 2015. See June 2015 Scars/Disfigurement Disability Benefits Questionnaire (DBQ). At that time, the VA examiner noted that the Veteran was bothered by his left forehead scar “because of how it draws attention to the left side of his face/eye.” Id. The examiner further noted that the Veteran denied that scar was ever infected or reopened. Id. The examiner observed that the scar was not unstable, that there was no frequent loss of skin over the scar, and was not the result of a burn. Id. At the time, the examiner measured the scar as having a 1.5 cm. length and a 0.1 cm. width, and determined that the scar was not painful; had no depression or elevation; that there was no adherence to underlying tissue; there was no missing underlying soft tissue; and that there was no abnormal pigmentation. Id. The examiner further indicated that the scar did not cause gross distortion or asymmetry of the Veteran’s facial features; nor did it impact the Veteran’s ability to work. Id. In conjunction with his claim for an increased rating, the Veteran underwent another VA scar examination in August 2016. See August 2016 VA Scars/Disfigurement DBQ. Id. At this time, the examiner again noted that the scar was not unstable, nor was there frequent loss of skin covering the scar, and there were no facial scars that were both painful and unstable. Id. The examiner measured the scar as having a length of 2.5 cm. and a width of 0.1 cm. and further noted that the scar had a depressed surface contour on palpation. Id. With respect to the Veteran’s assertion that “the scar makes the wrinkle line deeper on [the left side of] his forehead,” the examiner reported that a picture was taken of the Veteran without expression, and another was taken with him frowning, and determined, “[t]here was no gross distortion of the eye caused by this scar” and that “[t]his is also evidenced in the pictures that were taken.” Id. The examiner further noted that “the scar area is more depressed than the wrinkle that is on the right side of the forehead and the wrinkle is more pronounced on the right.” Id. The examiner also determined that there was no gross asymmetry of the Veteran’s facial features, and no visible or palpable tissue loss. Id. The examiner again indicated that the scar did not impact the Veteran’s ability to work. Id. Based on the evidence of record, the Veteran’s left forehead scar does not meet the requirements for an evaluation in excess of 10 percent under the criteria set forth in DC 7800. In this regard, the VA examinations performed in June 2015 and August 2016 reflect that the Veteran’s left forehead scar is no more than 2.5 cm. long by 0.1 cm. wide, is not adherent to underlying tissue, does not cause facial asymmetry or gross distortion, and is otherwise superficial and asymptomatic with no signs of skin breakdown, inflammation, edema, or keloid formation and no associated functional limitations or other abnormalities. Accordingly, a higher rating for the Veteran’s left forehead scar under DC 7800 is unwarranted. See 38 C.F.R. § 4.118. For these reasons, the preponderance of the evidence is that, for the entire relevant appellate period, the Veteran’s service-connected left forehead scar has most closely approximated the criteria for the currently assigned 10 percent rating. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 U.S.C. § 5107(a). 2. Entitlement to an increased rating in excess of 10 percent for a painful facial scar The Veteran also asserts that his service-connected left forehead scar warrants a rating in excess of the 10 percent evaluation for pain currently assigned under DC 7804, which authorizes a 10 percent rating for one or two scars that are painful or unstable. 38 C.F.R. § 4.118, DC 7804. A 20 percent rating is warranted when there are three to four scars that are painful or unstable. Id. A 30 percent rating is assigned when there are five or more scars that are painful or unstable. Id. As noted previously, the Veteran underwent a VA examination for his scar in June 2015, and again in August 2016. At the time of the June 2015 VA examination, the examiner noted that the Veteran reported only having one scar over his left forehead, and did not report having any pain. See June 2015 Scars/Disfigurement DBQ. At the Veteran’s subsequent VA examination, he reported that the left forehead scar was painful at the top of the scar, and characterized that pain as “tightness over his forehead when shaving.” See August 2016 Scars/Disfigurement DBQ. He was then awarded a 10 percent rating for pain associated with the scar. See August 2016 Rating Decision. A review of the evidence of record reveals that the Veteran does not meet the requirements for an evaluation in excess of 10 percent under the criteria set forth in DC 7804. In this regard, the VA examinations performed in June 2015 and August 2016 reflect that the Veteran has one scar on his left forehead, and that he has pain associated with the scar. The evidence does not show that the Veteran has three four scars that are painful or unstable, as set forth by the 20 percent criteria of DC 7804. Nor does the evidence show that the Veteran has five or more unstable or painful scars, as required by the 30 percent criteria of DC 7804. Accordingly, a higher rating for the Veteran’s painful left forehead scar under DC 7804 is unwarranted. See 38 C.F.R. § 4.118. In reaching this decision, the Board has considered whether separate ratings could be assigned under an alternative diagnostic code. However, because the evidence of record reflects that the Veteran’s service-connected scar does not involve: a part of the body other than the head, face, or neck, (Diagnostic Codes 7801 and 7802), or at least 5 percent of the entire body or the use of corticosteroids or other immunosuppressive drugs (Diagnostic Code 7806), the Board finds that application of an alternative diagnostic code such as these is not appropriate. For these reasons, the preponderance of the evidence is that, for the entire relevant appellate period, the Veteran’s service-connected painful left forehead scar most closely approximates the criteria for the currently assigned 10 percent rating. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 U.S.C. § 5107(a). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Raj, Associate Counsel