Citation Nr: 18159994 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 16-61 139 DATE: December 20, 2018 ORDER Entitlement to an initial rating of 10 percent, but no more, for surgical scars of the left fingers, hand, and wrist, status post tendon repair and carpal tunnel release surgeries, is granted. FINDING OF FACT In resolving all reasonable doubt in the Veteran’s favor, the evidence supports that the Veteran’s surgical scars of the left fingers, hand, and wrist, status post tendon repair and carpal tunnel release surgeries, have manifested in two painful scars. CONCLUSION OF LAW The criteria for entitlement to an initial rating of 10 percent for surgical scars of the left fingers, hand, and wrist, status post tendon repair and carpal tunnel release surgeries, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7804 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2001 to February 2005. This appeal to the Board of Veterans’ Appeals (Board) arose from an August 2014 rating decision issued by the Department of Veterans Affairs (VA). See October 2014 Notice of Disagreement (NOD); November 2016 rating decision, November 2016 Statement of the Case (SOC); November 2016 Substantive Appeal (VA Form 9). Entitlement to an initial rating of 10 percent, but no more, for surgical scars of the left fingers, hand, and wrist, status post tendon repair and carpal tunnel release surgeries. The Veteran asserted that the scarring on his left hand, wrist, and fingers were painful if touched and restricted his movement. October 2014 VA Form 21-4138. The Veteran later indicated in his appeal to the Board that his scars were not painful when touched, but that the scars on his left hand cause considerable pain after repetitive use. See November 2016 VA Form 9. The Veteran related that he sought only a 10 percent rating for the disability. Id. The Veteran’s service connected surgical scars of the left fingers, hand, and wrist, status post tendon repair and carpal tunnel release surgeries, is currently assigned a noncompensable, zero percent, rating. See November 2016 rating decision. Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. See 38 C.F.R. § 4.1. 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board has considered the entire record, but only the evidence pertinent to the rating criteria and current disability will be discussed. See Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As an initial matter, the Board determines that the criteria for rating skin disabilities effective October 23, 2008, will be considered for the entire period on appeal. The criteria for rating skin disabilities, including scars, were amended during the pendency of the appeal, effective August 13, 2018. See 83 Fed. Reg. 32,592 (July 13, 2018). When a law or regulation changes during the pendency of an appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (May 23, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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 (May 23, 2000); Kuzma, 341 F.3d 1327. The Board finds that the amended rating criteria for skin disabilities do not affect the Veteran’s claim and, thus, the old regulations on rating skin disabilities will be applied for consistency in adjudication throughout the entire period on appeal. Scars are rated under DCs 7800 to 7805. 38 C.F.R. § 4.118 (2017). The Board finds that DCs 7800 to 7802 do not apply in this case as the disability at issue is not about a scar on his head, face, or neck, nor does it involve a scar with an area of at least 39 square centimeters or more. See 38 C.F.R. § 4.118; November 2016 VA examination. The Board also finds that DC 7805 does not apply as the evidence does not show a disabling effect not considered in a rating provided under DCs 7800 to 7804. 38 C.F.R. § 4.118; November 2016 VA examination. The Board, therefore, finds that the Veteran’s left knee scar can only be rated under DC 7804 for unstable or painful scar(s). 38 C.F.R. § 4.118. After careful review of the evidence, the Board finds that the Veteran’s surgical scars of the left fingers, hand, and wrist, status post tendon repair and carpal tunnel release surgeries, warrant a 10 percent rating, effective January 18, 2012, due to having two painful scars located on the index and long fingers of his left hand. The evidence shows that the Veteran has four scars on his left upper extremity, ranging in length from two to four centimeters. November 2016 VA examination. Two scars are located on his left index and long fingers, and two are on his left wrist. Id. While the Veteran has made inconsistent statements about whether his scars are painful when touched, the Board finds the Veteran’s statement that the scars on his left hand became painful after repetitive use to be probative. See October 2014 VA Form 21-4138; November 2016 VA Form 9. The Veteran is competent to report symptoms such as the pain he experiences from his scars. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006). There is no evidence to the contrary and his lay statement about left hand pain is fairly consistent with the VA examiners’ findings that indicate the Veteran has pain with use of the left hand fingers for gripping. See July 2014 and November 2016 VA examinations. The Board recognizes that the Veteran was afforded a VA examination for his scars in November 2016, in which the VA examiner noted no objective evidence of pain from his scars, such as wincing or grimacing, and also remarked that the Veteran denied having scar pain. See November 2016 VA examination. However, the Veteran had not clarified during examination that his scars were only painful after repetitive use of his hands, and there is no indication that the VA examiner tested whether his scars were painful after repetitive use. Id. While the VA examiner’s opinion is probative as to whether the Veteran’s scars are painful when touched, the Board finds it is less probative in assessing whether the Veteran experiences scar pain after repetitive use of his hand. Finally, the Board notes that the Veteran is currently assigned a 10 percent rating for residuals of laceration of his left index and long fingers, status post tendon repair surgery, effective January 18, 2012, based on painful motion of the index and long finger on his left hand. November 2016 rating decision. The Board finds that, here, assigning a 10 percent rating for surgical scars of the left fingers, hand, and wrist, status post tendon repair and carpal tunnel release surgeries, due to painful scars on his left index and long fingers after repetitive use does not constitute double compensation of the same manifestation, or pyramiding. See 38 C.F.R. § 4.14. The Veteran’s lay statements indicate that the scars on his left hand become painful after repetitive use, but not that they are only painful while in motion. See November 2016 VA Form 9. In contrast, the rating for his residuals of laceration of his left index and long fingers, status post tendon repair surgery are only for painful motion. See November 2016 rating decision; 38 C.F.R. § 4.59. The Veteran’s surgical scars of the left fingers, hand, and wrist, status post tendon repair and carpal tunnel release surgeries are, thus, being rated for a different manifestation than his residuals of laceration of his left index finger, status post tendon repair surgery. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Based on the evidence discussed above, and in resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s surgical scars of the left fingers, hand, and wrist, status post tendon repair and carpal tunnel release surgeries, warrant a 10 percent rating, effective January 18, 2012. (Continued on next page) As the Veteran appealed for a grant of a 10 percent rating for his surgical scars of the left fingers, hand, and wrist, status post tendon repair and carpal tunnel release surgeries, this is considered a full grant of benefits requested. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Lin, Associate Counsel