Citation Nr: 21074284 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-52 373 DATE: December 14, 2021 ORDER Entitlement to an initial compensable evaluation for the residuals of an abdominal scar, as due to service connected prostate cancer, is denied. FINDING OF FACT Throughout the initial rating period on appeal, the evidence does not show objective evidence of a painful or unstable abdominal scar, nor does the Veteran's abdominal scar measure greater than 39 square centimeters or 6 inches, nor are there any additional disabling effects due to the scarring. CONCLUSION OF LAW The criteria for an initial compensable evaluation for the residuals of an abdominal scar, as due to service connected prostate cancer, are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.118, Diagnostic Codes 7800-05. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which assigned an initial noncompensable evaluation, effective February 4, 2017, for the residuals of an abdominal scar. The Veteran submitted a March 2017 notice of disagreement, followed-up by a September 2017 VA Form 9. The RO issued a September 2017 statement of the case (SOC) continuing the Veteran's noncompensable evaluation. The Veteran's claim was last adjudicated in a November 2017 supplemental statement of the case (SSOC). The Veteran continues to assert the claim of entitlement of a compensable evaluation for the residuals of an abdominal scar. The Board notes that in a VA Form 9 received by the Board on November 2017, the Veteran opted out of a Board hearing and selected an on the record (OTR) adjudication by the Board for the claim. However, in an earlier VA Form 9, received by the Board in September 2017, the Veteran requested to have a videoconference hearing before the Board. A November 2017 Subsequent Development Letter was sent to the Veteran to clarify his position as it pertains to undergoing an optional Board hearing. A response by the Veteran was requested within thirty days. In a May 2021 informal hearing presentation (IHP), the Veteran's representative referred the Board to the evidence of record and waived any additional arguments to present to the Board as it pertains to the Veteran's claim. As such, the conflicting hearing request made by the Veteran has been resolved. The Board will forgo any attempts to schedule the Veteran for a Board hearing and adjudicate the above claim OTR. Laws and Regulations Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Scars are rated under 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. The scar regulations were revised effective August 13, 2018. These new regulations apply to claims that were pending on August 13, 2018 (such as here), if the new regulations are more favorable to the Veteran's case. Under the scar regulations in effect prior to and since August 13, 2018, Diagnostic Code 7800 provides ratings for scars of the head, face, and neck. As the Veteran's scars do not involve the head, face, and neck, further discussion of Diagnostic Code 7800 is not necessary. 38 C.F.R. § 4.118. Under the scar regulations in effect prior to August 13, 2018, Diagnostic Code 7801 provided ratings for scars, other than the head, face, or neck, that were deep and nonlinear. Scars that were deep and nonlinear in an area or areas exceeding 6 square inches (39 sq. cm.) were rated as 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) were rated as 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) were rated as 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq.cm.) were rated as 40 percent disabling. Note (1) to Diagnostic Code 7801 provided that a deep scar was one associated with underlying soft tissue damage. Under the scar regulations in effect since August 13, 2018, Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are associated with underlying soft tissue damage. Scars that are associated with underlying soft tissue damage in an area or areas exceeding 6 square inches (39 sq. cm.) are rated as 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) are rated as 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) are rated as 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq.cm.) are rated as 40 percent disabling. Under the scar regulations in effect prior to August 13, 2018, Diagnostic Code 7802 provided ratings for scars, other than the head, face, or neck, that were superficial and nonlinear. Superficial and nonlinear scars in an area or areas of 144 square inches (929 sq. cm.) or greater were rated as 10 percent disabling. Note (1) to Diagnostic Code 7802 provided that a superficial scar was one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Under the scar regulations in effect since August 13, 2018, Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are not associated with underlying soft tissue damage. A scar that is not associated with underlying soft tissue damage in an area or areas of 144 square inches (929 sq. cm.) or greater is rated as 10 percent disabling. 38 C.F.R. § 4.118. Under the scar regulations in effect prior to and since the August 13, 2018, Diagnostic Code 7804 provided that one or two scars that were unstable or painful were rated as 10 percent disabling. Three or more scars that were unstable or painful were rated as 20 percent disabling. Five or more scars that were unstable or painful were rated as 30 percent disabling. Note (1) to Diagnostic Code 7804 provided that an unstable scar was one where, for any reason, there was frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118. Under the scar regulations in effect prior to and since August 13, 2018, Diagnostic Code 7805 provided that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate diagnostic code. 38 C.F.R. § 4.118. Based on the above, the Board finds that a compensable rating for the Veteran's residual scars is not warranted. 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7801, 7802, 7803, 7804, 7805. Entitlement to a compensable evaluation for the residuals of an abdominal scar is denied. The Veteran asserts that he is entitled to a compensable evaluation for the residuals of an abdominal scar. A noncompensable rating has been assigned under Diagnostic Code 7805, effective February 4, 2017. In a February 2017 VA prostate cancer examination, the examiner diagnosed the Veteran with an abdominal scar due to a failed prostatectomy. The examiner noted a vertically oriented abdominal incision with a length of 14 centimeters and a width of .3 centimeters. The examiner indicated that the scar itself was not painful or unstable and did not impact the Veteran's ability to work. The examiner also noted that the total area of the Veteran's scar was not greater than 39 square centimeters or six inches. In a November 2017 VA prostate cancer examination, the examiner diagnosed the Veteran with an abdominal scar of the suprapubic area. A length of 16 centimeters and a width of .2 centimeters was noted. The examiner indicated that the scar itself was not painful or unstable and did not impact the Veteran's ability to work. The examiner also noted that the total area of the Veteran's scar was not greater than 39 square centimeters or six inches. Based on a review of the pertinent evidence, the Board finds that an initial compensable rating for the Veteran's scar is not warranted. In this regard, the Board concludes that, for the entire appeal period, the Veteran's scar was not of a size to warrant a compensable rating and does not result in functional impairment or other disabling effects. Further, the Board finds that throughout the entire period on appeal, there has been no objective evidence of a painful or unstable scar greater than 39 square centimeters. While the Veteran is competent to report about pain, multiple VA examiners during the period reported that, while the Veteran has a residual scar due to his prostate cancer surgical procedure, the scar was not noted to be painful or unstable upon examination. In other words, the Veteran's reports do not outweigh the objective evidence of record. Further, the Veteran has not described pain consistent with painful or unstable scarring. Moreover, there is no indication in the record that the Veteran's residual abdominal scar impacts the Veteran's ability to work. Lastly, the Veteran has not reported pain upon palpitation of the scar itself during any of the VA examinations. On review, the objective findings are contemplated in the noncompensable rating currently assigned under the applicable diagnostic code for this period. There is no probative evidence during this period of limitation of function or further disabling effects due to the service connected residual scar. (Continued on the next page) 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). The Board finds that, based on the evidence of the claims file, the assigned noncompensable evaluation for the Veteran's residual abdominal scar currently assigned under Diagnostic Code 7805 better approximates the trajectory of the Veteran's scar disorder. As the Board reviewed the Veteran's records and determined that they do not support a compensable evaluation, the evidence for this period preponderates against an increase, so reasonable doubt provisions are inapplicable. 38 C.F.R. § 3.102. E. BLOWERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Elliot Harris 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.