Citation Nr: 20079986 Decision Date: 12/18/20 Archive Date: 12/18/20 DOCKET NO. 16-38 450 DATE: December 18, 2020 ORDER Entitlement to an initial compensable disability rating for service-connected right wrist scar (claimed as right wrist condition) is denied. FINDING OF FACT The competent evidence of record does not show that the Veteran has a painful or unstable scar. CONCLUSION OF LAW The criteria for an initial compensable rating for a right wrist scar have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7805 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1979 to March 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In March 2016, the Veteran submitted a notice of disagreement (NOD) appealing the evaluation of his right wrist scar. In August 2016, the RO issued a statement of the case (SOC) and the Veteran perfected his substantive appeal. In an October 2018 decision, the Board remanded the issue for additional development, which has been substantially completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran’s appeal has been advanced on the docket. 38 U.S.C. § 7107(a)(2) (2012); 38 C.F.R. § 20.900(c) (2019). 1. Entitlement to an initial compensable disability rating for service-connected right wrist scar (claimed as right wrist condition) is denied. The Veteran is seeking a higher disability rating for his right wrist scar. Specifically, he contends that his scar is painful. See August 2016 VA Form 9. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 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 their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the veteran’s symptoms, but it must also make findings as to how those symptoms impact the veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 49. Here, the Veteran is currently in receipt of a non-compensable rating, effective December 18, 2014, for his service-connected right wrist scar, under Diagnostic Code 7805. The Rating Schedule criteria for evaluating scars encompasses Diagnostic Codes 7800 through 7805. Diagnostic Code 7800 pertains to burn scars of the head, face, or neck; scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. 38 C.F.R. § 4.118. Diagnostic Code 7801 pertains to burn scars or scars due to other causes, not of the head, face, or neck that are deep and nonlinear. 38 C.F.R. § 4.118. Under this Diagnostic Code, a 10 percent rating is to be assigned when the scar(s) cover an area or areas of at least 6 square inches (39 sq. cm) but less than 12 square inches (77 sq. cm). Area or areas of at least 12 square inches (77 sq. cm) but less than 72 square inches (465 sq. cm) is assigned a 20 percent rating. Area or areas of at least 72 square inches (465 sq. cm) but less than 144 square inches (929 sq. cm) is assigned a 30 percent rating. Area or areas of 144 square inches (929 sq. cm) or greater is assigned a 40 percent rating. Diagnostic Code 7802 pertains to burn scars or scars due to other causes not of the head, face, or neck that are superficial and nonlinear. 38 C.F.R. § 4.118. Under this DC, a 10 percent rating is assigned when the scar(s) cover an area or areas of 144 square inches (929 sq. cm) or greater. No other rating is provided by this DC. Note (1) states that a superficial scar is one not associated with underlying soft tissue damage. Diagnostic Code 7804 provides that one or two scars that are unstable or painful warrant a 10 percent evaluation. 38 C.F.R. § 4.118. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note (1). If one or more scars are both unstable and painful, the rater is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. at Note (2). Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable. Id. at Note (3). Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars evaluated under DCs 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under DCs 7800-7804 under an appropriate diagnostic code. 38 C.F.R. § 4.118. Turning to the evidence of record, in a May 2015 VA scar examination, the Veteran reported a small laceration on his right wrist from broken glass during service. The scar was linear and measured 3 centimeters squared by .02 centimeters squared. The scar was not found to be unstable or painful. In a subsequent May 2019 VA scar examination, the Veteran reported that he had a small laceration from broken glass during the service and right scar pain for several years. He reported that the pain over his scar is constant and he describes the pain as sharp. He also asserted that he has been diagnosed with carpal tunnel syndrome and wrist tendinitis that is unrelated to the scar. He wears a wrist splint for the wrist tendinitis and carpal tunnel syndrome that does not aggravate the scar. He reported that the scar is not unstable, and he does not use any topical medication on the scar, but he does take Naproxen for wrist pain. The examiner noted that the Veteran has been diagnosed with arthritis of the right wrist. She noted one painful scar that measured 3 centimeters squared by .01 centimeters squared that is superficial, non-erythematous, non-tender to palpation, and non-adherent. The scar is not unstable, is linear, well-healed and non-raised. No depressions were noted. The scar is not deep and does not cause limitation of motion. Indeed, there was no limitation of range of motion secondary to the scar. Instead, the Veteran did have tenderness over flexure aspect of the wrist (not near the scar) consistent with wrist tendinitis. In a June 2020 addendum opinion, the May 2019 examiner clarified that the Veteran had reported pain over his right wrist scar. The examination revealed a well-healed scar. The scar was non-tender to palpation. There was no erythema, edema, or depression noted over the scar on examination. The Veteran described pain as “anything I do with his right hand increases the pain in my hand like opening bottles or squeezing anything” and with repetitive hand movement. The Veteran was seen by orthopedic surgeon for right wrist pain and was diagnosed with cervical radiculopathy and hand/wrist arthritis. She opined that