Citation Nr: 21068028 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 16-58 500 DATE: November 8, 2021 ORDER Effective September 19, 2012, an evaluation of 20 percent, but no higher, for service-connected scarring of the abdomen, right ankle, and right knee is granted. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder and generalized anxiety disorder, secondary to service-connected disabilities, is remanded. FINDING OF FACT Resolving all doubt in the Veteran's favor, throughout the entire appeal period, the four service-connected scars were unstable or painful. CONCLUSION OF LAW Throughout the appeal period, the criteria for a disability rating of 20 percent, but no higher, for service-connected scarring have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the U.S. Air Force from January 1990 to April 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in August 2013, January 2015, and October 2016 by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned at a hearing held in June 2019; a transcript of that hearing is of record. In June 2020, the Board remanded the Veteran's increased evaluation for service-connected scarring claim for further development. The Board finds that substantial compliance with its June 2020 Remand directives has occurred and that the claim is properly before the Board for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Increased Evaluation for Scarring of the Abdomen, Right Knee, and Right Ankle. The Veteran contends that an evaluation in excess of 20 percent is warranted for service-connected scarring of the abdomen, right ankle, and right knee. After review of the evidence, both lay and medical, the Board finds that a 20 percent evaluation is warranted for the service-connected scarring, effective September 19, 2012. By history, an August 2013 rating decision granted service connection for a right knee scar, evaluated at 0 percent and a separately rated abdomen scar, following a cesarean section, evaluated at 0 percent, both rated under Diagnostic Code 7805, both effective Septembers 19, 2012. The Veteran filed a timely notice of disagreement with assigned evaluation of the abdomen scar and this appeal followed. A January 2020 rating decision changed the Diagnostic Code (DC) for the abdomen scar, following a cesarean section to DC 7804 and assigned a 10 percent evaluation, effective December 26, 2019. Of note, the 0 percent evaluation remained in place under Diagnostic Code 7805. The January 2020 rating decision also assigned a separate, non-compensable evaluation for a right knee scar under DC 7805, effective September 19, 2012. The Board notes the Veteran, through her representative, filed a notice of disagreement with the January 2020 examination and indicated the effective date was being challenged. The Board has assumed the notice of disagreement was meant to disagree with the effective date of the assigned evaluation for the abdomen scar and that this decision represents a full grant of the benefit sought. An August 2021 rating decision granted service connection for a right ankle scar and assigned a 0 percent evaluation, effective September 19, 2012. The decision also combined the service-connected right ankle scar with the service-connected abdomen scar, following a cesarean section, changed the DC back to 7804, and assigned a 20 percent evaluation, effective August 10, 2021. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7804 was not changed by the August 13, 2018, amendments. Under Diagnostic Code 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating. Three or four scars that are unstable or painful scars warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. The Board finds that the evidence supports that the Veteran had 3 painful scars throughout the period on appeal. As such a 20 percent evaluation is warranted for the entire period on appeal. However, the preponderance of the evidence is against the assignment of a rating in excess of 20 percent under Diagnostic Code 7804 because the Veteran's scar is not manifest by five or more scars that are unstable or painful. To be sure, during the August 2021 VA examination, the examiner found three painful scars, one on the abdomen and two on the right ankle. This is consistent with the Veteran's June 2019 testimony on the scars. The Board notes the Veteran is also service-connected for a scar on the right knee and has also considered it as part of this rating, but even with its consideration the Board does not find the requisite five painful scars necessary for a higher evaluation. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include that the scarring is painful, and her reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, she does not assert, and medical records do not show, that the Veteran's service-connected scarring is manifest by five or more scars that are unstable or painful. In conclusion, the Board finds that the preponderance of the evidence supports that the Veteran's service-connected scarring, warrants a 20 percent evaluation, but no higher, for the entire appeal period. Specifically, the Veteran has consistently reported the scars as painful and the Board notes that they all resulted from surgeries well before the appeal period. Therefore, resolving all doubt in the Veteran's favor, a 20 percent evaluation is warranted effective September 19, 2012, for the service-connected scarring. REASONS FOR REMAND 1. Entitlement Service Connection for an Acquired Psychiatric Disorder. Unfortunately, the Veteran's service connection claim for an acquired psychiatric disability must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that she is afforded every possible consideration. On remand, the RO granted service connection for a series of musculoskeletal disabilities, including the back, left knee, and bilateral ankles. The record is unclear but seems to indicate that the service-connected physical disabilities may impact the currently diagnosed acquired psychiatric disorder. As such, a remand for an examination is necessary. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: 1. Associate any outstanding VA treatment records with the Veteran's electronic claims file. 2. After any records requested above have been obtained, schedule the Veteran for a VA psychiatric examination, to assess the current nature and severity of any current mental health disabilities. The VA examiner should review the evidence associated with the record. All necessary tests and studies should be conducted. The examiner should provide the following opinions: a) Does the Veteran have any currently diagnosed mental health disabilities, to include major depressive disorder? If yes, is it as likely as not that this disability was incurred in, or due to the Veteran's active military service? b) Is it at least as likely as not (50 percent probability or greater) that any current psychiatric disability is caused by any of the Veteran's service-connected disabilities? c) If not caused by the service-connected disabilities, is it at least as likely as not (50 percent probability or greater) that any psychiatric disability is aggravated (worsened in severity beyond the natural progression of the disease) by any of the service-connected disabilities? (Continued on the next page) If the VA examiner opines that any psychiatric disability is aggravated by any of the service-connected disabilities, he/she should indicate the degree of disability before aggravation and the current degree of disability. A complete rationale for all opinions is required. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Teague, 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.