Citation Nr: 21066966
Decision Date: 11/03/21	Archive Date: 11/03/21

DOCKET NO. 17-45 417
DATE: November 3, 2021

ORDER

Entitlement to a disability rating of 20 percent, though no higher, prior to June 16, 2021 for cervical spondylosis with right upper extremity paresthesias is granted.

Entitlement to a disability rating in excess of 20 percent from June 16, 2021 for cervical spondylosis with right upper extremity paresthesias is denied.

Entitlement to an initial disability rating of 50 percent, though no higher, from September 6, 2016 for right arm radiculopathy of the middle radicular group is granted.

Entitlement to a disability rating of 10 percent, though no higher, prior to June 16, 2021 for residuals of status post excision right axillary hydradenitis suppurative of the right arm is granted.

Entitlement to a disability rating in excess of 10 percent from June 16, 2021 for residuals of status post excision right axillary hydradenitis suppurative of the right arm is denied.

FINDINGS OF FACT

1. Throughout the duration of the appeal, the probative evidence of record demonstrates that the Veteran's cervical spondylosis with right upper extremity paresthesias, at worst, has been productive of pain and limitation of flexion to 40 degrees, including with repetitive motion, repetitive use over time and flare ups, and guarding severe enough to result in an abnormal gait or abnormal spinal contour; there have been no findings of forward flexion of the cervical spine to 15 degrees or less; incapacitating episodes or ankylosis, favorable or unfavorable, of the cervical spine, thoracolumbar spine or entire spine.

2. Throughout the duration of the appeal, the probative evidence of record indicates the Veteran's right arm radiculopathy of the middle radicular group, at worst, was productive of severe incomplete paralysis of the middle radicular group. 

3. Throughout the duration of the appeal, the probative evidence of record demonstrates that the Veteran's residuals of status post excision right axillary hydradenitis suppurative of the right arm have been productive of, at worst, one linear scar on the right arm which measured 10 centimeters (cm) by one cm and was painful; the scar is not of the head, face or neck, does not comprise a total area of 39 square centimeters or greater, is not deep or caused limited motion, had no underlying tissue damage and was not unstable.

CONCLUSIONS OF LAW

1. The criteria for a disability rating of 20 percent, though no higher, prior to June 16, 2021 for cervical spondylosis with right upper extremity paresthesias have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.71a, Diagnostic Code (DC) 5242.

2. The criteria for a disability rating in excess of 20 percent from June 16, 2021 for cervical spondylosis with right upper extremity paresthesias have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.71a, DC 5242.

3. The criteria for an initial disability rating of 50 percent, though no higher, from September 6, 2016 for right arm radiculopathy of the middle radicular group have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8511. 

4. The criteria for a disability rating of 10 percent, though no higher, prior to June 16, 2021 for residuals of status post excision right axillary hydradenitis suppurative of the right arm have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, DCs 7804, 7819.

5. The criteria for a disability rating in excess of 10 percent from June 16, 2021 for residuals of status post excision right axillary hydradenitis suppurative of the right arm have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, DC 7804, 7819.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1984 to October 1987.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge of the Board (video conference hearing) in September 2020. A transcript of that hearing has been associated with the claims file. 

In a March 2021 decision, the Board granted service connection for a back disability and awarded a partial increase for the Veteran's cervical spine disability. The Board also remanded the issues of entitlement to increased ratings for a cervical spine disability in excess of 10 percent, and a compensable rating for residuals of status post excision right axillary hydradenitis suppurative of the right arm for additional development.

In a July 2021 rating decision, the RO awarded partial increased ratings for the cervical spine disability and residuals of status post excision right axillary hydradenitis suppurative of the right arm. At that time, the RO also awarded a separate disability rating for radiculopathy of the right arm, as due to the cervical spine disability. 

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 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.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 

A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different "staged" ratings may be warranted for different time periods. Where the question for consideration is the propriety of the initial evaluation assigned after the granting of service connection, separate ratings may also be assigned for separate periods of time based on facts found, i.e. "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 

When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2018); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). 

The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. Pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Mitchell, 25 Vet. App. 32. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See also Spencer v. West, 13 Vet. App. 376, 382 (2000) and Johnston v. Brown, 10 Vet. App. 80, 85 (1997).

In order to be adequate, VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). 

The most recent June 2021 VA examination of the cervical spine is responsive to the guidance provided in Correia and Sharp. In this case, the June 2021 VA examiner who examined the Veteran's cervical spine documented whether there was pain on movement in active and passive ranges of motion as well as pain in weight-bearing and in non-weightbearing positions in the back. The Board similarly finds Sharp compliance, in that the VA examiner noted the Veteran's flare ups of the cervical spine and estimated the limitation of motion with flare ups, repetitive motion and repeated use over time. As the June 2021 VA examination addressed flare ups, weight bearing, non-weight-bearing, and active and passive motion, a remand would be unnecessary. 

