Citation Nr: 1807602 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-07 026A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a compensable rating prior to February 18, 2014, and in excess of 10 percent from February 18, 2014, for residuals of a left palm laceration. REPRESENTATION Veteran represented by: Robert V. Chisholm, Esq. WITNESSES AT HEARING ON APPEAL The Veteran, his wife, and his friend, P.A. ATTORNEY FOR THE BOARD K. Lynch, Associate Counsel INTRODUCTION The Veteran had active service from July 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT The Veteran's left palm laceration has been manifested by one painful, but stable, scar but not by three or four scars that are unstable or painful. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating, but no higher, for residuals of a left palm laceration prior to February 18, 2014 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.10, 4.21, 4.118, Diagnostic Code (DC) 7804 (2017). 2. The criteria for an increased rating in excess of 10 percent for residuals of a left palm laceration from February 18, 2014 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.10, 4.21, 4.118, DC 7804 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor his representative has raised issues with the duty to notify or duty to assist with respect to the issue adjudicated below. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2017). 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). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regardless if established rating or initial rating, if later evidence indicates that the degree of disability increased or decreased following the assignment of the rating, staged ratings may be assigned for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505 (2007). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim, and for an established rating, the relevant time period is from one year prior to the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence of the record. Every item of evidence does not have the same probative value. When there is an approximate balance of evidence for and against the issue, reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Under DC 7804, a 10 percent evaluation is assigned for 1 or 2 unstable or painful scars; a 20 percent evaluation is assigned for 3 or 4 unstable or painful scars; and a 30 percent evaluation is assigned for 5 or more unstable or painful scars. See 38 C.F.R. § 4.118, DC 7804 (2017). Note (1) indicates that an unstable scar is one where, for any reason, there is frequent loss of covering over the scar. Additionally, if one or more scars are both unstable and painful, an extra 10 percent will be added to the evaluation that is based on the total number of unstable or painful scars. Id., Note (2). Background and Analysis At the August 2010 Board hearing, the Veteran stated that he injured his hand when it was pinched between two bomb racks. He testified that the scar pinches, pulls, pricks, and, sometimes, when the weather changes, hurts. The Veteran also testified that the scar is tender and painful to the touch. He stated that his left hand has problems gripping and that it tingles and hurts when he tries to make a fist. See August 2010 hearing testimony, pp. 7-8. In a September 2010 VA treatment record, the treater noted that the Veteran stated that his left hand laceration had bothered him since he injured it in service and that the scar pinched and felt as though it was going to pull. The treater noted that the resultant scar was visible and palpable. The treater observed that the scar was over or just distal to the hypothenar eminence, that is, in the palm of the hand and in line with the fifth finger. The treater noted that the fifth finger itself had intact sensation to either side of the tip. See September 2010 medical treatment record, p. 1. In a March 2012 VA treatment record, the treater noted that since his injury in service, the Veteran had been experienced scar symptomatology of pain and tenderness that continued to bother the Veteran. See July 2016 CAPRI records, p. 135. In a February 2014 VA treatment record, the Veteran reported that steroid injections into the area of his left hand scar did not help and that he was still experiencing pain. See July 2016 CAPRI records, p. 137. At a February 2015 VA examination, the examiner noted only one 2 cm by 0.5 cm deep non-linerar scar that was painful (pinchey and achey). The examiner noted that the scar was not unstable and did not exhibit a frequent loss of skin over the scar. The examiner further stated that the scar was not both painful and unstable and that the scar was not due to burns. The Veteran reported that his scar pain had increased. However, the examiner noted no loss of muscle, nerve damage, or loss of range of motion or function due to the scar. The examiner stated that the scar had no effect on the Veteran's ability to work and did not effect the Veteran's range of motion. Upon reviewing the evidence, the Board finds that the Veteran's report of scar pain since active duty is competent and credible, as it is generally consistent with the evidence of record that includes his August 2010 Board hearing testimony, the September 2010 VA treatment record, the March 2012 VA treatment record, the March 2014 VA treatment record, and the February 2015 VA examination reports of scar pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In sum, the Veteran's credible and competent complaints of consistent pain since service and the February 2015 VA examiner notation of only one stable scar correspond to a 10 percent initial rating. However, the evidence does not demonstrate that the criteria for a higher evaluation is warranted.. The Board has also considered the applicability of other potentially applicable diagnostic criteria for rating the Veteran's scar, but finds that a higher rating is not assignable under any other diagnostic code, to include DCs 7800, 7801 and 7802. Also, while the Veteran reported difficulty with gripping, the February 2015 VA physical examination of record does not reflect that the Veteran's left hand scar results in any limitation of motion or loss of function. For this reason, the Board concludes that the preponderance of the evidence is against a rating under DC 7805. Accordingly, for the residuals of a left palm laceration, the Board finds that the preponderance of the evidence is for a finding that the Veteran is entitled to a 10 percent rating, but no higher, prior to February 18, 2014, and is against a finding that the Veteran is entitled to an increased rating in excess of 10 percent from February 18, 2014. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to a 10 percent rating, but no higher, prior to February 18, 2014 for residuals of a left palm laceration is granted. Entitlement to an increased rating in excess of 10 percent from February 18, 2014 for residuals of a left palm laceration is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs