Citation Nr: 21070233
Decision Date: 11/23/21	Archive Date: 11/23/21

DOCKET NO. 19-31 408
DATE: November 23, 2021

ORDER

Entitlement to a compensable rating for scar residuals of service-connected status post stab wound of the right arm is denied.

FINDING OF FACT

The Veteran's service-connected scars related to his stab wound of the right arm are not unstable or painful, measure less than 144 square inches (929 square centimeters) in total area, are not associated with underlying soft tissue damage, and result in no functional impairments or disabling effects.

CONCLUSION OF LAW

The criteria for a compensable rating for service-connected scars related to his status post stab wound of the right arm have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes 7804, 7805

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from November 1958 to October 1960, October 1961 to August 1962, and from July 1964 to April 1982.

This matter comes before the Board of Veterans' Appeals (Board) from an October 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 

This matter was previously remanded in December 2019 to obtain any outstanding treatment records and afford the Veteran a VA examination assessing the current severity of the service-connected right arm stab wound residuals. The Veteran authorized release of his private treatment records from Dr. L.H., Dr. M.N., and Dr. J.C. in September 2020, and the RO obtained treatment records from Dr. L.H. However, Dr. M.N. and Dr. J.C. did not respond to the RO's two requests made in accordance with 38 C.F.R. § 3.159(c)(1) in December 2020 and February 2021. The RO notified the Veteran accordingly. In April 2021, the RO re-requested authorization to obtain these records due to a signature error on the September 2020 authorization, but the Veteran only authorized release of VA treatment records. Updated VA treatment records and several VA examinations related to the Veteran's right arm stab wound residuals were obtained thereafter in July 2021. As such, the Board finds that the remand instructions were substantially complied with, and further remand is unnecessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

As part of his request for a higher rating for the service-connected residuals of his right arm stab wound, the Veteran argued he has limited strength and nerve damage.  On remand, the Board ordered an examination to determine whether there were any such residuals.  On remand, he was granted a separate 20 percent rating for right upper extremity radiculopathy, effective June 14, 2018, the date of his increase rating claim.  This is a separate rating that must be separately appealed if the Veteran is dissatisfied with it, and he has until August 1, 2022 to do so.  The separate neurological rating was not included in the most recent Supplemental Statement of the Case, so the Veteran has not been led to believe it was part of his appeal returning to the Board.  The only issue within the Board's jurisdiction is the previously assigned rating for the scar.

Preliminarily, the Board notes that no private or VA treatment records during the appeal period discuss the overall right arm stab wound disability or its residuals. The only reported symptoms related to this disability are those discussed in VA examinations and in the June 2018 Statement in Support of Claim, November 2018 Notice of Disagreement, and October 2019 VA Form 9. 

The Veteran is currently in receipt of only a non-compensable rating for scars under 38 C.F.R. § 4.118 Schedule of Ratings - skin, Diagnostic Code 7805 for residuals of his right arm stab wound. 

During the pendency of the appeal, certain rating criteria for evaluating scar conditions were revised, effective August 13, 2018. See 83 Fed. Reg. 32,592 (July 13, 2018); 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7805. The Veteran's symptoms are evaluated under both the old and new rating criteria, and the version that is more beneficial to the Veteran is applied, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to August 13, 2018 and both the old and new rating criteria from August 13, 2018. The criteria that is more favorable to the Veteran will be applied.

The minimum compensable rating, 10 percent, for a scar not of the head, face, or neck, is available under Diagnostic Codes 7801, 7802, and 7804. A 10 percent rating under Diagnostic Code 7801, which was in effect until August 13, 2018, required a deep and non-linear scar to have a total area of 6 inches (39 sq. cm.). See 38 C.F.R. § 4.118, Diagnostic Code 7801. A 10 percent rating under Diagnostic Code 7802, also in effect until August 13, 2018, required a superficial and non-linear scar to have a total area of 144 square inches (929 sq. cm.). See 38 C.F.R. § 4.118 (2017), Diagnostic Code 7802. A "deep" scar is one associated with underling soft tissue damage, and a "superficial" scar is one not associated with underlying soft tissue damage. See 38 C.F.R. § 4.118, Diagnostic Code 7801, Note (1); Diagnostic Code 7802, Note (1). Separately, a 10 percent rating under Diagnostic Code 7804, which remains unchanged, requires a scar to be unstable or painful. See 38 C.F.R. § 4.118, Diagnostic Code 7804. An "unstable" scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1).

Under the current rating criteria, Diagnostic Code 7801 no longer uses the term "deep," and it is no longer relevant whether a scar not of the head, face, or neck is linear or non-linear. Instead, the current rating criteria distinguishes between scars that are associated with underlying soft tissue damage and scars that are not. The minimum compensable rating requires that a scar not associated with underlying soft tissue damage to have a total area of 144 square inches (929 sq. cm.) or greater, or, to be unstable or painful. See 38 C.F.R. § 4.118, Diagnostic Codes 7802, 7804. Specifically, a 10 percent rating is warranted for one or two scars that are unstable or painful, a 20 percent rating is warranted for three or four scars that are unstable or painful, and a 30 percent rating is warranted for five or more scars that are unstable or painful. See 38 C.F.R. § 4.118, Diagnostic Code 7804. Diagnostic Code 7805 instructs that any disabling effects not considered in a rating provided under Diagnostic Codes 7800 through 7804 be evaluated under an appropriate diagnostic code. See 38 C.F.R. § 4.118, Diagnostic Code 7805.

At the July 2021 VA scars examination, the Veteran's right forearm scars were measured at 7 cm by 0.1 cm and 3 cm by 0.1 cm, covering a total area of 1 cm2. The examiner noted that the scars were neither painful nor unstable, were not associated with underlying soft tissue damage, and did not result in limitation of function. At the August 2021 VA scars examination, the Veteran's right forearm scars were measured at 7 cm by 0.1 cm and 3.5 cm by 0.1 cm, covering a total area of 1.05 cm2. The examiner similarly noted that the scars were neither painful nor unstable, were not associated with underlying soft tissue damage, and did not result in limitation of function.

After a review of the lay and medical evidence, the Board finds that a compensable rating for scars associated with the service-connected right arm stab wound is not warranted under either the new or old rating criteria. The Veteran's right arm scars have not been noted as deep, non-linear, and spanning a total area of 39 cm2 or greater as required by prior Diagnostic Code 7801, and have not been noted as non-linear and spanning a total area of 929 cm2 or greater as required by prior Diagnostic Code 7802. Similarly, the Veteran's right arm scars, which are not associated with underlying soft tissue damage, do not span a total area of 929 cm2 as required by the revised Diagnostic Code 7801, and are not unstable or painful as required by the unchanged Diagnostic Code 7804. The Board is cognizant of the Veteran's report that his scar(s) itch, as noted in his November 2018 Notice of Disagreement; however, the Veteran did not report itchiness at either the July 2021 or August 2021 VA scars examinations and has not reported itching/itchiness in his private or VA treatment records. Due to the Veteran's limited report of this symptom, the Board finds that the severity and frequency of the reported itching/itchiness is fully contemplated by the existing non-compensable rating.

Accordingly, the Veteran's claim of entitlement to a compensable rating for scars associated with the service-connected right arm stab wound is denied.

 

 

MICHELLE L. KANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Tierno

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.