Finally, the Board observes that changes were made to several musculoskeletal rating codes in 38 C.F.R. § 4.71, effective February 7, 2021. As there were no substantive changes to DC 5237 or the General Rating Formula for Diseases and Injuries of the Spine, the Board is able to proceed with a decision on these issues. 

1. Cervical Spondylosis with Right Upper Extremity Paresthesias

The Veteran's cervical spine disability is rated under 38 C.F.R. § 4.71a, DC 5237. 

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (in other words under DCs 5235 to 5242, unless evaluated instead under DC 5243, the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes). 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease:  

A 10 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 

A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 

A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. 

A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.

A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.

A 100 percent rating is warranted for unfavorable ankylosis of the entire spine.

The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate DC. 38 C.F.R. § 4.71a, DCs 5235-5243. 

Note (2) provides that, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See also 38 C.F.R. § 4.71a, Plate V.

Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. 

Note (4) provides that the rater is to round each range of motion measurement to the nearest five degrees. 

Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the  following: difficulty walking because of a limited line of  vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal  margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Note (6) provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.

Under DC 5243, intervertebral disc syndrome (IVDS) or disc disease may be rated under the General Rating Formula for Diseases and Injuries of the Spine, which includes combining separate evaluations of the chronic orthopedic and neurologic manifestations, or under the Formula for Rating IVDS Based on Incapacitating Episodes, which are rated on the total duration of incapacitating episodes over the past 12 months, whichever results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the Formula for Rating IVDS Based on Incapacitating Episodes, if there are incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months, a 10 percent rating is warranted. If there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent rating is warranted. If there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is warranted. If there are incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent rating is warranted. 38 C.F.R. § 4.71a. 

Note (1) in DC 5243 defines an incapacitating episode as a period of acute signs and symptoms requiring bed rest prescribed by a physician and treatment by a physician. Supplementary information in the published final regulations states that treatment by a physician would not require a visit to a physician's office or hospital but would include telephone consultation with a physician. If there are no records of the need for bed rest and treatment, by regulation, there are no incapacitating episodes. Id.

Throughout the duration of the appeal, the probative evidence of record, including VA medical records and December 2016 and June 2021 VA examinations, demonstrates that the Veteran's cervical spondylosis with right upper extremity paresthesias, at worst, has been productive of pain and limitation of flexion to 40 degrees, including with repetitive motion, repetitive use over time and flare ups, and guarding severe enough to result in an abnormal gait or abnormal spinal contour. This evidence also demonstrates there have been no findings of forward flexion of the cervical spine to 15 degrees or less; incapacitating episodes or ankylosis, favorable or unfavorable, of the cervical spine, thoracolumbar spine or entire spine. 

As the most disabling findings were recorded in the June 2021 VA examination and there was no VA examination provided since December 2016, three months after the Veteran's claim for an increased rating, the Board observes that the findings in the June 2021 VA examination include the severity of Veteran's cervical spine disability for the period prior to this examination as well. Therefore, the cervical spondylosis with right upper extremity paresthesias more nearly approximates the criteria for a higher 20 percent disability rating for the period prior to June 16, 2021 and more nearly approximates the criteria for a 20 percent disability rating currently assigned from June 16, 2021, under DC 5237. 38 C.F.R. § 4.71a. 

While pain and limitation of function were noted throughout the duration of the appeal, there have been no findings these limitations were akin to 15 degrees flexion or favorable or unfavorable ankylosis of the cervical, thoracolumbar or entire spine. In fact, the July 2021 VA examiner considered the Veteran's additional limitation of function and pain with flare ups, repetitive motion and repeated use over time when he estimated the additional limitations of flexion of the cervical spine to 40 degrees. Thus, in considering the complaints and findings of pain in the cervical spine and complaints and findings of pain and additional functional loss in conjunction with 38 C.F.R. § 4.40, 4.45, 4.59, consistent with the decision in DeLuca v. Brown, 8 Vet. App. 202 (1995), the Board finds the evidence supports no more than a 20 percent disability rating for the cervical spine disability throughout the duration of the appeal period. See Voyles v. Brown, 5 Vet. App. 451, 454 (1993); Johnston v. Brown, 10 Vet. App. 80, 85 (1997); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 

The Board has considered whether separate ratings are warranted based on neurological manifestations of the cervical spine disability; however, aside from the separate rating awarded for radiculopathy of the right upper extremity addressed below, no other neurological manifestations have been demonstrated by the objective findings of record. 

Accordingly, the Veteran's cervical spondylosis with right upper extremity paresthesias warrants a disability rating of 20 percent, though no higher, prior to June 16, 2021 and does not warrant a disability in excess of 20 percent at any time throughout the duration of the appeal under DC 5237. 38 C.F.R. §§ 4.3, 4.7, 4.71a; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

2. Right Arm Radiculopathy of the Middle Radicular Group

The Veteran's radiculopathy of the middle radicular group in the right upper extremity is rated under DC 8511 for the middle radicular group. The evidence reflects that the Veteran is right-handed; accordingly, his right upper extremity is his major (dominant) extremity and his left upper extremity is his minor (non-dominant) extremity. See June 2021 VA cervical spine examination. For the major (dominant) extremity:  a 20 percent disability rating is warranted for mild incomplete paralysis; a 40 percent disability rating is warranted for moderate incomplete paralysis; and a 50 percent disability rating is warranted for severe incomplete paralysis. A 70 percent disability rating is warranted for complete paralysis of the middle radicular group, with the following: adduction, abduction and rotation of arm, flexion of elbow, and extension of wrist lost or severely affected. 38 C.F.R. § 4.124a, DC 8511.

The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a.

These descriptive words "mild," "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. 

Throughout the duration of the appeal, the probative evidence of record, including VA medical records and December 2016 and June 2021 VA examinations, demonstrates that the Veteran's radiculopathy of the middle radicular group, at worst, was productive of severe incomplete paralysis of the middle radicular group. The June 2021 VA examination of the cervical spine found symptoms of radiculopathy were present, including severe intermittent pain in the right upper extremity as well as moderate paresthesias and dysesthesias in the right upper extremity. Although the July 2021 rating decision found the right arm radiculopathy rating was effective June 16, 2021, the date of the June 2021 VA examination, the Board observes that neurological symptoms of the right arm were present prior to that time. In this regard, the December 2016 VA examination of the cervical spine reflects the Veteran reported having right arm paresthesias, and the VA examiner found the Veteran had degenerative cervical spondylosis along with right upper extremity paresthesias consistent with radicular etiology. 

As the most disabling findings were recorded in the June 2021 VA examination and there was no VA examination provided since December 2016, three months after the Veteran's claim for an increased rating, the Board observes that the findings in the June 2021 VA examination include the severity of the Veteran's right arm radiculopathy for the period prior to this examination as well. Accordingly, the right arm radiculopathy of the middle radicular group more nearly approximates the criteria for a higher 50 percent disability rating throughout the period of the appeal, from September 6, 2016. Id.

The probative evidence of record is absent of any findings of complete paralysis of the right arm so as to warrant a disability rating in excess of 50 percent under DC 8511 at any time throughout the duration of the appeal. 38 C.F.R. § 4.124a. 

Thus, the probative evidence of record establishes that the right arm radiculopathy of the middle radicular group warrants an initial disability rating of 50 percent, though no higher, from September 6, 2016 under DC 8511. 38 C.F.R. §§ 4.3, 4.7, 4.124a; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

3. Residuals of Status Post Excision Right Axillary Hydradenitis Suppurative of the Right Arm

The Veteran's residuals of status post excision right axillary hydradenitis suppurative of the right arm is rated under DC 7819-7804. DC 7819 provides ratings for benign skin neoplasms which are to be rated disfigurement of the head, face, or neck (DC 7800), scars (DC's 7801, 7802, 7803, 7804, or 7805), or impairment of function. In this case, the RO rated this disability as a scar under DC 7804. 38 C.F.R. § 4.118. 

Scars are rated under 38 C.F.R. § 4.118, DCs 7800 to 7805. The regulations pertaining to rating skin disabilities were revised, effective August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. The Board also observes that regulatory scar changes were made in 2012, but these changes involved only a correction to the applicability date of the 2008 regulations and did not involve any substantive changes. 38 C.F.R. § 4.118.

Under the scar regulations in effect prior to August 13, 2018, DC 7801 provided ratings for scars, other than the head, face, or neck, that were deep or that caused limited motion. Scars that were deep or that caused limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) were rated as 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) were rated as 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) were rated as 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq.cm.) were rated as 40 percent disabling. Note (1) to DC 7801 provided that a deep scar was one associated with underlying soft tissue damage. Id. 

Under the scar regulations in effect prior to August 13, 2018, DC 7802 provided ratings for scars, other than the head, face, or neck, that were superficial or that did not cause limited motion. Superficial scars that did not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, were rated as 10 percent disabling. Note (1) to DC 7802 provided that a superficial scar was one not associated with underlying soft tissue damage. Id.

