Citation Nr: 20002014 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 19-02 515 DATE: January 9, 2020 ORDER A rating higher than 0 percent for a linear pilonidal cyst scar is denied. A rating higher than 10 percent for a residual post-operative pilonidal cystectomy scar is denied New and material evidence having been received, the application to reopen the claim for service connection for a bilateral shoulder disability is granted. New and material evidence having been received, the application to reopen the claim for service connection for hypertension is granted. New and material evidence having been received, the application to reopen the claim for service connection for bilateral varicose veins is granted. New and material evidence having not been received, the application to reopen the claim for service connection for a bilateral knee disability is denied. New and material evidence having not been received, the application to reopen the claim for service connection for Osgood-Schlatter disease is denied. REMANDED A higher than 10 percent for asbestosis is remanded. Service connection for diabetes mellitus is remanded. Service connection for a bilateral shoulder disability is remanded. Service connection for hypertension is remanded Service connection for bilateral varicose veins is remanded. FINDINGS OF FACT 1. The Veteran’s “V-shaped” scar on the posterior trunk consists of two linear scars that are painful, but not unstable; the scars are less than 77 square centimeters. 2. An unappealed January 2010 rating decision denied service connection for a bilateral shoulder disability, hypertension, bilateral varicose veins, bilateral knee disability and Osgood-Schlatter’s disease; the decision is final. 3. Evidence received since the January 2010 rating decision raises a reasonable possibility of substantiating the previously denied the claims for service connection for bilateral shoulders, hypertension and bilateral varicose veins. 4. The additional evidence received since the January 2010 rating decision does not raise a reasonable possibility of substantiating the claims for bilateral knees and Osgood-Schlatter’s disease. CONCLUSIONS OF LAW 1. The January 2010 rating decision denying service connection for a bilateral shoulder disability, hypertension, bilateral varicose veins, bilateral knee disability and Osgood-Schlatter’s disease is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. 2. New and material evidence has been received to reopen the claims of entitlement to service connection for bilateral shoulders, hypertension and varicose veins. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has not been received to reopen the claims of entitlement to service connection for bilateral knees and Osgood Schlatter’s disease. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from September 1961 to June 1980. Increased ratings The Board notes that scars in general are evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. During the pendency of the Veteran’s claim and appeal, the criteria for rating disabilities of the skin were changed by an amendment to the rating schedule that became effective on August 13, 2018. See 83 Fed. Reg. 32,592 (July 13, 2018). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change. However, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In this case, the changes to the relevant Diagnostic Codes pertain only to the title of the scar codes and the notes following the codes. Although the changes were not considered in a supplemental statement of the case (SSOC), the changes are not relevant to the Veteran’s scars. As such, there is no prejudice to the Veteran in adjudicating this claim. Pilonidal cyst scar Residual post-operative cystectomy scar The Veteran’s service-connected pilonidal cyst and residual post-operative cystectomy scars on the trunk have been assigned a noncompensable and 10 percent rating, respectively, based on the criteria set forth in 38 C.F.R. § 4.118, Diagnostic Codes 7801 and 7804. The Veteran is separately rated for scars under Diagnostic Code 7801 and 7804, and the symptomatology considered under Code 7801 may not be considered when evaluating the scars under Code 7804, and vice versa. See 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). Prior to August 13, 2018, Diagnostic Code 7801 provides ratings for burn or other scars (not on the head, face, or neck) that are deep and nonlinear. Deep and nonlinear scars involving an area or areas of at least 6 square inches (39 sq. cm) but less than 12 square inches (77 sq. cm.) are rated 10 percent. Scars in an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) are rated 20 percent. Scars in an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) are rated 30 percent. Scars in an area or areas of 144 square inches (929 sq. cm.) or greater are rated 40 percent. 38 C.F.R. § 4.118. Note (1) specifies that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801. Note (2) specifies that if multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under § 4.25. Qualifying scars are scars that are nonlinear, superficial, and are not located on the head, face, or neck. 38 C.F.R. § 4.118, Diagnostic Code 7801. Under Diagnostic Code 7804, a 10 percent rating is assigned for one or two scars that are unstable or painful; a 20 percent rating is assigned for three or four scars that are unstable or painful; and a maximum 30 percent rating is assigned for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. An unstable scar is one where, for any reason, there is frequent loss of covering of the skin over the scar. Id. at Note (1). An additional 10 percent may be added if a scar is both unstable and painful. Id. at Note (2). Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable. Id. at Note (3). Under the amended criteria which became effective on August 13, 2018, Diagnostic Code 7804 was not changed. 