Citation Nr: 21071260 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-62 588 DATE: November 30, 2021 ORDER A rating in excess of 10 percent for residuals of painful forehead scars prior to September 15, 2021, is denied. A rating in excess of 30 percent for residuals of painful forehead scars since September 15, 2021, is denied. FINDINGS OF FACT 1. The Veteran served on active duty from November 1990 to October 1994. 2. Prior to September 15, 2021, the forehead scars were manifested by subjective complaints of a pinhole appearance of one scar; objective findings included 4 scars that were not painful or unstable, well-healed, without elevations, depressions, adherence to underlying tissue, and did not cause distortion or asymmetry of facial features. 3. Since to September 15, 2021, the forehead scars were manifested by subjective complaints of tenderness and one scar developed pus and scabbed over; objective findings included 2 painful scars with minimal tenderness but without instability or frequent loss of skin covering. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals of painful forehead scars prior to September 15, 2021, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 19.2, 4.1, 4.2, 4.7, 4.118, Diagnostic Code (DC) 7800 (2021). 2. The criteria for a rating in excess of 30 percent for residuals of painful forehead scars since September 15, 2021, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 19.2, 4.1, 4.2, 4.7, 4.118, DC 7800 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In September 2020, the Veteran testified before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. In May 2021, the Board remanded the appeal for additional development. The case has now been returned to the Board for further appellate action. Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While this case was pending, new regulations regarding ratings for skin were promulgated and became effective on August 13, 2018. Given that this case was pending at the time, for the period following August 13, 2018, whichever ratings criteria is more favorable may be applied. However, for the prior period only the amended rating criteria may be used. The Veteran is currently rated under DC 7800 under the pre-amended regulations; however, for the period after August 13, 2018, there was no change in rating under DC 7800, and as such the analysis need not be change under the amended rating criteria. The Veteran's forehead scars have been rated under DC 7800 for burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. The Board will consider all relevant diagnostic codes. In order to warrant a higher rating, the evidence must show the following: three or more scars that are unstable or painful (20% under DC 7804); or A scar with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement (30% under DC 7800); A scar with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement (50% under DC 7800). Note 1 to DC 7800 list the eight characteristics of disfigurement as: a scar 5 or more inches (in.) in length; a scar at least one-quarter in. wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square (6 sq. in.); skin texture abnormal in an area exceeding 6 sq. in.; underlying soft tissue missing in an area exceeding 6 sq. in.; and, skin indurated and inflexible in an area exceeding 6 sq. in. 38 C.F.R. § 4.118. Prior to September 15, 2021 At a December 2012 VA examination, the Veteran reported that he had several scars requiring stitches which sometimes showed a "pinhole" at one of the scars, then healed over. He did not report that any scars were painful. The examiner found that there were no painful or unstable scars with frequent loss of covering of skin over the scar, and none were due to burns. The examiner identified four separate scars, and noted that they were all well-healed and non-painful to touch. Scar number one was measured to be 2 centimeters (cm.) by 0.5 cm. Scar number two was noted to be tiny and linear, with a pinhole sized pit adjacent to it. There was no evidence of active infection, drainage, or inflammation, it measured 4 cm. by 4 cm. Scar number three was on the upper forehead, near the Veteran's hairline. It was rectangular, well-healed, and not painful, measuring 2 cm. by 1 cm. Finally, scar number four was adjacent to scar number 3, on the upper forehead, and measured 1 cm. by 1 cm. The examiner noted that none of the scars had elevations, depressions, adherence to underlying tissue, or missing soft tissue. None caused disfigurement, or abnormal pigmentation or texture of the head, face, or neck. Additionally, none caused any distortion or asymmetry of facial features or palpable tissue loss. The Veteran's VA and private treatment notes were also reviewed during that time but contained no complaints or evaluations of the scars which would suggest that a higher rating was warranted during the relevant time period. Thus, the medical evidence does not support a higher rating as the scars were not painful or unstable scars, and none had visible or palpable tissue loss, either gross distortion or asymmetry of one feature or paired set of features; and none caused any disfigurement. As such, the medical evidence does not support a rating in excess of 10 percent prior to September 15, 2021. Since September 15, 2021 At a September 2021 VA examination, the Veteran reported that the scars were tender, and that one of the scars over his left eyebrow develops pus and scabbed over. He denied ever getting treatment for the condition and denied sloughing skin or spontaneous bleeding. The examiner found that the Veteran had two painful scars, one above his left eyebrow, and left midline forehead, and that they were minimally tender to palpation with stinging. None of the scars were unstable or had frequent loss of covering of skin. The examiner noted that one scar was 2 cm. by 0.5 cm, nonpigmented, smooth on palpation and with normal texture. The scar's underlying soft tissue was intact, stable, and skin was soft and flexible, and not adhering to underlying tissue. The second scar was noted to be 3 cm. by 0.2 cm, and nonpigmented, with a small slightly elevated, non-pigmented, non-tender area overlying the scar. The third scar was 2 cm. by 0.5 cm, was non-pigmented, smooth on palpation, and had normal texture. Underlying soft tissue was intact, and the skin was soft and flexible without adhering to the underlying tissue. The final scar was 1 cm. by 0.5 cm, and also stable and smooth. While the examiner noted that two scars were tender to palpation none caused any disfigurement of the head, face, or neck, and there was no gross distortion or asymmetry of facial features or visible, palpable tissue loss. Available VA treatment records for this time period were reviewed but failed to show any gross distortion or asymmetry of the facial features. Additionally, no VA treatment records showed any evidence of the facial scars causing disfigurement. Thus, the medical evidence does not support a higher rating as only two scars were tender but there was no disfigurement to the head, face, or neck, and no gross distortion of asymmetry of facial features, or tissue loss. As such, the medical evidence does not support a rating in excess of 10 percent prior to September 15, 2021. With regard to both appeals, the Board has considered the Veteran's lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's forehead scars has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yacoub, 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.