Citation Nr: A21000171 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 200207-61646 DATE: January 5, 2021 ORDER Entitlement to an initial 20 percent rating, but no higher, for scars, left elbow is granted. FINDING OF FACT Throughout the entire period on appeal, the Veteran’s three elbow scars have been unstable; however, the Veteran’s elbow scars have not resulted in functional impairment, are not painful, and do not affect an area of at least 6 square inches (39 square centimeters). CONCLUSION OF LAW The criteria for entitlement to an initial 20 percent rating for scars, left elbow, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Navy from July 1996 to July 1999. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2020 rating decision that denied granting an initial compensable disability rating for scars, left elbow. The Veteran timely appealed the decision to the Board by submitting a February 2020 Decision Review Request: Board Appeal (Notice of Disagreement) and requested direct review of the evidence considered by the Agency of Original Jurisdiction without a Board hearing. See VA Form 10182, received by VA in February 2020. Entitlement to an initial 20 percent rating, but no higher, for scars, left elbow Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are appropriate for when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Similarly, where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran contends that a compensable rating is warranted for his scars, as they are painful and unstable and associated with underlying soft tissue damage. See VA Form 10182 (Notice of Disagreement), received by VA in February 2020. Under Diagnostic Code 7800, a 10 percent rating is warranted for burn scars of the head, face, or neck; or scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck - when the skin disability has one characteristic of disfigurement. See 38 C.F.R. § 4.118, Diagnostic Code 7800. Under Diagnostic Code 7801, a 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage that affect an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) Id. Higher ratings are available for scars that affect a larger area. Under Diagnostic Code 7802, a maximum 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are not associated with soft tissue damage, that affect an area or areas of 144 square inches (929 sq. cm.) or greater. Id. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent disability rating. 38 C.F.R. § 4.118, Diagnostic Code 7804. A 20 percent disability rating is applicable when there are three or four scars that are unstable or painful. Id. A maximum 30 percent rating is warranted when there are five or more scars that are unstable or painful. Id. Under Diagnostic Code 7805, scars and other effects of scars are evaluated under Diagnostic Codes 7800, 7801, 7802, or 7804. 38 C.F.R. § 4.118, Diagnostic Code 7805. The Board initially notes that Diagnostic Code 7800 is not for application as the scars do not affect the head, face or neck. Further, Diagnostic Codes 7801 and 7802 are not applicable because the evidence does not demonstrate, nor does the Veteran contend that the scars affect an area of at least 6 square inches (39 square centimeters). Therefore, to warrant a compensable rating under Diagnostic Code 7804, the evidence must demonstrate unstable or painful scars. Id., Diagnostic Code 7804, Note (1) (an unstable scar is one where for any reason, there is frequent loss of covering of skin over the scar). The Veteran provided a scars/disfigurement disability benefits questionnaire dated November 4, 2019. The disability benefits questionnaire was completed by the Veteran’s VA primary care provider who has been treating the Veteran for over ten years. The examination report states that the Veteran has a history of left elbow injury in military service that has left three scars that get irritated and inflamed. It also stated that the Veteran has been diagnosed with chronic eczema and that his scar gets ulcerated and raw. The primary care provider noted the Veteran had three superficial non-linear scars on his left elbow, all three of which he found were unstable, with frequent loss of covering the skin over the scar. The Veteran was afforded a VA scars/disfigurement examination in January 2020. The Veteran explained that he had three service-connected scars on his left elbow that were caused by wounds he incurred in-service while rescuing someone from an airplane that had crashed and was on fire. One of the scars was caused by shredded metal that lacerated the back of his left elbow. The two other scars were caused by hot metal that burned his skin; these scars are lateral to his laceration scar. The Veteran reported that he started to get a rash/erythematous skin around his scars that swelled and itched approximately two years after he was service connected for his scars. He explained that it would usually start with his laceration scar, which would develop an “ulceration” and eschar, and the radius of the erythema would spread outward, to involve the two burn scars. He said this occurred on an intermittent basis for many years, but became constant approximately eight months before this examination. The Veteran reported that he was seen by a VA physician and prescribed two topical creams that he uses daily. He stated that using both creams daily for the past 7-8 months has prevented the recurrence of symptoms. He explained that his scars are tender when he has the associated skin condition, but as long as he uses the prescribed topical creams, they are not tender. The examination report notes that the Veteran did not have symptoms on the day of the examination and that none of the Veteran’s scars are painful or unstable, with frequent loss of covering of skin over the scar. VA treatment records throughout 2019 indicate that the Veteran first reported a change in his left elbow scars to his primary care physician in February 2019. The Veteran reported that one of his left elbow scars had become itchy and scaly, and that he had tried over-the-counter creams and moisturizers to treat the condition but that nothing helped. The primary care physician noted a dry scaly rash located on one of the Veteran’s scars that was irritated and appeared to be starting to keloid. The Veteran was prescribed Eucerin cream and Triamcinolone, a topical steroid cream, to treat the keloid irritation on the effected scar. In a note dated November 4, 2019, the primary care physician stated that the Veteran was there so that he may fill out the above-mentioned scars/disfigurement disability benefits questionnaire. He stated that the Veteran’s left elbow scars were repeatedly becoming irritated raw and ulcerated, but were now being treated as needed with topical steroid Triamcinolone cream and Eucerin emollient cream. Upon examination, the primary care physician noted that the Veteran’s scars were not ulcerated or raw, but explained that the Veteran had just completed a treatment cycle with topical steroid Triamcinolone cream. The primary care physician diagnosed the Veteran as having scars with irritation and loss of skin due to eczematous dermatitis superimposed on the scar. Based on the above evidence, and resolving any doubt in favor of the Veteran, the Board finds that an initial 20 percent disability rating is warranted for the Veteran’s left elbow scars. Although the January 2020 examiner noted that none of the Veteran’s three scars were unstable or painful, the November 2019 examination report and the Veteran’s VA treatment records both indicate that the all three scars were unstable. Even though the scars may presently be stable, VA treatment records indicate that if the Veteran were to stop using the steroid cream, the keloid irritation would return, and his scars would become unstable. An initial disability rating in excess of 20 percent is not warranted for the Veteran’s elbow scars. A higher rating under Diagnostic Code 7804 requires five or more scars that are unstable or painful. The Veteran is only noted as having three scars. A higher rating is also possible under Note (2) of Diagnostic Code 7804 which provides for an additional 10 percent for a scar that is both unstable and painful. While the Veteran did complain that his laceration scar was itchy and scaly when he initially sought treatment for it in February 2019, he never described any of his scars as being painful. See CAPRI, received by VA in November 2019. Moreover, both the November 2019 and the January 2020 VA examination reports note that the scars were not painful. Based on the aforementioned evidence, the Board finds that the Veteran’s scars were not painful. Consequently, an initial disability rating in excess of 20 percent is not warranted for the Veteran’s left elbow scars. Accordingly, an initial 20 percent disability rating, but no higher, for the service-connected left elbow scars is granted. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fairlie, 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.