Citation Nr: 1819476 Decision Date: 04/03/18 Archive Date: 04/12/18 DOCKET NO. 14-37 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a compensable rating for a left shoulder scar. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. A. Prinsen, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1983 to October 1990. This matter is before the Board of Veterans' Appeal (Board) on appeal of a March 2013 rating decision of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2017, the Veteran testified at a Board hearing. The transcript is of record. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, for the entire period on appeal, the Veteran's left shoulder scar, which measured no longer than 10 centimeters, is stable but manifested by complaints of pain. CONCLUSION OF LAW The criteria for a 10 percent rating for left shoulder scar have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code (DC) 7804. REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C. §§ 5100, 5102, 5103, 5103(a), 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In light of the favorable decision herein as to the issue on appeal the Board finds that any deficiencies in the VA's duties to notify and assist were not prejudicial to the Veteran. II. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating are required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's left shoulder scar was assigned a noncompensable rating under DC 7805. The Veteran contends he is entitled to a compensable rating because his scar is painful and unstable. Scars, other than of the head, face, or neck, are evaluated under the provisions of 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804, and 7805. Under DC 7801, a scar not of the head, face, or neck that is deep and nonlinear is rated as follows: a 10 percent rating is assigned for an area of at least 6 square inches (36 sq. cm.) but less than 12 square inches (77 sq. cm.); a 20 percent rating is assigned for an area of at least 12 square inches but less than 72 square inches (465 sq. cm.); a 30 percent rating is assigned for an area of at least 72 square inches but less than 144 square inches (929 sq. cm.); and a maximum 40 percent rating is assigned for an area of 144 square inches or greater. 38 C.F.R. § 4.118, DC 7801. A deep scar is one associated with underlying soft tissue damage. Id. at Note (1). Under DC 7802, a maximum 10 percent rating is assigned for a superficial and nonlinear scar not of the head, face, or neck if it measures 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118, DC 7802. A superficial scar is one not associated with underlying soft tissue damage. Id. at Note (1). DC 7804 assigns ratings for scars that are unstable or painful. A 10 percent rating is assigned for one or two qualifying scars, a 20 percent rating for three or four qualifying scars, and a 30 percent rating for five or more qualifying scars. Note 1 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See 38 C.F.R. § 4.118, Diagnostic Code 7804. Under DC 7805, other disabling effects not considered under diagnostic codes 7800-7804 are rated under an appropriate diagnostic code. 38 C.F.R. § 4.118, DC 7805. The scar on the Veteran's left shoulder is linear and 10 centimeters in length and most appropriately rated based on the criteria found at DC 7804. Upon review of the record, the Board finds that a compensable rating of 10 percent is warranted for the Veteran's painful scar. The Veteran underwent VA examinations in May 2013 and June 2014, both VA examiners reported that the scar was not painful or unstable. In April 2015, the Veteran attended another VA examination and the physical examination revealed a well healed scar that was non-tender to touch. The VA examiner again noted that the Veteran's scar was not painful or unstable. At the Board hearing in June 2017, the Veteran testified that his scar has caused him pain since his surgery. The Veteran's testimony is consistent with treatment records which noted that the Veteran reported ongoing sensitivity and discomfort from his scar that is increased by wearing shirts or other clothing. See Medical Treatment Record - Government Facility June 2015 p.45. The Board finds the Veteran's testimony regarding his pain is competent and credible. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Additionally, in July 2017, the Veteran submitted a scars disability benefits questionnaire, which indicated that the Veteran's scar is painful but not unstable. Therefore, resolving all reasonable doubt in favor of the Veteran, the evidence more nearly approximates a scar which is painful; thus a rating of 10 percent is warranted. The Board finds that a rating in excess of 10 percent is not warranted at any point during the period under review, as the record does not show a scar that is deep and nonlinear for an area of at least 6 square inches or superficial and 144 square inches, or that the scar is both painful and unstable. 38 C.F.R. § 4.118, DC 7801, 7804. Moreover, there is no evidence that the Veteran's scar caused any other impairment. See 38 C.F.R. § 4.118, DC 7805. ORDER A rating of 10 percent for the Veteran's left shoulder scar is granted, subject to the laws and regulations governing the payment of VA monetary benefits. ____________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs