Citation Nr: 21000215 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 18-03 302 DATE: January 4, 2021 ORDER A 50 percent rating for residual scars, status post excision of thyroglossal cyst located at the submental chin/anterior superior portion of the neck and an additional scar located at the anterior superior area below the cricocartilage, is granted for the entire appeal period. A 20 percent rating for painful scars status post excision of thyroglossal cyst located at the submental chin/anterior superior portion of the neck and an additional scar located at the anterior superior area below the cricocartilage as well as the left knee, is granted for the entire appeal period. A rating in excess of 10 percent for cervical spine motion loss due to residual scars, status post excision of thyroglossal cyst is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s residual scars, status post excision of thyroglossal cyst located at the submental china/anterior superior and the anterior superior area below the cricocartilage, has been manifested by visible/palpable tissue loss with 5 characteristics of disfigurement. 2. For the entire appeal period, the Veteran has had 3 painful scars, which are not unstable. 3. For the entire appeal period, the Veteran has manifested noncompensable swallowing difficulty and social embarrassment related to the residual scars, status post excision of thyroglossal cyst. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 50 percent initial rating for residual scars, status post excision of thyroglossal cyst located at the submental china/anterior superior and the anterior superior area below the cricocartilage, have been met for the entire appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code (DC) 7800. 2. The criteria for entitlement to a 20 percent rating for painful scars status post excision of thyroglossal cyst located at the located at the submental china/anterior superior and the anterior superior area below the cricocartilage as well as the left knee have been met for the entire appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7804. 3. The criteria for rating in excess of 10 percent for cervical spine motion loss due to residual scars, status post excision of thyroglossal cyst have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7805-5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1960 to November 1964. This appeal comes before the Board of Veterans’ Appeals (Board) from a November 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Boston, Massachusetts (hereinafter Agency of Original Jurisdiction (AOJ)). In October 2018, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In February 2019, the Board remanded the appeal to the AOJ for further development. Increased Ratings The Veteran seeks increased rating for residual scars, status post excision of thyroglossal cyst. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s residual scar, status post excision of thyroglossal cyst is rated under DC 7800, for burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, the diagnostic codes for evaluating scar disabilities were not changed. See 83 Fed. Reg. 32592 (July 13, 2018). Under DC 7800, one characteristic of disfigurement warrants a 10 percent rating. A scar with 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 warrants a 30 percent rating. A scar with 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 warrants a 50 percent rating. A scar with visible or palpable tissue loss and either gross distortion 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 warrants an 80 percent rating. 38 C.F.R. § 4.118. Note 1 to DC 7800 list the eight characteristics of disfigurement: a scar 5 or more inches in length; a scar at least one-quarter inch wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches; skin texture abnormal in an area exceeding six square inches; underlying soft tissue missing in an area exceeding six square inches; and, skin indurated and inflexible in an area exceeding six square inches. Id. Note (3) specifies that unretouched photographs should be taken into consideration. Note (4) instructs to separately evaluate disabling effects other than disfigurement that are associated with individual scar(s) of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, under the appropriate diagnostic code(s) and apply § 4.25 to combine the evaluation(s) with the evaluation assigned under this diagnostic code. Note (5) specifically instructs that the characteristic(s) of disfigurement may be caused by one scar or by multiple scars; the characteristic(s) required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. DC 7804 states in relevant part that: One or two scars that are unstable or painful warrant a 10 percent evaluation. Three or four scars that are unstable or painful warrant a 20 percent evaluation. Note (1) to the diagnostic code states that “An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.” Note (2) to the diagnostic code states 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 diagnostic codes 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 allows for the evaluation of any disabling effects not considered in a rating provided under DCs 7800-04 under an appropriate diagnostic code. The Board initially observes that the Veteran has two residual scars located on his chin which require a more explicit explanation as to location. Thus, the Board has revised the issue listed on the title page for clarity. Furthermore, the AOJ has assigned staged ratings purportedly representing an increased severity of symptoms during the appeal period. A review of the record does not reflect any particular evidence of an increased severity of symptoms but, rather, different description of characteristics by different examiners. The Board will interpret these different descriptions to the extent that it is most beneficial to the Veteran. See generally 38 C.F.R. § 4.2. The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a higher initial rating for residual scars, status post excision of thyroglossal cyst located at the submental china/anterior superior and the anterior superior area below the cricocartilage. 