Citation Nr: 21064979 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 17-30 079 DATE: October 22, 2021 ORDER Entitlement to a rating in excess of 10 percent for painful scar, left index finger from October 12, 2020 is denied. Entitlement to a compensable rating for residual scar proximal palmar aspect 1st and 2nd finger, left hand (claimed as left hand index finger and middle finger injury) is denied. FINDINGS OF FACT 1. Prior to June 2021, the Veteran had one scar on the left hand; the scar was not painful, unstable, due to burns, or associated with underlying soft tissue damage. 2. From June 2021, the Veteran has four scars, two scars in the upper left extremity and two scars in the left lower extremity; the Veteran's scar on the left first digit was tender to palpation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for painful scar, left index finger from October 12, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code (DC) 7804. 2. The criteria for entitlement to a compensable rating for residual scar proximal palmar aspect 1st and 2nd finger, left hand (claimed as left hand index finger and middle finger injury) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1986 to July 1996. In May 2021, the Board remanded the Veteran's service connection claims for headaches as well as a left knee disability for additional development. The Board also remanded the Veteran's increased rating claim for his residual scar on the left hand, index, and middle finger to obtain another VA examination. In a July 2021 rating decision, the RO granted the Veteran's service connection claims for a left knee disability and headaches. As these grants are considered the full grant of benefits sought on appeal, the Veteran's service connection claims for headaches as well as a left knee disability are no longer before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993). As to the Veteran's increased rating claim for his residual scar on the left hand, index, and middle finger, the RO granted a 10 percent rating for painful scar in his left finger, effective October 12, 2020. As this assignment is not considered a full grant on appeal, the Veteran's increased rating claim for his residual scar on the left hand, index, and middle finger remains before the Board. Therefore, the issue has since returned to the Board for appellate review. . Increased Rating The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). At the time of an initial rating, consideration of the appropriateness of a staged rating is also required. Fenderson v. West, 12 Vet. App. 119 (1999). Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. Entitlement to a rating in excess of 10 percent for painful scar, left index finger from October 12, 2020 is denied; entitlement to a compensable rating for residual scar proximal palmar aspect 1st and 2nd finger, left hand (claimed as left hand index finger and middle finger injury) is denied. The Veteran is in receipt of a 10 percent rating for his painful scar, left index finger under DC 7804 from October 12, 2020. The Veteran is also in receipt of a noncompensable rating for residual scar proximal palmar aspect 1st and 2nd finger, left hand (claimed as left hand index finger and middle finger injury) under DC 7805. The Board notes that regulations pertaining to skin disabilities were recently amended and new criteria for rating skin disabilities became effective on August 13, 2018. Id. When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. VAOPGCPREC 3- 2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The recently revised skin regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, August 13, 2018. Hence, for the period beginning August 13, 2018, the version more favorable to the veteran will apply. Under the prior regulations, scars were rated as disfigurement of the head, face, or neck (DC 7800), or other scars (DCs 7801, 7802, 7804, or 7805) depending upon the predominant disability. As an initial matter, the Board notes that the Veteran's scars of the hand do not affect the head, face or neck, thus, DC 7800 is not applicable. 38 C.F.R. § 4.118, DC 7800 (2018). The pre-amended DC 7801 provided disability ratings for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear. 38 C.F.R. § 4.118, DC 7801 (2017). In contrast, the amended DC 7801 contemplates burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801 (August 13, 2018). Both the old and new criteria provide that a 10 percent rating is awarded when the area of the scar(s) covers at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). A 20 percent rating is warranted when the area of the scar(s) covers at least 12 square inches (77 square centimeters) but less than 72 square inches (456 square centimeters). A 30 percent rating is warranted when the area of the scar(s) covers at least 72 square inches (456 square centimeters) but less than 144 square inches (929 square centimeters). A 40 percent rating is assigned when the area of the scar(s) covers at least 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, Diagnostic 7801. Note (1) to the pre-amended DC 7801 stated that a deep scar is one associated with underlying soft tissue damage. Prior to August 13, 2018, DC 7802 provided rating criteria for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear. 38 C.F.R. § 4.118, Diagnostic 7802 (2017). The amended version is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802 (August 13, 2018). Both versions state that a 10 percent disability rating is warranted when the area of the scar covers 144 square inches (929 square centimeters) or greater. Under both the old and new rating criteria, DC 7804 provides disability ratings for scars that are unstable or painful. A 10 percent rating for is assigned for one or two such scars. A 20 percent rating is warranted for three to four scars, and a 30 percent disability rating is assigned for five or more scars. Note (1) states 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, an additional 10 percent should be added to the evaluation based on the total number of unstable or painful scars. Note (3) states that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under this DC, when applicable. 38 C.F.R. § 4.118, DC 7804. Under the old rating criteria, DC 7805 provided that other scars (including linear scars) and other effects of scars evaluated under DCs 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under DCs 7800-7804 under an appropriate DC. 38 C.F.R. § 4.118, DC 7805 (2017). The Board notes that this DC is largely unchanged under the new amendments apart from the replacement of the phrase "(including linear scars)" with "and other effects of scars evaluated under DCs 7800, 7801, 7802, or 7804." 38 C.F.R. § 4.118, DC 7805 (August 13, 2018). The Federal Circuit addressed the meaning of "systemic" and "topical" for rating skin disabilities under the regulatory criteria prior to August 31, 2018. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). For these purposes, systemic therapy means treatment pertaining to or affecting the body as a whole, whereas topical therapy means treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied. Id. at 1355. The Federal Circuit acknowledged that a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, but the Court emphasized that this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. Id. Rather, the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the facts of each case. Id. at 1356. Under the revised VA regulations, it is explicitly stated that for the purposes of the skin disability ratings, "systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin." 38 C.F.R. § 4.118(a). Factual Background The Veteran contends that he is entitled to a higher rating for his scars, particularly in his left hand. He also notes that the scars in his left hand forefinger affects his actual range of motion. See February 2020 hearing transcript. The Veteran reported that his hand or finger stiffens in cold temperatures. Id. The Veteran's VA treatment records note that the Veteran has a scar in his left hand. To assess the severity of any present scars, VA examinations were obtained in May 2014, November 2016, October 2020, and June 2021. In the May 2014 VA examination, the examiner noted that the Veteran had two scars in the left upper extremity. Specifically, the Veteran had one scar in the left hand at ulnar aspect of the index finger metacarpal-phalangeal joint; this linear scar measured 1.8 cm. The second scar was located on the pad of the left long finger distal phalange; this linear scar measured 0.8 cm. None of the scars of the trunk or extremities were painful, unstable (with frequent loss of covering of skin over the scar), or due to burns. There were no superficial or deep non-linear scars. None of the scars result in limitation of function. In the November 2016 VA examination for scars, the examiner noted that the Veteran had 1 scar in the left upper extremity, specifically in the proximal lateral 2nd finger. The examiner noted that the linear scar measured 4 cm. None of the scars of the trunk or extremities were painful, unstable (with frequent loss of covering of skin over the scar), or due to burns. There were no superficial or deep non-linear scars. In November 2016, the Veteran also underwent a general VA examination for his hand and fingers. Specifically, the VA examiner noted a laceration in the Veteran's left hand. He did not report flare-ups of the hand, finger, or thumb joints. He did not report having any functional loss or functional impairment of the left hand, finger, or thumb joints. On initial range of motion testing, the Veteran's range of motion for his left hand was noted to be normal. No pain was noted on examination of the left hand. There was no gap noted between the pad of the thumb and the fingers or between the finger and proximal transverse crease of the hand on maximal finger flexion. There was no additional loss of range of motion after observed repetitive use or repeated use over time. Muscle strength testing was normal. There was no evidence of ankylosis. In the October 2020 VA examination, the examiner noted that the Veteran had 1 scar in the proximal palmar aspect 1st and 2nd finger, left hand. The scar measured 4 x 0.1 cm. The approximate total area of the scar is 0.4 cm2. The scar was not painful, unstable (with frequent loss of covering of skin over the scar), or due to burns. The examiner also noted that the scar is well approximated and is healed well. In the June 2021 VA examination, the examiner noted that the Veteran had 2 scars on the left upper extremity, one scar on the left first digit and another scar located on the left second digit. Scar 1 measured 4 x 0.2 cm and, scar 2 measured 1.5 x 0.1 cm. Scar 1 was tender to palpation. The examiner noted that the scar on the left 1st digit is tender to touch. Neither of the scars were unstable or had underlying soft tissue damage. The approximate total area of the two scars in the left upper extremity was 0.95 cm2. The examiner also noted that the Veteran had 2 scars on the left lower extremity, both specifically located on the left knee. Scar 1 measured 0.5 x 0/5 cm, and scar 2 measured 0.5 x 0.5 cm. Neither of the scars on the left knee were tender to palpation, unstable, or had underlying soft tissue damage. The approximate total area of the two scars in the left lower extremity was 0.50 cm2. The examiner noted that the Veteran did not have any scars or disfigurement of the head, face, or neck. None of the scars are unstable. There are no scars due to burns. None of the scars result in limitation of function. Analysis Based on the evidence above, the Board finds that a rating in excess of 10 percent is not warranted under DC 7804 from October 12, 2020, as the evidence does not show that the Veteran has at least three unstable or painful scars, which is what is required for a higher, 20 percent rating under DC 7804. At most, the June 2021 VA examination noted that one of the Veteran's scars was tender to palpation. The Board considered whether separate or higher ratings were appropriate under other ratings for scars, specifically under DCs 7801 7802. However, there is no evidence that the Veteran's scars cover 144 square inches, have caused underlying soft tissue damage, or are deep. Thus, a higher rating under these provisions is not supported. Additionally, a higher rating under DC 7805 is not warranted as there is no indication that the symptoms of the Veteran's scars are not considered in the assigned ratings. The Board acknowledges that the Veteran reported that his scars in his left hand affect his range of motion, particularly during cold weather. However, none of the VA examiners noted that the Veteran's scars in his left hand were unstable and the November 2016 VA examiner also noted normal range of movement on range of motion testing. The evidence shows that he has one scar that is tender, the assigned 10 percent rating compensates this symptom38 C.F.R. § 4.118. Given the above, the Board finds that a rating in excess of 10 percent rating for his painful scar, left index finger under DC 7804 from October 12, 2020 is denied. The Board also finds that a compensable rating for residual scar proximal palmar aspect 1st and 2nd finger, left hand (claimed as left hand index finger and middle finger injury) under DC 7805 is denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. E. Grossman, 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.