Veteran’s hand pain is most likely secondary to arthritis of the wrist and C5 radiculopathy (confirmed on EMG/NCV on February 12, 2020) than the scar on his right wrist. VA treatment records from May 2013 and July 2013 show treatment for chronic right wrist pain and increased wrist pain when using cane. On examination the Veteran’s surface scar was not tender to palpation. February 2014, March 2014, January 2015, and March 2015 VA treatment records show physical therapy for chronic right wrist pain caused by arthritis. In a VA treatments record dated October 2015, the Veteran stated that he was cut in 1981 in his right wrist and that he was in pain. He stated that he has had therapy, but it is not getting any better, rather, it was getting worse. In addition, walking with his cane in right hand also makes it worse. In a subsequent February 2016 VA treatment record the Veteran reported a throbbing right wrist. On examination, pain was noted at the base of the thumb. The Veteran was noted to have some arthritic changes in joint of right thumb. In a July 2017 VA treatment record the Veteran again reported chronic wrist pain and numbness. On examination, the physician noted a well-healed incision over dorsal aspect of right wrist. He diagnosed the Veteran with carpal tunnel flare-up. And, in an October 2017 VA treatment record the Veteran reported wrist pain with onset in service. The Veteran was diagnosed with carpal tunnel of the right wrist. Reviewing the evidence of record, the Board finds that a higher rating is not warranted for the Veteran’s service-connected right wrist scar. As a preliminary matter, the Veteran’s scar is not a burn scar, is not at least 39 square cm, non-linear, and does not manifest on the head, face, or neck. See generally VA Treatment Records. Accordingly, the Board finds that Diagnostic Codes 7800, 7801, and 7802 are not applicable in this case. The Board also notes that during the appeal period, VA amended its regulations governing skin disabilities effective August 13, 2018. The timing of that change requires the Board to consider the claim under both the previous regulations and the newly amended criteria for the diagnostic code and apply the criteria which yields a higher rating. VAOPGCPREC 7-2003 (2003), 69 Fed. Reg. 25179 (2004); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Amended rating criteria, if favorable to the claim, can be applied only on and after the effective date of the regulatory change. Here, the 2018 revisions did not substantively change the Diagnostic Codes applicable to the Veteran’s scar. Concerning a compensable disability rating under Diagnostic Codes 7804 and 7805, the Board finds that the criteria for a higher rating have not been met. Specifically, the competent medical record of evidence, to include VA treatment records and VA examinations do not show that the Veteran’s right wrist scar was painful or unstable or resulted in any limitation of motion. Rather, the records show that the pain and limitation of motion in the Veteran’s right wrist is attributed to carpal tunnel syndrome, arthritis, and tendinitis. See June 2020 VA Addendum Opinion; May 2019 VA Scar Examination; October 2017 VA Treatment Record. As such, a higher disability rating for a painful or unstable scar or limitation of motion under Diagnostic Codes 7804 and/or 7805 is not warranted. In reaching this decision, the Board has considered the Veteran’s competent, consistent, and credible reports regarding chronic right wrist pain stemming from his scar and increased pain while using a cane or holding items and decreased range of motion. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran’s contemporaneous lay assertions concerning the nature and extent of his disability were included in relevant medical findings throughout the appeal period. In this regard, the medical findings (as provided in the examination reports and medical records) directly address the evaluation criteria for this disability. Specifically, the VA treatment records do not attribute the Veteran’s right wrist pain or limitation of motion to his right wrist scar. Rather, the May 2019 VA examiner noted that the Veteran experiences pain over his scar and opined that the pain is more likely than not due to the Veteran’s arthritis and not to the scar. She also noted that any limitation of motion was not secondary to his right wrist scar. Furthermore, to the extent the Veteran believes the source of his pain or limitation of motion is his right wrist scar, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires expert medical knowledge. Therefore, in this case, it is outside the competence of the Veteran because the record does not show that he has the medical training or credentials to make such a determination. Kahana v. Shinseki, 24. Vet. App. 428 (2011). Based on the foregoing, although the Board finds value in the Veteran’s lay assertions regarding experiencing right wrist pain, the Board finds the May 2019 VA examiner’s nexus opinion to be highly probative and affords it higher probative weight. The opinion was based on an examination, review of the claims file, and the opinion is internally consistent and consistent with other evidence of record. Moreover, the examiner provided an adequate rationale for her opinion and there is no competent medical opinion of record linking the right wrist pain to the Veteran’s right wrist scar. Rather, as noted above, the evidence of record links the Veteran’s right wrist pain to his nonservice-connected carpal tunnel syndrome and arthritis. Unfortunately, for the reasons set forth above, both the best medical evidence in this case, and the facts of this case, provide highly probative evidence against the Veteran’s claim. As the preponderance of the evidence weighs against the Veteran’s claim for an initial compensable disability rating for his service-connected right wrist scar, there is no reasonable doubt to be resolved, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kaufer, 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.