Citation Nr: 21069797 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 18-30 502 DATE: November 19, 2021 ORDER Entitlement to a 10 percent evaluation for abdominal scarring is granted. REMANDED Entitlement to a disability evaluation in excess of 20 percent for gastric ulcer is remanded. FINDING OF FACT The evidence of record shows the Veteran's abdominal scarring is painful. CONCLUSION OF LAW The criteria for entitlement to a 10 percent evaluation for abdominal scarring have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, Diagnostic Code (DC) 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1978 to July 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in March 2021. The transcript is of record. The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to a compensable evaluation for abdominal scarring The Veteran is in receipt of a noncompensable evaluation for abdominal scarring and avers that his disability warrants an increased evaluation. The disability is evaluated under DC 7802. The Board notes that on July 13, 2018, VA published a final rule amending its regulations on skin disabilities. 83 Fed. Reg. 32592 (July 13, 2018). The effective date of the final rule is August 13, 2018. However, for this final rule, VA's intent is that the 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. For applications filed on or after the effective date, only the new criteria will be applied. As the Veteran filed his initial increased rating claim for his lumbar spine disability before the August 13, 2018 effective date, the Board will consider whether either the old or new rating criteria is more favorable to the Veteran. 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. 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 cm) but less than 12 square inches (77 square cm). A 20 percent rating is warranted when the area of the scar(s) covers at least 12 square inches (77 square cm) but less than 72 square inches (456 square cm). A 30 percent rating is warranted when the area of the scar(s) covers at least 72 square inches (456 square cm) but less than 144 square inches (929 square cm). A 40 percent rating is assigned when the area of the scar(s) covers at least 144 square inches (929 square cm) or greater. 38 C.F.R. § 4.118, DC 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, DC 7802. 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. Both versions state that a 10 percent disability rating is warranted when the area of the scar covers 144 square inches (929 square cm) 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 such 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 Diagnostic Code. 38 C.F.R. § 4.118, DC 7805. 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. Turning to the relevant evidence, the Veteran testified at his Board hearing that his scarring is painful and manifests as a burning sensation in the abdominal area. The report associated with a September 2016 VA scars examination is not detailed with respect to subjective symptoms associated with the scar, although it indicates that the Veteran's abdominal scar was not painful. The examiner measured the scar as 20cm x 1cm in dimension, and indicated the scar was not unstable. The scar was described as well healed, skin colored, and superficial, with no adherence to tissue, no breakdown or loss of color, no ulceration, and no tenderness. The Board acknowledges that the examination report diverges from the Veteran's account at his hearing. However, given the lack of detail in the examination report, and the Veteran's credible testimony with respect to pain, the Board does not find cause to doubt the testimony, and finds therefore that the criteria for a 10 percent evaluation based on a single painful scar under DC 7804 have been satisfied. There are no differences relevant to this issue between the old and new rating criteria for scarring. There is no basis in the record for a higher evaluation. The Veteran has a single scar, and the record has never reflected that the scar has approached the depth or dimensions contemplated in DC 7801 (i.e., the scar is superficial and measured at 20 square centimeters, whereas a 20 percent evaluation under DC 7801 requires showing of deep, nonlinear scar of at least 77 square centimeters.) Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds warranted entitlement to a 10 percent evaluation, but no higher, for abdominal scarring, and to that extent, the appeal is granted. REASONS FOR REMAND 1. Entitlement to a disability evaluation in excess of 20 percent for gastric ulcer is remanded. The Veteran has indicated in documentary submissions and in his hearing testimony that his gastrointestinal symptoms continue to worsen, and are markedly worse than when he last met with a VA examiner in September 2016. Accordingly, in order to ascertain the current nature and severity of his gastrointestinal disability, the Board finds it necessary to remand the matter for a new VA examination. The matters are REMANDED for the following action: 1. After obtaining the necessary authorization, update the file with any VA or private treatment records relevant to the Veteran's claim. If any requested records are unavailable, the Veteran should be notified to that effect. 2. Then, schedule the Veteran for a VA examination to explore the current nature and severity of his gastric ulcer. The claims folder must be provided to and reviewed by the examiner as part of the examination. All tests, studies, and evaluations should be performed as deemed necessary by the examiner, and the results of any testing must be included in the examination report. The examiner is asked to describe the current nature and severity of the Veteran's gastrointestinal condition. All pertinent symptomatology and findings should be reported in detail in accordance with VA rating criteria 3. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the opinion or report is deficient in any manner, the AOJ must implement corrective procedures. 4. Then, readjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sahraie, 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.