Citation Nr: 21072962 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-58 332 DATE: December 7, 2021 ORDER Entitlement to a compensable disability rating for residual scars from burns to abdomen is denied. Entitlement to a compensable disability rating for residual scar from burns to right forearm is denied. Entitlement to a compensable disability rating for residual scar from burns to left forearm is denied. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for right ear hearing loss is remanded. Entitlement to a compensable disability rating for hemorrhoids is remanded. FINDINGS OF FACT 1. The Veteran's residual scars from burns to abdomen measures 10.5 cm2 and are not painful or unstable. 2. The Veteran's residual scars from burns to right forearm measures 1.5 cm2 and are not painful or unstable. 3. The Veteran's residual scars from burns to left forearm measures 0.5 cm2 and are not painful or unstable. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable disability rating for residual scars from burns to abdomen have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7802. 2. The criteria for entitlement to a compensable disability rating for residual scar from burns to right forearm have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7802. 3. The criteria for entitlement to a compensable disability rating for residual scar from burns to left forearm have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7802. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Navy from April 1970 to January 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. INCREASED RATING 1. Entitlement to a compensable disability rating for residual scars from burns to abdomen 2. Entitlement to a compensable disability rating for residual scar from burns to right forearm 3. Entitlement to a compensable disability rating for residual scar from burns to left forearm The Veteran's abdominal and bilateral arm scarring were rated together under Diagnostic Code 7803 and a noncompensable disability rating was assigned effective August 12, 2005 to August 13, 2018. A June 2019 rating decision separated the scarring into abdominal scars, right forearm scarring, and left forearm scarring and assigned noncompensable disability ratings under Diagnostic Code 7802, effective August 13, 2018. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after 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 may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Since August 13, 2018, Diagnostic Code 7802 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. Diagnostic Code 7802 was otherwise unchanged by the August 13, 2018, amendments. The Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation under Diagnostic Code 7802 because the Veteran's abdominal scars and bilateral forearm scars are not manifest by an area or areas of 144 square inches (929 sq. cm.) or greater. The March 2019 VA examination revealed that the approximate total area affected by the Veteran's abdominal scars is 10.5 cm2. The approximate total area affected by the Veteran's right forearm scars is 1.5 cm2. And the approximate total area affected by the Veteran's left forearm scars is 0.5 cm2. The VA examiner noted that none of the scars have any underlying tissue damage and none of the scars are painful or unstable. The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran's scars are not of the head, face, or neck, are not deep and non-linear, and are not associated with underlying soft tissue damage. Moreover, the Veteran's scars are not unstable or painful. Therefore, Diagnostic Codes 7800, 7801, and 7804, are inapplicable. Finally, the evidence of record shows there are no other disabling effects not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under Diagnostic Code 7805. The Veteran does not assert and medical treatment records do not show that the Veteran's abdominal and bilateral forearm scarring is manifest by an area or areas of 144 square inches (929 sq. cm.) or greater, or that the scars are painful or unstable. In fact, during his Board hearing, the Veteran testified that he has no physical problems with his scars, but they are just a discoloration and reminder of what happened during his service. See July 2021 Hearing Transcript. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claims for compensable ratings for abdominal scars, right forearm scars, and left forearm scars. In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for PTSD is remanded. The Veteran is seeking service connection for PTSD. His primary stressor of having a gun held to his head has not been verified and insufficient evidence has been provided to attempt to verify such incident. However, the Board finds that a new VA examination is needed prior to adjudication of this claim, to address whether he suffers from PTSD as a result of the in-service steam valve explosion which burned the Veteran and left scars across his abdomen and arms, which are now service-connected. 2. Entitlement to service connection for right ear hearing loss is remanded. The Veteran is seeking service connection for right ear hearing loss. The Board finds that additional opinion is needed prior to adjudication of this claim. The Veteran was afforded a VA examination in connection with his hearing loss claim in March 2019. Although the examiner did provide a diagnosis of right-ear hearing loss, the examiner based the negative nexus opinion on the fact that hearing loss was not shown in service and there was no significant threshold shift in service. See March 2019 VA examination. However, hearing loss need not be shown during service for service connection to be established if there is competent evidence linking the current condition to service. Accordingly, the Board finds that an addendum opinion is needed. 3. Entitlement to a compensable disability rating for hemorrhoids is remanded. The Veteran is seeking an increased rating for his service-connected hemorrhoids. The Board finds that additional development is needed prior to adjudication of this claim. The Veteran testified that he experiences hemorrhoidal flares every two to three weeks but was asymptomatic during his 2019 VA examination. See July 2021 Hearing Testimony. As such, a new VA examination is warranted. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination to address the claim for PTSD. The claims file must be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner should indicate whether the Veteran suffers from PTSD as a result of the incident in service when a steam valve exploded resulting in various burn injuries and residual scarring. The examiner should explain the reasoning for the opinion provided. 3. Send the claims file to a VA audiologist to obtain an addendum opinion on the claim for service connection for hearing loss. If a new examination is deemed necessary to respond to the question presented, one should be scheduled. Following review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the Veteran's right ear hearing loss is related to service. The examiner should explain why or why not. The examiner should also explain why the Veteran's current hearing loss is or is not a delayed residual of in-service noise exposure, to include addressing the Veteran's testimony of experiencing hearing loss approximately a year after his separation from service. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hemorrhoids. The examiner should provide a full description of the disability and address the severity, frequency, and duration of any flare-ups. 4. If the claims remain denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. N. Wilson, Associate 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.