Citation Nr: A19001544 Decision Date: 09/26/19 Archive Date: 09/25/19 DOCKET NO. 190213-3547 DATE: September 26, 2019 ORDER The appeal for a disability rating increase for evaluation of scars (3), SFW, right elbow, hand, and forearm with retained metallic foreign bodies, is granted as a separate evaluation at 20 percent, but no higher, for three total painful scars of the upper right extremity from the date of claim, March 7, 2016. The appeal for a compensable disability rating for evaluation of scar, SFW, chest with retained metallic foreign bodies, which is currently 0 percent disabling, is denied. The appeal for an increased disability rating for scar, SFW, right hand with retained metallic bodies, for disability characteristics other than pain is denied. The appeal for a compensable disability rating for evaluation of residuals, right perforated eardrum, which is currently 0 percent disabling, is denied. FINDINGS OF FACT 1. The Veteran has three painful scars total, dispersed on the right upper extremity forearm, elbow area, and hand. 2. The Veteran’s scar, SFW, chest with retained metallic foreign bodies, is not painful or unstable, and is not a burn scar and is not deep and nonlinear. 3. The Veteran is service-connected for residuals, right perforated eardrum, and is separately rated for hearing loss disability. CONCLUSIONS OF LAW 1. The criteria for a separate disability rating of 20 percent, but no higher, for evaluation of scars (3), SFW, right elbow, arm, and forearm, right upper extremity with retained metallic foreign bodies, are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code (DC) 7804. 2. The criteria for a compensable evaluation of scar, SFW, chest with retained metallic foreign bodies, which is currently 0 percent disabling, are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7805. 3. The criteria for a compensable evaluation of residuals, right perforated eardrum, which is currently 0 percent disabling, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.87, DC 6211. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1965 to August 1967. The record shows that the agency of original jurisdiction (AOJ) issued a rating decision in June 2016 that denied higher ratings for the Veteran’s SFW of the chest, SFW of the right hand, and shell fragment wounds of the right elbow, arm, and forearm. In September 2016, the Veteran filed a notice of disagreement with the denial of higher ratings. In May 2018, the Veteran submitted a form electing to opt-in to the Rapid Appeals Modernization Program (RAMP). He acknowledged that by electing participation in RAMP, he was withdrawing all eligible compensation claims in their entirety. He selected the higher-level review option. By doing so, he acknowledged that the review would be based on the evidence submitted to VA as of the date of the election. Thereafter, in August 2018, the AOJ issued a higher-level review decision that continued the denial of higher ratings for the issues on appeal. In response to this decision, the Veteran submitted a December 2018 RAMP Selection form electing to have the issues reviewed under the supplemental claim option. By doing so, he acknowledged that he understood that he must submit or identify new and relevant evidence that was not previously considered by the local VA office. In January 2019, the Veteran was informed that his December 2018 election had been received and that his claim would be reviewed, and he would be provided with a new decision based on the review option selected. Thereafter, the AOJ issued a January 2019 rating decision that continued to denial of higher ratings. In February 2019, the Veteran elected the modernized review system. 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2(d)). The Veteran elected to appeal the January 2019 decision to the Board of Veterans' Appeals (Board) under the Direct Review option. In doing so, he acknowledged that the review would be undertaken based on the evidence of record at the time of the prior decision. The Board notes that in the process of Appeals Modernization and RAMP, selecting a direct review to the Board of Veterans’ Appeals means that the Board will consider evidence of record at the time of the prior rating decision. While the appeal was pending, the AOJ issued a rating decision in July 2019 that, inter alia, awarded a 20 percent disability rating for the Veteran’s shrapnel injury of the right upper extremity with painful scar, effective March 11, 2019. 1. Evaluation of scars (3), SFW, right elbow, arm, and forearm, and hand with retained metallic foreign bodies The Veteran contends that the scars of the right arm are worse than contemplated by the current noncompensable disability evaluation. After a thorough review of the evidence and resolving reasonable doubt in favor of the Veteran, the Board finds that an increase via separate disability rating to 20 percent, but no higher, for three painful scars of the right upper extremity located on the forearm, hand, and elbow is warranted throughout the period on appeal. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran is currently rated at a noncompensable level for scars associated with residuals of shrapnel injury to the right arm under Diagnostic Code 7805 effective from August 30, 1967 and shrapnel injury, right upper extremities, painful scar, from March 11, 2019. 38 C.F.R. § 4.118. At a July 26, 2010 VA treatment appointment, the Veteran stated that since the shrapnel injury in service, his right arm gets cold in the winter and is painful with activity as well as the cold environment, including air conditioning. At an April 2015 VA examination for scars, the Veteran reported that the right arm scars hurt when “bumped.” The examiner recorded three scars, one each on the right arm, right elbow area, and right forearm area. The examiner noted that the scars were superficial and nontender and not attached to underlying tissue. The Veteran underwent a VA examination for scars in May 2016. At that examination, three scars were noted on the Veteran’s right upper extremity: dorsum right hand, right wrist, and right elbow. The right hand and right wrist were linear scars of 0.3 cm by 0.2 cm and 2 cm x 0.2 cm respectively while the right elbow scar was superficial and nonlinear measuring 0.4 cm and 0.3 cm. The scars were not deep and not caused by burns. The Veteran underwent a VA examination in November 2016 for scars. The examiner stated that the right arm scars had not changed since the prior year’s examination and did not report on them, instead referring to the April 2015 examination. In the Veteran’s August 2018 appeal election form, he stated that the scars on his right arm give him pain “all the time.” Scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 are rated under Diagnostic Code 7805. Any disabling effects not considered in a rating provided under Diagnostic Codes 7800-7804 should be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118. Diagnostic Code 7800 pertains to scars of the head, face, or neck, which was not the location of the Veteran’s service-connected scars under appeal here. Under Diagnostic Code 7801 burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.), warrant a 10 percent rating. Note (1) provides that a deep scar is one associated with underlying soft tissue damage. Under Diagnostic Code 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 evaluation. Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage. The Veteran’s scars are not reported as deep. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, 10 percent is added to the evaluation based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable. In this case, the Veteran’s scars are reported by the Veteran to be painful at times, although the VA examiners report them as not painful. Under Diagnostic Code 7805, disabling effects of scars not considered under Diagnostic Codes 7800-7804 may be rated under an appropriate code. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran’s claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Board finds that the evidence is at least in equipoise as to whether the Veteran has painful scars of the right upper extremity. Accordingly, a separate disability rating is warranted for three painful scars of the right upper extremity located on the right elbow area, right hand, and right forearm, which is a 20 percent rating under Diagnostic Code 7804. A rating in excess of 20 percent is not warranted as the record does not show the involvement of five or more scars that are painful or unstable. The instructions for Diagnostic Code 7804 Note (3) allow for separate ratings under 7804 and 7805, which is appropriate in this Veteran’s case for the right upper extremity scars. 38 C.F.R. § 4.118. With respect to whether a compensable rating under Diagnostic Code 7805 based on limitation of function not contemplated under Diagnostic Code 7804. The May 2015 examination report notes that the scars did not cause any limitation of movements or function of the joints. Likewise, the November 2016 examination report notes that the Veteran’s scars did not result in limitation of function; did not have any other pertinent physical findings, complications, signs or symptoms (such as muscle or nerve damage) associated with any scar. Accordingly, a compensable evaluation under Diagnostic Code 7805 is not warranted. In light of the foregoing, the Board concludes that the criteria for a 20 percent evaluation under Diagnostic Code 7804 is warranted throughout the appeal period. 2. Evaluation of scar, SFW, chest with retained metallic foreign bodies The Veteran contends that his service-connected chest scar disability warrants a compensable rating. After a thorough review of the evidence, the Board finds that a compensable rating is not warranted. The Veteran is service-connected at a noncompensable level for chest scar since 1967 under Diagnostic Code 7805. At an April 2015 VA examination for scars, the Veteran reported that the right arm scars hurt when “bumped.” The examiner recorded three scars, one each on the right arm, right elbow area, and right forearm area. The examiner noted that the trunk area was not affected. At the May 2016 VA examination, the examiner noted a scar on the anterior trunk right parasternal region that was linear and measured 1.5 cm x 0.2 cm. The scar was not caused by burns, was not deep, painful, or unstable. At the November 2016 VA examination, the examiner noted that the trunk area was not affected by scarring. In contrast with the right arm scars and associated shrapnel residuals there, the Veteran has not asserted that the chest scar is painful, unstable, or otherwise causes functional problems that would be applicable under an alternative or additional separate Diagnostic Code. 38 C.F.R. § 4.118. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran’s claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence is against a compensable rating for scar associated with shrapnel injury on the chest. 3. Evaluation of scar, SFW, right hand with retained foreign metallic bodies See evaluation of right upper extremity scars, section 1. A separate compensable rating of 20 percent is assigned under Diagnostic Code 7804 for the right upper extremity scars as painful. With respect to whether a separate rating in warranted for limitation of function under Diagnostic Code 7805, as noted above, the May 2015 examination report notes that the scars did not cause any limitation of movements or function of the joints. Likewise, the November 2016 examination report notes that the Veteran’s scars did not result in limitation of function; did not have any other pertinent physical findings, complications, signs or symptoms (such as muscle or nerve damage) associated with any scar. Accordingly, a compensable evaluation under Diagnostic Code 7805 is not warranted. 4. Evaluation of residuals, right perforated eardrum The Veteran contends that his service-connected residuals of perforated right ear drum are worse than contemplated by the noncompensable disability rating. After a thorough review of the evidence, the Board finds that a compensable rating is not warranted. The May 2016 VA examination noted perforated right ear tympanic membrane diagnosis. The examiner noted that the condition has progressed to include hearing loss. The Veteran’s right perforation of the tympanic membrane is currently rated under 38 C.F.R. § 4.87, DC 6211. Under DC 6211, perforation of the tympanic membrane (eardrum) warrants a noncompensable (zero percent) rating. It is the maximum rating for perforation of the tympanic membrane under that DC. Accordingly, the Veteran may only receive a higher rating under a different DC for diseases of the ear. In this regard, the Board has considered all of the relevant DCs for the right ear disability. The Veteran is separately rated for hearing loss disability. Thus, to award an additional rating under the DC pertaining to hearing loss would amount to impermissible pyramiding. See 38 C.F.R. § 4.14 (noting that the evaluation of the same disability, or the same manifestation of a disability, under different DCs is to be avoided). In addition, there is no evidence of chronic nonsuppurative otitis media, mastoiditis, cholesteatoma, otosclerosis, peripheral vestibular disorders, Meniere’s syndrome, loss of auricle, malignant neoplasm of the ear, benign neoplasm of the ear, or chronic otitis externa. See 38 C.F.R. § 4.87, DCs 6200, 6201, 6202, 6204, 6205, 6207, 6208, 6209, and 6210. As the other DCs for diseases of the ear are inapplicable, the Veteran’s perforation of the right tympanic membrane must continue to be rated as noncompensable under DC 6211. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board’s choice of DC should be upheld so long as it is supported by explanation and evidence). Accordingly, the Board finds that entitlement to a compensable evaluation for residuals, perforation of the right tympanic membrane, is not warranted. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Miller 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.