Citation Nr: A21020405 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 190701-10741 DATE: December 22, 2021 ORDER Entitlement to a compensable rating of 10 percent, but no higher, for service-connected anterior trunk scars, residuals of postoperative gynecomastia, is granted. FINDING OF FACT From January 21, 2019, the Veteran's anterior trunk scars were described as painful and itchy. Throughout the appeal period, the anterior trunk scars, were not unstable with frequent loss of covering of skin over the scar or with underlying tissue damage and did not cover an area of 144 square inches (929 sq. cm.) or more. CONCLUSION OF LAW The criteria for a compensable rating of 10 percent, but no higher, for the service-connected anterior trunk scars, residuals of postoperative gynecomastia, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code (DC) 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1976 to February 1997. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a June 2019 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In the July 2019 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected to appeal the issue listed above and requested a direct review of the evidence considered by the RO. This restricts the Board's review to the evidence of record at the time of the June 2019 rating decision on appeal. 38 C.F.R. § 20.301. In a December 2020 decision, the Board denied the Veteran's increased rating claim. Following the Board's decision, the Veteran filed new supplemental claims seeking, in part, an increased rating for a skin scar. The Veteran also appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). In a July 2021 rating decision, the RO increased the disability rating assigned to the postoperative gynecomastia scar to 10 percent, on and after February 19, 2021. In August 2021, the Veteran's attorney and a representative of VA's Office of General Counsel filed a Joint Motion for Partial Remand. In the Joint Motion, the parties indicated that a remand was necessary because the Board failed "to appreciate the context of [the Veteran's] written [January 2019] correspondence." In an August 2021 Order, the Court vacated the Board's December 2020 decision and remanded the matter for readjudication in light of the Joint Motion. Evidence was added to the claims file during a period of time when new evidence was not allowed. Indeed, the Veteran subsequently filed a new claim that was developed and adjudicated by the RO. As the Board is deciding the claim, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. Entitlement to a compensable rating for service-connected anterior trunk scars, residuals of postoperative gynecomastia. The Veteran seeks entitlement to a compensable rating for his service-connected anterior trunk scars, residual of postoperative gynecomastia. See January 2019 VA Form 21-526b. In January 2019 the Veteran was in receipt of a noncompensable rating under the provisions of 38 C.F.R. § 4.118, DC 7805. However, the Board will consider the Veteran's scars under all potentially applicable DCs. Scars in general are evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.118, DCs 7800-7805. The Board notes that the rating criteria for scars were amended on August 13, 2018. DC 7800 deals with scars and disfigurement of the head, face, or neck. Therefore, discussion of the Veteran's anterior trunk scars under DC 7800 is not necessary in this case. DC 7801 evaluates burn scars or scars due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. DC 7802 evaluates burn scars or scars due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. Under these criteria, a scar with an area or areas of 144 square inches (929 sq. cm.) or greater warrants a 10 percent rating. 38 C.F.R. § 4.118. No higher ratings are available under this code. Under DC 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating. Three or four scars that are unstable or painful scars warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to DC 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. The pertinent evidence in this case includes an April 2019 scars examination. The Board notes that the claims file also contains medical treatment records and a statement submitted by the Veteran's representative. In January 2019, the Veteran's representative reported that the Veteran experiences soreness and itchy skin in the service-connected anterior trunk scar. The Veteran is competent to report these symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The April 2019 VA examination report reflects that the Veteran has two surgical scars in the anterior trunk. The examiner reported that the Veteran's scars are located on the left and right breast. Each scar measures 6 cm by .25 cm and the examiner noted that the scars were not tender to palpation, unstable, or have underlying soft tissue damage. The examiner indicated that none of the Veteran's scars were painful. As described above, the Veteran reported that his anterior trunk scar was sore and itchy in January 2019. During the April 2019 examination, the anterior trunk scars were not tender to palpation or otherwise described as painful. The Veteran is competent to report the nature of his symptoms and, thus, his statements in this regard are considered competent and credible evidence. Based on the foregoing evidence and after resolving reasonable doubt in favor of the Veteran, the Board finds that a 10 percent rating is warranted for the anterior trunk scars, under DC 7804 from January 21, 2019. The Board also notes that a rating higher than 10 percent is not warranted for the anterior trunk scars after January 21, 2019, as there is no evidence showing the Veteran has three or four anterior trunk scars that are unstable or painful or that his anterior trunk scars measure at least 144 square inches or 929 square cms. See 38 C.F.R. § 4.118, DCs 7802, 7804. After a review of all the evidence, DC 7801 is inapplicable as the Veteran's anterior trunk scars are not associated with underlying soft tissue damage. Therefore, the Board finds the preponderance of the evidence supports the grant of an increased 10 percent rating for the residual surgical scar under 38 C.F.R. § 4.118, DC 7804. As such an overall 10 percent disability rating, but no higher, is warranted. In making this determination, all reasonable doubt has been resolved in favor of the Veteran. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Oquendo, L., 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.