Citation Nr: 1806484	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  14-15 425	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial compensable evaluation for a left shoulder scar.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. Whitelaw, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Navy from June 1983 to April 1986

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  Jurisdiction of the Veteran's claim was subsequently transferred to the RO in St. Petersburg, Florida.

The Veteran appeared and testified before the undersigned Veterans Law Judge at a hearing conducted in March 2017.  A transcript of the hearing has been associated with the Veteran's claims file.


FINDING OF FACT

The Veteran's left shoulder scar is painful, superficial, and nonlinear, but it is not deep and it does not measure 144 square inches or greater.


CONCLUSION OF LAW

The criteria for an initial evaluation of 10 percent for a left shoulder scar, and no higher, have been met for the entire appellate period.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.118, Diagnostic Codes (DC) 7801, 7802, 7804, 7805 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Legal Standard

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degree of disability specified is 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 U.S.C. § 1155; 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.  Otherwise, the lower rating will be assigned.  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.  However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided.  38 C.F.R. § 4.14.

The 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).  Separate ratings may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be staged.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  

Throughout the current appellate period, the Veteran's left shoulder scar has been evaluated pursuant to DC 7802, which evaluates scars that are not of the head, face, or neck and which are superficial and nonlinear.  However, the Board has also considered whether an evaluation is warranted pursuant to DC 7801, 7804, and 7805.

Under DC 7801, burn scars or scars due to other causes not of the head, face, or neck, are evaluated when these scars are deep and nonlinear.  (Note (1) provides that a deep scar is one associated with underlying soft tissue damage).  Pursuant to DC 7802, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear, in an area or areas of 144 square inches (929 sq. cm.) or greater, warrant a 10 percent rating.  (Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage).

Code 7804 is used when with painful or unstable scars and assigns a 30 percent rating for five or more scars that are unstable or painful, three or four scars that are unstable or painful warrant a 20 percent rating; one or two scars that are unstable or painful warrant a 10 percent rating.  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  If one or more scars are both unstable and painful, regulations instruct the rater to add 10 percent to the evaluation that is based on the total number of unstable or painful scars.  Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable.  38 C.F.R. § 4.118, Diagnostic Code 7804. 

For scars, other (including linear scars) and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804, any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 are to be evaluated under an appropriate diagnostic code.  38 C.F.R. § 4.118, Diagnostic Code 7805.

II.  Analysis

The Veteran contends that his noncompensable initial evaluation for his service-connected left shoulder scar does not sufficiently compensate the extent of his disability.  To evaluate his claim, the Veteran was afforded a VA examination in March 2011.  At that time, the Veteran reported that his scar was itchy and irritating, but reportedly denied pain, skin breakdown, or other symptoms.

Upon examination, the evaluating clinician reported that the Veteran had a non-linear scar that was less than 6 square inches.  This scar was observed to be stable and did not have pain on palpation or result in limitation of motion or loss of function.  The examiner also indicated that there was no underlying soft tissue damage or tissue, loss, no adherence to underlying tissue, no inflammation, edema, or keloid formation, and no signs of elevation or depression of the scar.  The scar's texture was also normal with no signs of induration or inflexibility.  

In his February 2014 VA Form 9, the Veteran indicated that he experienced discomfort, itchiness, and irritation with the continued need to use creams and ointments throughout the day in order to keep from scratching his scar until it bleeds.  The Veteran largely reiterated these statements at the March 2017 Board hearing.  At that time, the Veteran testified that his scar was, in fact, tender when it is touched and that there had been many times when the scar had been red and raw.  He also stated that the scar was tender most of the time and also caused recurring pain.  To accommodate his scar, the Veteran indicated that he had to modify his performance of activities such as household chores in order to prevent the scar from getting touched or hit.  Of particular relevance, the Veteran stated that these symptoms had been ongoing since before he initially filed his claim for service connection in 2011 and that they dated back to his initial left shoulder surgery in service.

At the outset, the Board does not find that the criteria have been met for a compensable evaluation pursuant to DCs 7801 or 7802, or 7805.  With respect to Code 7801, the record is devoid of any competent evidence suggesting that the Veteran's left shoulder scar is associated with underlying soft tissue damage and it is accordingly not "deep" for VA purposes.  Similarly, although the Veteran's scar is superficial and nonlinear, it does not measure the 144 square inches or greater necessary for a compensable evaluation under Code 7802.  

However, the Board does find that the evidence is at least in equipoise with respect to whether the Veteran has a painful scar.  The Board recognizes that the March 2011 VA examiner specifically reported that there was no pain on palpation of the Veteran's scar and appears to suggest that the Veteran denied pain in the scar.  However, the Veteran is competent to testify to the personally observable symptoms of pain in his scar.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Although this testimony appears to contradict the March 2011 VA examination report at first glance, the Veteran has contended that he experiences painful discomfort in his scar both in his VA Form 9 and again at the Board hearing.  Given this conflicting, yet competent and probative evidence and resolving all reasonable doubt in the Veteran's favor, the Board therefore finds that the Veteran's left shoulder scar is painful.  

Pursuant to DC 7804, a single painful scar that is unstable or painful satisfies the criteria for a 10 percent evaluation.  As this is the only scar for which the Veteran has been service connected, the Board does not find that an evaluation in excess of 10 percent is warranted pursuant to Code 7804.  Likewise, the Veteran's testimony that he modifies his activities to avoid bumping or hitting his scar would appear to be fully accommodated for by the evaluation for a painful scar.  As such, the Board does not find that there are any disabling effects not considered under DCs 7801, 7802, or 7804 and an additional evaluation is not warranted under DC 7805.  For these reasons, the Board finds that the criteria for a 10 percent evaluation for a left shoulder scar, and no higher, have been satisfied for the entire period currently on appeal.


ORDER

A 10 percent evaluation, and no higher, is granted for a left shoulder scar.




____________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs