Citation Nr: 21062706 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-28 615A DATE: October 12, 2021 ORDER Prior to September 14, 2009, entitlement to a compensable rating for a left breast scar is denied; however, beginning September 14, 2009, a 10 percent rating, but no higher, is granted. FINDING OF FACT 1. Prior to September 14, 2009, the record does not demonstrate that the Veteran's left breast scar was painful and/or unstable or greater than 39 square centimeters in area, or cause limitation of function or motion. 2. Beginning September 14, 2009, the Veteran's left breast scar manifests with symptoms of itching and burning and is painful. CONCLUSION OF LAW 1. Prior to September 14, 2009, the criteria for an initial compensable disability rating for a left breast scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7805. 2. Beginning September 14, 2009, the criteria for a 10 percent rating, but no higher, for a left breast scar have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1992 through April 1996. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for additional development. The appeal has since returned to the Board. Prior to September 14, 2009, entitlement to a compensable rating for a left breast scar is denied; however, beginning September 4, 2009, a 10 percent rating, but no higher, is granted. In a March 2016 rating decision, the Veteran was granted service connection for a left breast scar status-post fibroadenoma excision with a noncompensable disability rating under DC 7805, effective April 11, 2013. In an August 2017 rating decision, the Veteran was granted an earlier effective date of April 30, 1996 for her left breast scar. The Veteran disagrees with the rating assigned. During the course of the appeal, the regulations pertaining to the evaluation of skin disabilities were amended. See 67 Fed. Reg. 49,590 (July 31, 2002) (effective August 30, 2002); 73 Fed. Reg. 54,710 (September 23, 2008) (effective October 23, 2008). Where laws or regulations change while a claim is pending, the version most favorable to the Veteran applies, absent contrary Congressional or Secretarial intent. See Dudnick v. Brown, 10 Vet. App. 79 (1997); Karnas v. Derwinski, 1 Vet. App. at 312-13 (1991). The Board will evaluate the Veteran's left breast scar under the criteria in effect prior to August 30, 2002, then the criteria in effect from August 30, 2002 to October 23, 2008, and then the criteria from October 23, 2008 forward keeping in mind that the revised criteria may not be applied prior to the effective date of the change. The Board notes that the diagnostic criteria for disorders of the skin are found at 38 C.F.R. § 4.118, DCs 7800 to 7805. As the evidence of record indicates that the Veteran's scar is not on her head, face, or neck, and that she does not have any disfigurement of the head, face, or neck, consideration under DC 7800 is not warranted. 38 C.F.R. § 4.118, DC 7800. Under the pre-August 2002 version of Diagnostic Code 7800, a 10 percent rating is warranted for disfigurement of the head, face, or neck when the skin disability is moderately disfiguring. 38 C.F.R. § 4.118 (2001). Under Diagnostic Code 7801, a 10 percent rating is warranted for a third degree burn or scar in an area or areas exceeding 6 square inches (38.7 sq. cm.). Under Diagnostic Code 7802, a 10 percent rating is warranted for a second degree burn scar with an area approximating 1 square foot. Under Diagnostic Code 7803, a 10 percent rating is warranted for a superficial scar, poorly nourished, with repeated ulceration. Under Diagnostic Code 7804, a 10 percent rating is warranted for a superficial scar, tender and painful on objective demonstration. Finally, under Diagnostic Code 7805, a scar can be rated on limitation of function of the affected part. 38 C.F.R. § 4.118 (2001). Under the pre-October 2008 version of Diagnostic Code 7800, a 10 percent rating is warranted for disfigurement of the head, face, or neck when the skin disability has one characteristic of disfigurement. Under Diagnostic Code 7801, a 10 percent rating is warranted for a scar on other than the head, face, or neck, that is deep (associated with underlying soft tissue damage) or that causes limited motion with area or areas exceeding 6 square inches (39 sq. cm.). Under Diagnostic Code 7802, a maximum 10 percent rating is warranted if a scar on other than the head face or neck is superficial (not associated with soft tissue damage) and does not cause limited motion, affecting an area or areas of 144 square inches (929 sq. cm.) or greater. Under Diagnostic Code 7803, a superficial and unstable (involving frequent loss of covering of skin over the scar) scar may be assigned a maximum 10 percent rating. Under Diagnostic Code 7804, a scar that is superficial and painful on examination may be assigned a maximum 10 percent rating. Finally, under Diagnostic Code 7805, scars are rated according to limitation of function of the affected part. See 38 C.F.R. § 4.118 (2008). Under the post-October 2008 version of 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 (2016). 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 deep and nonlinear, at least 39 sq. cm. in area but less than 77 sq. cm. (or between 6 sq. inches and 12 sq. inches). 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 superficial (not associated with soft tissue damage) and nonlinear, affecting an area or areas of 144 square inches (929 sq. cm.) or greater. Id. Under DC 7804, which applies to scars that are unstable or painful, a 10 percent evaluation is warranted for one or two scars that are unstable or painful. A 20 percent evaluation is warranted for three or four scars that are unstable or painful. A maximum 30 percent evaluation is warranted for five or more scars that are unstable or 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, 10 percent should be added 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, and 7805 may also receive an evaluation under this diagnostic code, when applicable. 38 C.F.R. § 4.118, DC 7804. DC 7805 applies to other scars (including linear scars) and other effects of scars evaluated under DC 7800, 7801, 7802 and 7804. Any disabling effects not considered in a rating provided under DC 7800 through 7804 should be evaluated under an appropriate diagnostic code. Upon review, the evidence of record does not warrant an initial disability rating greater than 10 percent for the left knee scars under all three sets of skin criteria as discussed further below. 38 C.F.R. § 4.7. Additionally, under all three sets of skin criteria, the Veteran does not contend, and the objective evidence does not demonstrate disfigurement of the head, face, or neck when the skin disability is moderately disfiguring; burn scars, scars due to other causes, or disfigurement on the head, face, or neck with one characteristic of disfigurement (Diagnostic Code 7800). Compare 38 C.F.R. § 4.118 (2016) with 38 C.F.R. § 4.118 (2008) with 38 C.F.R. § 4.118 (2001). Turning to the available evidence of record, service treatment records in March 1972 documented a post-surgical left breast wound that was healing well. Thereafter, the record does not document complaints or objective findings concerning the Veteran's left breast scar prior to September 2009. Specifically, the record is devoid of any evidence of documenting nonlinear, unstable, or painful scars on her left breast prior to September 2009. In September 2009, an adjudication memorandum documented that the Veteran had a left breast scar that is tender when touched. The scar was also described as disfiguring. The left breast scar measured roughly 2 inches. In an April 2010 VA examination, a scar on the Veteran's left breast was not visible and she was unable to point to a scar. This exam noted that the Veteran was having exquisite pain in both breasts at the time of the examination. In June 2015 VA examination, it was noted that the Veteran's left breast scar was not painful or unstable. The scar also did not have a total area greater than 39 square centimeters. At a November 2020 VA examination, the Veteran reported that her left breast scar itches and rubs against her bra. She denied that the scar was unstable. On examination, it was documented that she had one left breast scar that was painful with itching and burning. The scar measured 5 centimeters by .3 centimeters. The scar was without underlying tissue damage and had an approximate total area of 1.5 centimeters. There are no treatment notes showing further limitations or a more severe presentation of the Veteran's left breast scar than represented above. In light of the foregoing, the Board finds that the Veteran's left breast scar warrants a noncompensable under DC 7805, prior to September 14, 2009. Under the pre-August 2002 criteria, the probative evidence of record does not demonstrate: a third degree burn or scar in an area or areas exceeding 6 square inches (38.7 sq. cm.) (Diagnostic Code 7801); a second degree burn scar with an area approximating 1 square foot (Diagnostic Code 7802); a superficial scar, poorly nourished, with repeated ulceration (Diagnostic Code 7803); or a scar with limitation of function of the affected part (Diagnostic Code 7805). Under the pre-October 2008 criteria, the probative evidence of record does not demonstrate: a deep scar or one that causes limited motion exceeding 39 square cm. (Diagnostic Code 7801); a superficial scar 929 sq. cm. or greater in area (Diagnostic Code 7802); a superficial scar that is unstable (involving frequent loss of covering of skin over the scar) (Diagnostic Code 7803); or, scars causing limitation of function of an affected part (Diagnostic Code 7805). Under the post-October 2008 criteria, the probative evidence of record does not demonstrate burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear, at least 39 sq. cm. in area but less than 77 sq. cm. (Diagnostic Code 7801); burn scars or scars due to other causes, not of the head, face, or neck, that are superficial (not associated with soft tissue damage) and nonlinear, affecting an area or areas of 144 square inches (929 sq. cm.) or greater (Diagnostic Code 7802); or, that a separate rating is warranted for any disabling effects not considered under Diagnostic Codes 7800-7804 (Diagnostic Code 7805). The Veteran's left breast scar is stable, is not deep or exceed 39 square cms, or are burn scars or exceeds 6 square inches, and does not cause limitation of function or motion. Thus, under all three rating criteria and applicable diagnostic codes, a compensable rating is not warranted for the Veteran's left breast scar prior to September 14, 2009. Beginning September 14, 2009, the record demonstrates that the Veteran complained of a left breast scar that was tender to touch. The Veteran later described her left breast scar as having itching and burning. Under the post-October 2008 criteria, a 10 percent evaluation is warranted when scars are unstable or painful under DC 7804. Resolving all doubt in favor of the Veteran, a 10 percent rating is warranted under DC 7804 for a painful left breast scar beginning September 14, 2009. However, the record does not demonstrate that she has three or more left breast scars that are unstable or painful, nor has there been a showing that her existing left breast scar is both unstable and painful. As such, the Board finds that a disability rating in excess of 10 percent, beginning September 14, 2009, is not warranted. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.B. Mmeje, 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.