Citation Nr: 19172829 Decision Date: 09/19/19 Archive Date: 09/18/19 DOCKET NO. 18-05 655 DATE: September 19, 2019 ORDER Entitlement to an initial compensable rating prior to February 24, 2017 for service-connected surgical scars status post back surgery is denied. Entitlement to a 10 percent rating from February 24, 2017 for service-connected surgical scars status post back surgery is granted. FINDINGS OF FACT 1. Prior to February 24, 2017 the Veteran did not have painful or unstable scars from back surgery. 2. Since February 24, 2017 the Veteran has one painful scar from back surgery. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating prior to February 24, 2017 for service-connected surgical scars status post back surgery have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7805. 2. The criteria for a 10 percent rating, but no higher, from February 24, 2017 for the Veteran’s service-connected surgical scars status post back surgery have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1992 to March 1993. The issues on appeal stem from the June 2017 rating decision awarding service connection for surgical scars secondary to the Veteran’s back disability. Disability ratings 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 (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Scars are rated under 38 C.F.R. § 4.118, Diagnostic Codes (DCs) 7800-7805. The scar regulations were revised, effective August 13, 2018 and these new regulations apply to claims that were pending on August 13, 2018, if the new regulations are more favorable to the Veteran’s case. Thus, the Board will consider both the old and new scar regulations and apply the more favorable criteria to the Veteran’s claims where appropriate. 38 C.F.R. § 4.118, DCs 7800-05. Rating Schedule Prior to August 13, 2018 Under the scar regulations in effect prior to August 13, 2018, DC 7801 provided ratings for scars, other than the head, face, or neck, that were deep or that caused limited motion. Scars that were deep or that caused limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) were rated as 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) were rated as 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) were rated as 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq.cm.) were rated as 40 percent disabling. Note (1) to DC 7801 provided that a deep scar was one associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Under the scar regulations in effect prior to August 13, 2018, DC 7802 provided ratings for scars, other than the head, face, or neck, that were superficial or that did not cause limited motion. Superficial scars that did not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, were rated as 10 percent disabling. Note (1) to DC 7802 provided that a superficial scar was one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Under the scar regulations in effect prior to August 13, 2018, DC 7804 provided a 10 percent rating for superficial unstable scars. DC 7804 provided that one or two scars that were unstable or painful were rated as 10 percent disabling. Three or more scars that were unstable or painful were rated as 20 percent disabling. Five or more scars that were unstable or painful were rated as 30 percent disabling. Note (1) to DC 7804 provided that an unstable scar was one where, for any reason, there was frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118. Under the scar regulations in effect prior to August 13, 2018, DC 7805 provided that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under DCs 7800-04 under an appropriate DC. 38 C.F.R. § 4.118. Rating Schedule After August 13, 2018 Under the scar regulations in effect since August 13, 2018, DC 7801 provides ratings for scars, other than the head, face, or neck, that are associated with underlying soft tissue damage. Scars that are associated with underlying soft tissue damage in an area or areas exceeding 6 square inches (39 sq. cm.) are rated as 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) are rated as 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) are rated as 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq.cm.) are rated as 40 percent disabling. 38 C.F.R. § 4.118. Under the scar regulations in effect since August 13, 2018, DC 7802 provides ratings for scars, other than the head, face, or neck, that are not associated with underlying soft tissue damage. A scar that is not associated with underlying soft tissue damage in an area or areas of 144 square inches (929 sq. cm.) or greater is rated as 10 percent disabling. 38 C.F.R. § 4.118. Under the scar regulations in effect since August 13, 2018, DC 7804 provides a 10 percent rating for a scar that is unstable or painful. DC 7804 provided that one or two scars that are unstable or painful are rated as 10 percent disabling. Three or more scars that are unstable or painful are rated as 20 percent disabling. Five or more scars that are unstable or painful are rated as 30 percent disabling. Note (1) to DC 7804 provides that an unstable scar was one where, for any reason, there was frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118. Under the scar regulations in effect since August 13, 2018, DC 7805 provides that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under DCs 7800-04 under an appropriate DC. 38 C.F.R. § 4.118 1. An initial compensable rating prior to February 24, 2017 for service-connected surgical scars status post back surgery. The Veteran asserts his surgical scars are more severe than the currently assigned rating. He asserts he underwent spinal fusion surgery in February 24, 2017 and that he has had a painful abdominal scar since that time. See July 2017 Notice of Disagreement. Upon review, the record is absent evidence of surgical scars, painful or unstable, prior to February 24, 2017. Indeed, the Veteran asserts that his scars were the result of surgery in February 2017. In reaching this decision the Board of Veterans’ Appeals (Board) considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning a higher rating, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. A 10 percent rating from February 24, 2017 for service-connected surgical scars status post back surgery. The Veteran presented for a Department of Veterans Affairs (VA) examination in May 2017. The examiner reported there was no objective evidence that the Veteran’s scars were painful, unstable, or have a total area equal to or greater than 39 square centimeters (6 square inches). He reported the Veteran had a low back scar measuring 3.5 centimeters in length by 0.2 centimeters in width, and surgical scars in the low back measuring 2.5 centimeters by 0.2 centimeters and 3 centimeters by 0.2 centimeters, and an abdominal surgical scar for his back surgery measuring 13 centimeters by 0.2 centimeters. A July 2017 VA treatment report reflects the Veteran reported the incision along his waistline was irritating. A December 2017 private treatment record reflects the Veteran sought treatment for a painful abdominal scar as a result of his February 24, 2017 back surgery. In January 2018 the Veteran reported he has an eight-inch long scar across his abdomen from his back surgery. He reported the scar is located on his belt line and is extremely sensitive to touch, causes pain and is limiting. He reported he receives injections in the area to alleviate the pain, and that the injections agitate the area. (Continued on the next page)   The Board finds the Veteran competent to report that his scar is painful and finds no reason to doubt his credibility. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the objective medical evidence of record reflects that the Veteran has one painful scar across his abdomen from his back surgery. Therefore, a rating of 10 percent for painful scarring is warranted. For a higher rating, the evidence must show that a scar is unstable and painful or that there are three or more unstable or painful scars. 38 C.F.R. §§ 4.118, DC 7804, Note 2. The May 2017 VA examiner recorded that the Veteran has three scars on his low back and one scar on his abdomen from back surgery, and that the scars are not unstable, meaning there is not a frequent loss of covering of skin over the scar. Id. Note 1. The Veteran reports that his abdominal scar is painful, and the medical evidence supports that such is the case. The record is absent evidence, and the Veteran does not report, that he has more than one painful or unstable scar. L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Gonzalez, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.