Citation Nr: 21073002 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-59 250 DATE: December 7, 2021 ORDER Entitlement to an evaluation of 20 percent and no higher for scars, status-post laparotomy is granted. FINDING OF FACT The Veteran has credibly testified that she has four painful scars. CONCLUSION OF LAW The criteria for a rating of 20 percent, but no higher for painful scars is granted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Codes 5329-7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from May 2004 until August 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. In July 2021 the Veteran presented hearing testimony before the undersigned Veterans Law Judge and a transcript of the proceeding is in the record. 1. Entitlement to an evaluation of 20 percent and no higher for scar, status-post laparotomy is granted. The Veteran's service-connected abdominal scars as residuals of a laparotomy, are currently rated at zero percent, effective May 13, 2014, under DC 7805. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Under DC 7801, a scar not of the head, face, or neck that is deep and nonlinear is rated as follows: a 10 percent rating is assigned for an area of at least 6 square inches (36 sq. cm.) but less than 12 square inches (77 sq. cm.); a 20 percent rating is assigned for an area of at least 12 square inches but less than 72 square inches (465 sq. cm.); a 30 percent rating is assigned for an area of at least 72 square inches but less than 144 square inches (929 sq. cm.); and a maximum 40 percent rating is assigned for an area of 144 square inches or greater. 38 C.F.R. § 4.118, DC 7801. A deep scar is one associated with underlying soft tissue damage. Id. at Note (1). Under DC 7802, a maximum 10 percent rating is assigned for a superficial and nonlinear scar not of the head, face, or neck if it measures 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118, DC 7802. A superficial scar is one not associated with underlying soft tissue damage. Id. at Note (1). DC 7804 assigns ratings for scars that are unstable or painful. A 10 percent rating is assigned for one or two qualifying scars, a 20 percent rating for three or four qualifying scars, and a 30 percent rating for five or more qualifying scars. Note 1 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, DC 7804. Further, Note (2) specifies that if one or more scars are both unstable and painful, 10 percent should be added to the evaluation that is based on the number of unstable or painful scars. Id. Under DC 7805, other disabling effects not considered under diagnostic codes 7800-7804 are rated under an appropriate diagnostic code. 38 C.F.R. § 4.118, DC 7805. The Board notes that amendments were made to the criteria for rating the skin, effective August 13, 2018. See 83 Fed. Reg. 32, 592 (July 13, 2018). The amendments did not change the criteria for rating scars under DCs 7800 and 7804. With regard to DCs 7801 and 7802, the terms deep, nonlinear, and superficial, were replaced with "underlying soft tissue damage." The revisions also divided the previously referenced body parts into various zones of the body and indicated that separate evaluations may be assigned for each affected zone. 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the Veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has undergone multiple VA examinations to assess the nature and severity of her abdominal scars. In May 2013, the Veteran underwent a VA examination to evaluate her gynecological conditions. The examiner noted a well-healed suprapubic surgical scar 13 cm long. No erythremia was noted and the scar was flat with no drainage needed. The examiner also noted that the Veteran's scar was not adherent to the underlying tissue. She was provided with another gynecological evaluation in August 2014. The examiner noted that the Veteran did have scars but that they were not painful, unstable, or greater than 39 square cm. The Veteran underwent a VA examination for gynecological conditions in November 2017. The scar on her abdomen was measured at 14cm x 1cm and a pubis scar was measured at 11cm x 0.3 cm. All surgical scars were noted to be flat, nontender, well-healed, with no erythremia or keloid formation. The scars were not found to be painful or unstable. In November 2018, the Veteran had a VA scars examination. The Veteran was diagnosed with three abdominal scars due to gynecological surgeries. It was noted that two of the scars were painful due to pressure, though none were noted to be unstable. The three scars of the anterior trunk measured at 18.5cm x 0.5cm, 1.6cm x 0.5 cm, and 24cm x 0.1cm. The first and third scar were noted to be tender upon palpation. The scars without underlying tissue damage had an approximate total area of 12.45cm squared. None of the scars resulted in limitation of function or impacted her ability to work. In March 2019 VA records, it was noted that the Veteran was experiencing increased scar tissue tension at the lower abdomen. In the July 2021 hearing, the Veteran reported that her scars were painful, tender, and itchy. She reported sharp pains and discomfort with sitting or walking. The Veteran described a shooting pain and a pulling sensation from the inside. The Veteran submitted a private disability evaluation for scars in September 2021. Four scars were noted on the abdomen and pubic region due to multiple gynecological surgeries. The examiner noted that all four scars were painful, with the pubic scars being most painful due to scar tissue. The Veteran complained of sharp pain and sensitivity to touch. The physician found that the scars were stable. The Veteran's scars measured at 12cm x 0.5cm, 7cm x 0.1cm, 13cm x 0.3cm, and 1.5cm x 0.1cm. Scars one through three were tender upon palpation and were associated with underlying tissue damage. There was no limitation of function or impact on the Veteran's ability to work due to the scars. After review of all the evidence, the Board finds that it is more beneficial to the Veteran to rate her scars pursuant to DC 7804 instead of pursuant to DC 7805 because rating the Veteran's scars pursuant to DC 7805 will not afford her a higher rating, whereas rating under DC 7804 allows for the assignment of a 20 percent rating. DC 7804 is based on painful or unstable scars. The November 2018 VA examination indicated that the Veteran had three scars that were tender upon palpation with two of the scars being noted as painful. In the July 2021 hearing the Veteran's representative noted that while the November 2018 VA examiner indicated that the Veteran's scars resulted in pressure, the Veteran actually experienced painful scars. The Veteran described shooting pains and a pulling sensation internally. She reported sharp pains, tenderness, and itchiness for the three scars noted upon examination. In the September 2021 private examination, the physician determined that the Veteran had four scars associated with her gynecological surgeries. It was noted that all four scars were painful, with the two pubic scars being the most painful. The Veteran complained of sharp pain and sensitivity to touch. The Board finds all reasonable doubt in the Veteran's favor that her scars warrant a 20 percent evaluation under DC 7804 for three to four painful scars. A higher evaluation is not warranted as the Veteran did not exhibit five or more painful or unstable scars. A separate compensable rating under DC 7805 is not warranted. The Veteran's painful scar resulting in limitation of motion is a symptom fully contemplated by the pain mentioned in DC 7804. In this case, the Board finds that to assign separate compensable ratings under DC 7804 and DC 7805 would violate the prohibition against pyramiding. See 38 C.F.R. § 4.14; also see Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board also notes that a higher and/or separate compensable rating is not warranted under DC 7802. In the November 2018 VA examination it was noted that the Veteran had scars without underlying soft tissue damage with an area of 12.45 squared cm. As the Veteran's scars do not to involve an area of 144 square inches (929 square cm) or greater a separate compensable evaluation is not for assignment. (Continued on the next page) Finally, the Board also finds a separate compensable evaluation is not warranted under Diagnostic Code 7801. The private September 2021 examination indicated that three of the Veteran's four scars had associated damage to the underlying soft tissue. The scars measured at 12cm x 0.5cm, 7cm x 0.1cm, and 13cm x 0.3cm. The total area of the scars was 10.6 cm squared. A ten percent evaluation requires that the scars associated with underlying soft tissue damage be an area of at least 39 square cm. As such a separate evaluation is not for assignment. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AK 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.