Citation Nr: 21073762 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 20-00 757 DATE: December 10, 2021 ORDER An initial compensable evaluation for non-tender scar, right lower abdomen status post appendectomy is denied. FINDINGS OF FACT 1. The Veteran has just one scar, right lower abdomen status post appendectomy which has been evaluated under two different Diagnostic Codes, 7802 and 7804. 2. The Veteran's scar, right lower anterior abdomen status post appendectomy is superficial, nonlinear, deep and does not cause limited motion and covers an area of less than 144 square inches. CONCLUSION OF LAW The criteria for an initial compensable evaluation for non-tender scar, right lower abdomen status post appendectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7802. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from March 1943 to January 1946. This matter comes before the Board of Veterans Appeals (Board) on appeal from a November 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. This matter has been advanced on the docket pursuant to 38 C.F.R. § 20.902(c). Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. See 38 C.F.R. § 4.14. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). A compensable evaluation for non-tender scar, right lower abdomen status post appendectomy The Veteran contends that his non tender scar, right lower abdomen status post appendectomy warrants a compensable rating. The Veteran's scar, right lower abdomen status post appendectomy is rated under two Diagnostic Codes, 7802 and 7804, and has a compensable rating under DC 7804 for being painful. See January 2019 rating decision. Scar disabilities are evaluated under Diagnostic Codes 7800 through 7805. Diagnostic Code 7800 evaluates scars or other disfigurements of the head, face, or neck. Diagnostic Code 7801 evaluates scars that are not located on the head, face, or neck, but are associated with underlying soft tissue damage, with a minimum area of 6 square inches (39 square centimeters). Diagnostic Code 7802 evaluates scars that are not located on the head, face, or neck, that are not associated with underlying soft tissue damage, but that cover a minimum area of 144 square inches (929 square centimeters). Note (1) provides that for the purposes of Diagnostic Codes 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Note (2) provides that a separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body, and that the separate evaluations must be combined under Section 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. See 38 C.F.R. § 4.118. Diagnostic Code 7804 evaluates scars that are unstable or painful and provides as follows: (a) a 30 percent rating for five or more scars that are unstable or painful; (b) a 20 percent rating for three or four scars that are unstable or painful; and (c) a 10 percent rating for one or two scars that are unstable or painful. See 38 C.F.R. § 4.118. Note (1) defines an unstable scar as that which for any reason manifests frequent loss of covering of skin over the scar. See id. Note (2) provides that if one or more scars are both unstable and painful, 10 percent should be added to the evaluation that is based on the total number of unstable or painful scars. See id. Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable. See id. Diagnostic Code 7805 evaluates other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7804, including any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 under an appropriate Diagnostic Code. The Board notes that on July 13, 2018, VA issued a final rule amending its regulations governing skin disabilities, which had been in effect since 2008 (the 2008 Regulations). The regulations amended in 2018 became effective on August 13, 2018 (the 2018 Regulations). Therefore, claims filed on or after August 13, 2018, must be evaluated under the 2018 Regulations; however, claims pending prior to August 13, 2018, must be evaluated under both the 2008 Regulations and the 2018 Regulations, and the most favorable set of criteria must be applied to the claims on appeal. See 83 Fed. Reg. 32592-32601 (July 13, 2018). The Veteran filed a VA 21-5260EZ. Fully Developed Claim for appendectomy scar and 9 other issues October 24, 2018. Because the Veteran's claim was not pending prior to August 13, 2018, his claims must be evaluated pursuant only to the 2018 Regulations. As stated above, the Veteran's service-connected scar disability has been evaluated under applicable Diagnostic Codes 7802 and 7804 as follows: (1) a zero percent evaluation under Diagnostic Code 7802, and (2) a 10 percent evaluation under Diagnostic Code 7804, both effective October 24, 2018, the date he filed his claim. In January 2019, the Veteran was afforded an in-person VA scar examination without records review, which culminated in a report diagnosing the Veteran with a scar on the right lower abdomen status post appendectomy. At the examination, the Veteran said that he was in a foxhole in Okinawa during Army service in 1945, when he felt pain in his right side. He was taken to a combat field clinic, put on a table, and when he woke up his appendix had been removed. The January 2019 VA examination report further noted as follows: (1) The examiner diagnosed the Veteran with tender scar right lower abdomen s/p appendectomy. (2) The Veteran described the scar as painful, after surgery following infection when a medic stuck a big needle in his side and drew out puss infection. (3) The examiner found the scar was not unstable and without frequent loss of covering of skin over the scar, which is not due to burns, and no other zones of the body are affected. (4) There is one scar on the right anterior trunk lower quadrant, that measures 13 by 0.5 centimeters (approx. 6.5 square centimeters), the posterior of the trunk is not affected, and no underlying tissue damage. (5) There is no resulting disfigurement and no abnormal pigmentation. Based on the January 2019 VA exam and Service Treatment Records, the VA Regional Office in Winston-Salem, NC awarded two service connections for the Veteran's abdominal scar later that month under DC 7802 and 7804. The Veteran was given a Board hearing in May 2021, where he testified that the scar is tender to touch and clarified that there is only one scar on his right anterior lower abdomen. The Veteran said that the scar is discolored, keloid in color, but without loss of skin covering. Following the Board hearing in May 2021 and Board remand in August 2021, the Veteran was afforded another VA scar examination later in August 2021. The exam was an in-person examination with records reviewed. This examination found the following: (1) Non-tender scar, right lower abdomen status post appendectomy from 1945. (2) The scar was not found to be painful or unstable, and without frequent loss of covering of skin over the scar, and not due to burn. (3) No scars were found in other zones. (4) The scar was measured at 12 x 0.1 cm on the anterior trunk region, covering an area of about 1.2 square centimeters. (5) The examiner found that the Veteran's scar does not impact his ability to work. As previously stated, based on the January 2019 VA examination that the Veteran's scar disability involves one scar that is painful, the Veteran was awarded a 10 percent evaluation under Diagnostic Code 7804 for his service-connected scar disability. See 38 C.F.R. § 4.118. The record does not reflect any additional painful scars and as such a higher rating under this code is not warranted. In addition, based upon the finding that the Veteran's scar was not unstable, not associated with any underlying tissue damage, not measured as 144 square inches or greater, and not causing any functional impairment; the Veteran was also awarded a noncompensable rating under Diagnostic Code 7802 for his service-connected scar disability. See 38 C.F.R. § 4.31. Accordingly, in light of the foregoing, including the findings of the January 2019 and August 2021 VA examination reports that the Veteran's scar is not unstable, is not associated with underlying tissue damage, does not measure 144 square inches or more, and does not cause functional impairment, the Board finds that the preponderance of the evidence of record weighs against a finding that the Veteran's service-connected scar disability warrants a compensable rating under Diagnostic Code 7802, see 38 C.F.R. § 4.31. In order to warrant a compensable rating under DC 7802, the Veteran's scar would have to cover an area of 144 square inches or greater. (Continued on the next page) Therefore, the benefit of the doubt doctrine does not apply in this case, and the Veteran's claim for an increased evaluation for his service-connected, non tender, right lower abdomen, status post appendectomy scar disability must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Black, Jeffrey W. 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.