38 C.F.R. § 4.118. Diagnostic Code 7801 now provides for burn scars of scars due to other causes, not of the head, face, or neck that are associated with underlying soft tissue damage. The rating criteria for this code remained the same. But Note (1) now reads as follows: For the purposes of Diagnostic Codes 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Note (2) now reads as follows: A separate evaluation may be assigned for each affected zone of the body. Combine the separate evaluations under §4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7801. Under both the prior rating criteria and the amended rating criteria, the Board finds that the preponderance of the evidence is against a compensable rating for the Veteran’s service-connected pilonidal cyst scar. The evidence is also against a rating higher than 10 percent for residuals of pilonidal cystectomy scar. A November 2018 VA examination revealed a “V-shaped” scar which the examiner identified as “scar 1” (the pilonidal cyst scar; the left side of the “V”), and “scar 2” (the residuals of a pilonidal cystectomy scar; the right side of the “V”). The pilonidal cyst scar’s measurements were 4 x 3 centimeters; it was described as painful, but not unstable. It was tender to palpation and had underlying soft tissue damage. The post-operative cystectomy scar’s measurements were 4.5 x 2 centimeters, and painful, but not unstable. The examiner indicated that both scars were deep and nonlinear; however, the pilonidal cystectomy scar was not tender to palpation and did not have underlying soft tissue damage. A compensable rating is not warranted for the pilonidal cyst scar (scar 1) pursuant to Diagnostic Code 7801. The pre-amendment Diagnostic Code for 7801 pertained to deep and nonlinear scars. Here, there is no evidence that the Veteran’s scars cover an area of at least 6 square inches. Therefore, a higher 10 percent rating is not warranted. A higher 20 percent is also not warranted for the post-operative cystectomy scar (scar 2) pursuant to Diagnostic Code 7804 as this rating requires three or more scars that are unstable or painful. The Board notes that a higher rating is not warranted under amended Diagnostic Code 7801. Although Note (2) now indicates that a separate evaluation may be assigned for each affected zone of the body, both scars are located within the same zone of the body – the posterior trunk. Therefore, a higher rating is not warranted under the amended code. During the Board hearing, the Veteran asserted that he has two separate scars that should be evaluated as painful. He indicated that the “V” shaped scar is two separate scars that are both very painful. However, as indicated above, the two scars are considered separately and rated under different Diagnostic Codes. Even though the evidence shows that both scars are painful, pursuant to Diagnostic Code 7804, the two scars warrant a 10 percent rating as 10 percent is warranted for one or two scars that are unstable or painful. New and material evidence Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Bilateral shoulders, hypertension and varicose veins A January 2010 rating decision denied service connection for a bilateral shoulder disability based on a finding that that there was no in-service occurrence. Hypertension and varicose veins were denied based on findings that hypertension and varicose veins were not clinically diagnosed. Evidence since the January 2010 rating decision includes Board hearing testimony of the Veteran’s in-service duties that attributed to his shoulder disability and diagnoses of hypertension and varicose veins. The Board finds that this evidence is enough to reopen the previously-denied claims as the new evidence raises a reasonably possibility of substantiating the claims; therefore, the claims are reopened. Bilateral knee disability and Osgood-Schlatter’s disease The January 2010 rating decision also denied service connection for a bilateral knee disability and Osgood-Schlatter’s disease. The denials were based on a lack of diagnoses. Evidence received since the denial, consists of medical treatment records and Board hearing testimony; however, the evidence does not indicate diagnoses of a bilateral knee disability, to include Osgood-Schlatter’s disease. Although the evidence existing in more recent medical treatment records and hearing testimony is new, as it has not before been considered, it does not contain information relating to the previous reason for denial of service connection, which is the existence of current knee disabilities. The evidence is not sufficient to reopen these claims; therefore, the petition to reopen them is denied. REASONS FOR REMAND A rating higher than 10 percent for asbestosis. Remand is required to afford the Veteran a VA examination to evaluate the severity of the Veteran’s asbestosis. During the October 2019 Board hearing, the Veteran provided testimony regarding the worsening of his respiratory disability, to include his shortness of breath upon walking five minutes and inability to mow the lawn. Based on this information and the Veteran’s diagnosis of COPD evidenced in the treatment records, a VA examination should be obtained to determine the current severity of the service-connected asbestosis. Service connection for diabetes mellitus During the October 2019 Board hearing, the Veteran testified that he began to experience symptoms of diabetes mellitus during service. Specifically, he recalled that as a petty officer in service, he experienced dizzy feelings that would subside once he drank orange juice or ate candy. As such, a medical opinion should be obtained to determine the nature and etiology of the Veteran’s currently diagnosed diabetes. Service connection for bilateral shoulders, hypertension, varicose veins VA examinations should be provided for these newly reopened claims to determine their nature and etiology.   The matters are REMANDED for the following action: 1. Schedule an appropriate examination to determine the current severity of the Veteran’s asbestosis. All indicated tests and studies should be performed. 2. Schedule appropriate VA examinations to determine the etiology of the Veteran’s diabetes mellitus, bilateral shoulder disability, hypertension and bilateral varicose veins. All indicated tests and studies should be performed. After reviewing the file, the examiner(s) must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed diabetes mellitus, bilateral shoulder disability, hypertension and bilateral varicose veins is due to or the result of the Veteran’s active service. The rationale for all opinions must be provided. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.