Citation Nr: 20021704 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 16-11 125A DATE: March 26, 2020 ORDER Entitlement to a 10 percent disability rating, and no higher, for residual of right-hand scar at the tip of distal lateral third finger is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, for the entire period on appeal, the Veteran’s residual of right-hand scar at the tip of distal lateral third finger, which measured no longer than two centimeters, is stable but has been manifested by complaints of pain. CONCLUSION OF LAW The criteria for a 10 percent disability rating, and no higher, for residual of right-hand scar at the tip of distal lateral third finger have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code (DC) 7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from September 1961 to September 1963. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A videoconference hearing was held before the undersigned Veterans Law Judge in February 2020. A transcript of this hearing has been associated with the claims file. As a preliminary matter, the Board acknowledges that the Veteran submitted a form to opt into the VA’s Rapid Appeals Modernization Program (RAMP) in June 2018. However, the Board notes that at that time, the present appeal had previously been activated at the Board, and therefore was no longer eligible for adjudication in the RAMP program. A 10 percent disability rating, and no higher, for residual of right-hand scar at the tip of distal lateral third finger is granted. 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 Veteran’s scar across the tip of his right-hand, lateral third finger is currently evaluated at a noncompensable rating pursuant to DC 7805. The Veteran contends he is entitled to a compensable rating because his scar is painful. Scars, other than of the head, face, or neck, are evaluated under the provisions of 38 C.F.R. § 4.118, DCs 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. Note 2 indicates that provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. See 38 C.F.R. § 4.118, DC 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. By way of history, the Veteran suffered a laceration of the right-hand, middle finger while operating a circular saw in June 1962 during his military service. The Veteran has been in receipt of a noncompensable disability rating for this scar since June 1965. He submitted the current claim for an increased rating in August 2013. Evidence relevant to the current level of severity of the Veteran’s scar includes a VA scar examination dated August 4, 2014. The VA examiner confirmed that the Veteran’s scar was located on his right upper extremity, on the right hand, at the tip of the distal lateral third finger. The VA examiner also performed a physical examination of the Veteran’s scar and indicated that the scar was linear in nature and measuring approximately two centimeters long. The VA examiner noted that the scar was not unstable, nor painful. During the February 19, 2020 Board hearing, the Veteran testified that his right-hand finger scar was in fact, painful, and had been since his injury in service. The Veteran testified that he “still has a very sensitive finger with a lot of pain” and indicated that his pain is “usually about a six or seven out of 10.” The Veteran also testified that whenever he touches something with his right hand, the finger “feels tingly.” Furthermore, the Veteran stated that the “pain is almost constant, happening most of the time.” 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. See 38 C.F.R. § 3.159(a)(2). 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 disability rating greater than 10 percent is not warranted at any point during the appeal period, as the record does not show a scar that is deep and nonlinear for an area of at least six square inches or superficial and 144 square inches, or that the scar is both painful and unstable, meaning that there is frequent loss of covering of skin over it. 38 C.F.R. § 4.118, DC 7801, 7804. Moreover, there is no evidence that the Veteran’s right-hand finger scar has caused any other impairment. See 38 C.F.R. § 4.118, DC 7805. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maietta, 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.