2. Entitlement to a higher rating for painful scars status post excision of thyroglossal cyst located at the submental chin/anterior superior portion of the neck and an additional scar located at the anterior superior area below the cricocartilage as well as the left knee. 3. Entitlement to a rating in excess of 10 percent for cervical spine motion loss due to residual scars, status post excision of thyroglossal cyst. The Board has reviewed three separate VA examination reports dated in October 2017, February 2018 and November 2019. The clinic records associated with the claims folder offer no additional findings. As mentioned above, the descriptions by these examiners have varied as to the scarring characteristics displayed by both scars and the Board must interpret these findings into a consistent disability picture. As noted in Note (5) to DC 7800, the scarring characteristics for both scars of the chin may be combined when considering characteristics of disfigurement. The combined VA examinations reflect the following findings: a) post excision of thyroglossal cyst scar located at the submental china/anterior superior region of the neck • Length: 2 cm, (November 2017 VA examination), 2.5 cm (February 2018 VA examination), (November 2017 VA examination), and 7cm (November 2019 VA examination), ; • Width: .05 cm (November 2017 VA examination and February 2018 VA examination), and 1 cm (November 2019 VA examination); • Surface contour elevated or depressed: yes (November 2017 VA examination, February 2018 and November 2019 VA examinations); • Adherent to tissue: yes (November 2017 VA examination, February 2018 and November 2019 VA examinations); • Hypo or hyper-pigmented: no (November 2017 VA examination), and yes (November 2019 VA examination) • Abnormal texture (irregular, atrophic, shiny, scaly, etc.) yes (November 2019 VA examination): • Underlying soft tissue damage: yes (November 2019 VA examination) • Skin indurated and inflexible: no (November 2017 VA examination), and yes (February 2018 VA examination). b) post excision of thyroglossal cyst scar located the anterior superior area below the cricocartilage: • Length: 10 cm. (November 2017 and February 2018 VA examinations), and 7.5 cm (November 2019 VA examination); • Width: 0.5 cm (November 2017 VA examination), .1 cm (February 2018 VA examination), and 0.2 cm. (November 2019 VA examination); • Surface contour elevated or depressed: no (November 2017 VA examination and February 2018 VA examinations), yes (November 2019 VA examination); • Adherent to tissue: no (November 2017, February 2018 and November 2019 VA examinations); • Hypo or hyper-pigmented: no (November 2017 VA examination and February 2018 VA examinations), and yes (November 2019 VA examination); • Abnormal texture (irregular, atrophic, shiny, scaly, etc.) yes (November 2019 VA examination); • Underlying soft tissue damage: no (November 2019 VA examination); • Skin indurated and inflexible: no (November 2017 and February 2018 VA examinations). The Veteran’s combined characteristics of the scars has been described as 1) abnormal surface contour and 2) adhesion to underlying tissue which only need to be present to satisfy the criteria for disfigurement. There are also findings of hyperpigmentation, abnormal texture, underlying soft tissue damage and inflexibility which each require affecting an area exceeding six square inches (39 sq. cm) to satisfy the criteria for disfigurement. The October 2017 VA examination measured the total area with hypopigmented areas, abnormal texture and missing underlying soft tissue as approximately 49 cm. squared. Thus, the Veteran demonstrates 5 total characteristics of disfigurement - as 1) abnormal surface contour and 2) adhesion to underlying tissue, 3) hyperpigmentation affecting an area exceeding six square inches (39 sq. cm), 4) abnormal texture affecting an area exceeding six square inches (39 sq. cm) and 5) underlying soft tissue damage affecting an area exceeding six square inches (39 sq. cm). Overall, the visible/palpable tissue loss of the chin combined with the 5 characteristics of disfigurement has resulted in the 50 percent rating assigned effective November 1, 2019. As noted above, the Board finds no increased severity of symptoms during the appeal period but rather different descriptive terms used by VA examiners. As such, the Board finds that the criteria for a 50 percent rating have been met for the entire appeal period. The Board finds no basis for a higher rating under DC 7800. The Veteran has visible tissue loss, but the next higher rating additionally requires gross distortion or asymmetry of at least 3 or more features or paired sets of features (nose, chin, forehead, eyes, auricles, cheeks, lips). The Veteran’s scars are limited to his chin, and the unretouched photographs do not support such a finding. Another alternative is six or more characteristics of disfigurement. Here, the Veteran does manifest inflexibility of the scar located at the submental china/anterior superior region of the neck, but he does not manifest this feature with the other scar. As such, the total area affected by this feature of disability does not meet or exceeding six square inches (39 sq. cm). The Board notes that the Veteran also manifests 3 painful scars – 2 from the excision of thyroglossal cyst and another involving the left knee. The AOJ has appropriate assigned a 20 percent rating under DC 7804. However, the AOJ assigned an effective date of November 1, 2019 and, notably, the November 2019 examination was prompted in part by the Veteran’s prior report of a painful left knee scar. Similar to the above, the Board finds no evidence of any actual increased severity of the left knee scar during the appeal period. As such, a uniform 20 percent rating is warranted for the entire appeal period. The Board next notes that the AOJ has appropriately rated the Veteran’s painful cervical spine motion as 10 percent disabling under DC 7800-5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or the combined range of motion of the cervical spine not greater than 170 degrees. The November 2019 VA examination measured cervical spine motion as 45 degrees of forward flexion with a combined motion of 205 degrees. This falls well short of the criteria for a 20 percent rating, and there is no lay or medical evidence that the scar disability results in flares of cervical spine disability or other features such as muscle spasm. As such, the 10 percent rating assigned is appropriate. The Veteran also experiences difficulty swallowing due to his neck scar. The Board has considered this symptom as analogous to esophageal stricture which provides a 30 percent rating for moderate disability and a higher 50 percent rating for severe disability with liquid passage only permitted. See 38 C.F.R. § 4.114, DC 7203. The Veteran describes some instances of choking, but generally describes having to be careful when swallowing. The Board finds that the Veteran’s description does not meet, or more nearly approximate, the criteria for moderate esophageal stricture. The Board has further reported social embarrassment but there is no formal diagnosis of any acquired psychiatric disorder related to the scar disability. As such, compensation is not available. See Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020); Long v. Wilkie, No 16-1537 (Dec. 30, 2020). T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.