Under the scar regulations in effect prior to August 13, 2018, DC 7804 provided that one or two scars that are unstable or painful warrant a 10 percent rating; three or four scars that are unstable or painful warrant a 20 percent rating; five or more scars that are unstable or painful warrant a 30 percent rating. If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an additional evaluation under this Diagnostic Code, when applicable. Id. 

Under the scar regulations in effect prior to August 13, 2018, DC 7805 provided 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 DCs 7800 to 7804 under an appropriate DC. Id.

Under the scar regulations in effect since August 13, 2018, DC 7801 provides ratings for scars, other than the head, face, or neck, that are associated with underlying soft tissue damage. Scars that are associated with underlying soft tissue damage in an area or areas exceeding 6 square inches (39 sq. cm.) are rated as 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) are rated as 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) are rated as 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq.cm.) are rated as 40 percent disabling. 38 C.F.R. § 4.118 (2019). 

Under the scar regulations in effect since August 13, 2018, DC 7802 provides ratings for scars, other than the head, face, or neck, that are not associated with underlying soft tissue damage. A scar that is not associated with underlying soft tissue damage in an area or areas of 144 square inches (929 sq. cm.) or greater is rated as 10 percent disabling. Id.

Under the scar regulations in effect since August 13, 2018, DC 7804 provides ratings for scars that are unstable or painful. DC 7804 provides that one or two scars that are unstable or painful are rated as 10 percent disabling. Three or more scars that are unstable or painful are rated as 20 percent disabling. Five or more scars that are unstable or painful are rated as 30 percent disabling. Note (1) to DC 7804 provides that an unstable scar was one where, for any reason, there was frequent loss of covering of skin over the scar. Id. 

Under the scar regulations in effect since August 13, 2018, 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 DCs 7800 to 7804 under an appropriate DC. Id.

Throughout the duration of the appeal, the probative evidence of record, including the VA medical records and the December 2016 and June 2021 VA examinations, demonstrates that, the Veteran's residuals of status post excision right axillary hydradenitis suppurative of the right arm have been productive of, at worst, one linear scar on the right arm which measured 10 centimeters (cm) by one cm and was painful. The probative evidence also demonstrates the scar is not of the head, face or neck, does not comprise a total area of 39 square centimeters or greater, is not deep or caused limited motion, had no underlying tissue damage and was not unstable. 

As the most disabling findings were recorded in the June 2021 VA scar examination and there was no VA examination provided since December 2016, three months after the Veteran's claim for an increased rating, the Board observes that the findings in the June 2021 VA examination include the severity of Veteran's right arm radiculopathy for the period prior to this examination as well. In this regard, the Board observes that VA examinations of the skin and cervical spine were provided in December 2016; however, there was no VA examination of scars provided at that time. In addition, in the June 2021 VA examination, the Veteran reported he always had pain the right arm scar area, he testified in the September 2020 Board hearing that his right arm scar was productive of pain, and he reported in the December 2016 VA examination that he had residual numbness related to the skin excision. 

Therefore, the probative evidence of record establishes that the residuals of status post excision right axillary hydradenitis suppurative of the right arm nearly approximates a higher 10 percent disability rating, though no higher, prior to June 16, 2021 and more nearly approximates the 10 percent disability rating currently assigned from June 16, 2021 under both the old and new scar regulations. 38 C.F.R. § 4.118, DC 7804. 

As there is no probative medical evidence of three or more painful or unstable scars or a scar that is both painful and unstable, the Veteran's residuals of status post excision right axillary hydradenitis suppurative of the right arm do not warrant a disability rating in excess of 10 percent at any time throughout the duration of the appeal. 

Accordingly, the Veteran's residuals of status post excision right axillary hydradenitis suppurative of the right arm warrants the assignment of a 10 percent disability rating prior to June 16, 2021 and does not warrant a disability rating in excess of 10 percent from June 16, 2021, under both the old and new criteria for scars. 38 C.F.R. §§ 4.3, 4.7, 4.118; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 

Lay statements

The Board has considered the lay statements of record regarding the severity of the Veteran's cervical spine disability, right arm radiculopathy and residuals of status post excision right axillary hydradenitis suppurative of the right arm and has relied on these reports in determining appropriate disability ratings under the benefit-of-the-doubt doctrine. 38 C.F.R. §§ 4.3, 4.7. The Veteran is competent to report on factual matters of which he has firsthand knowledge and his statements regarding his symptoms are also credible, and thus, probative. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999). Where the Veteran has not discussed particular findings that are necessary for application to the rating criteria, the Board has accorded greater probative weight to the objective medical findings of record which specifically address the rating criteria. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). 

 

 

JENNIFER HWA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Saira Spicknall, 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.