Citation Nr: 20036740 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 19-08 724 DATE: May 28, 2020 ORDER Entitlement to a compensable rating for the left eyebrow scar (“scar”) is denied. FINDING OF FACT The Veteran’s scar was not shown to have disfigurement, underlying tissue loss, gross distortion or asymmetry; the scar is not painful or unstable; there is no limitation of function. CONCLUSION OF LAW The criteria for a compensable rating for the Veteran’s scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.118, Diagnostic Code (DC) 7800. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1994 to August 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board acknowledges the August 2018 notice of disagreement (NOD), where the Veteran argued he is entitled to an earlier effective date for the service connection grant of the left eyebrow claim. Although, the Veteran has properly asserted disagreement with the effective date in a February 2019 NOD and a February 2020 statement of the case has addressed the claim, the claim is not ripe for appeal. It has not been certified to the Board and the Veteran has requested a Board hearing in the April 2020 Form 9. Therefore, the Board will not address an earlier effective date for this claim at this time. The Veteran contends his scar warrants a compensable rating because he has a disfigurement. For the reasons discussed below, the Board finds preponderance of the evidence is against a compensable rating. 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. 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. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Turning to the procedural evidence, a February 2018 rating decision granted service connection for the left eyebrow scar with a noncompensable evaluation, effective December 21, 2017. The Veteran’s scar has been assigned a noncompensable rating under Diagnostic Code (DC) 7800. Recently, VA amended the criteria for rating the skin. See Schedule for Rating Disabilities; Skin, 83 Fed. Reg. 32592 (July 13, 2018). The amendments were made effective as of August 13, 2018, and apply to claims, such as the Veteran’s, that were pending before VA as of that date, with the provision that the more favorable of the old and new criteria are to be applied. The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. In this case, the changes to the relevant DC pertain only to the title of the scar codes and the notes following the codes. The amendments to DCs 7800 through 7805 do not affect the analysis in the current case. Prior to August 13, 2018, DC 7800 contemplates scars of the head, face, or neck. 38 C.F.R. § 4.118, DC 7800. Under DC 7800, for scars of the head, face, or neck, a 10 percent rating is warranted for one characteristic of disfigurement. A 30 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A 50 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. An 80 percent rating, the highest rating available under DC 7800, is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. Note (1) following DC 7800 identifies 8 characteristics of disfigurement, for the purposes of evaluation under § 4.118: (1) scar 5 or more inches (13 or more cm.) in length; (2) scar at least one-quarter inch (0.6 cm.) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). 38 C.F.R. § 4.118, DC 7800. DC 7801 provides ratings for burn or other scars (not on the head, face, or neck) that are deep and nonlinear. The Veteran’s scar is located on his face so a compensable rating under DC 7801 is not applicable. DC 7802 provides a maximum 10 percent rating for a burn or other scars that are superficial and nonlinear involving an area of 144 square inches (929 sq. cm) or greater. As explained below, the March 2018 VA examination indicated the Veteran’s scar only measures 6.0 cm in length, 0.5 cm in width. As such, a compensable rating is not warranted under DC 7802. DC 7804 provides a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a 30 percent rating for five or more scars that are unstable of painful. 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, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under DC 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804, when applicable. 38 C.F.R. § 4.118, DC 7804. 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 DC 7800, 7801, 7802, and 7804, under an appropriate diagnostic code. 38 C.F.R. § 4.118. In every instance where the schedule does not provide a 0 percent rating for a diagnostic code, a 0 percent rating will be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. Under the amended criteria which became effective on August 13, 2018, DC 7800 and 7804 were not changed. 38 C.F.R. § 4.118. DC 7801 and DC 7802 refers to scars not of the head, face, or neck that are associated with underlying soft tissue damage. The Veteran’s scar is located on his face so a compensable rating under DC 7801 and 7802 is not applicable. DC 7805 was amended in that the parentheses which noted that linear scars were included was removed. The title now provides for scars, other and other effects of scars evaluated under DC 7800, 7801, 7802, and 7804. The rating criteria remained the same. 38 C.F.R. § 4.118, DC 7805. The relevant medical evidence of record consist of VA examinations. The February 2018 traumatic brain injury (TBI) VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. The examiner noted the scar was located over the left eyebrow measuring 4.8 centimeters in length and 0.2 centimeters in width. The scar was not considered painful or unstable. A March 2018 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. The one and only scar is located on the left eyebrow. It is neither painful nor unstable. It measures 6.0 cm in length, 0.5 cm in width. There was no elevation, depression, adherence to underlying tissue or missing underlying soft tissue. The scar is neither hyperpigmented nor hypopigmented. The scar’s skin is soft and flexible, and the texture is normal. There was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. The examiner found there is no limitation of function nor were there any pertinent physical findings, complications, conditions, signs and/or symptoms associated with the scar. Based on a review of the pertinent evidence, the Board finds that an increased compensable rating for the Veteran’s scar is not warranted. In this regard, the Board concludes that, for the entire appeal period, the Veteran’s scar did not demonstrate a characteristic of disfigurement, nor was there palpable tissue loss and either gross distortion or asymmetry. The March 2018 VA examination revealed the disfigurements as listed in Note (1) of DC 7800 were not present. Based on both VA examinations the scar, at most, measured 0.5 cm in width and was not elevated or depressed on palpation. The March 2018 examiner found the scar was not adherent to underlying tissue nor was there any hypo-or hyper-pigmented. There was no underlying soft tissue damage. The skin was not indurated and inflexible. Additionally, the examiner specifically found there was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. As such, a compensable rating under DC 7800 is not warranted. The Board has also considered the applicability of other potentially applicable diagnostic criteria for rating the Veteran’s scar but finds that no higher rating is assignable under any other diagnostic code. DC 7804 contemplates scars that are unstable or painful. The February 2018 and March 2018 revealed that the scar was neither painful nor unstable. There is no medical or lay evidence indicating otherwise. Thus, Diagnostic Code 7804 is inappropriate. DC 7805 contemplates scars with other disabling effects. The March 2018 VA examiner specifically found no limitation of function associated with the scar. Also, there were no pertinent physical findings, complications, conditions, signs and/or symptoms associated with the scar. As such, a compensable rating is not warranted under DC 7805. Therefore, based on the foregoing, the Board finds that the Veteran is not entitled to a compensable rating for his left eyebrow scar. As the preponderance of the evidence is against the Veteran’s claim, the doctrine of reasonable doubt does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jackman, 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.