Citation Nr: 21007239 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 12-30 508 DATE: February 9, 2021 ORDER A rating higher than 10 percent for painful scar, residual of appendectomy, is denied. A compensable rating for superficial (not associated with underlying soft tissue damage) scar, residual of appendectomy, is denied. FINDING OF FACT The Veteran’s appendectomy scar manifests as single small (no more than 12 square centimeters) painful scar of the Veteran’s anterior trunk that is superficial (not associated with underlying soft tissue damage) and does not cause functional limitation. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for painful scar, residual of appendectomy, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. 2. The criteria for a compensable disability rating for superficial and nonlinear scar, residual of appendectomy, 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 on active duty from June 1985 to April 1988. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in August 2015. A transcript of the hearing is associated with the claims file. In December 2015, September 2016, and April 2018, the Board remanded this case for further development. Based on the record, both of the issues on appeal relate to the same single scar. To avoid confusion, the Board had added the description of superficial (not associated with underlying soft tissue damage) to the claim under DC 7802 and kept the description of painful for the claim under DC 7804. Increased Rating The Veteran was originally granted service connection for residuals of appendectomy in a May 1997 rating decision. This disability, which was described as a well-healed scar, was assigned a noncompensable (0 percent) rating effective January 10, 1997. The Veteran’s current claim for an increased rating was received on January 10, 2013. In the March 2013 rating decision on appeal, this noncompensable rating was continued, and a separate 10 percent rating was awarded for a painful scar, residual of appendectomy, effective January 10, 2013. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran’s scar is rated under DC 7804 for unstable or painful scar and under DC 7802 for superficial (not associated with underlying soft tissue damage) and nonlinear scars. 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. Diagnostic Code 7804 was not changed by the August 13, 2018, amendments. Prior to August 13, 2018, Diagnostic Code 7802, was for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that were superficial and nonlinear. 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. Note 1 to Diagnostic Code 7802 instructed that a superficial scar was one not associated with underlying soft tissue damage. Id. 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. Under Diagnostic Code 7804, one or two scars that are unstable or painful scars warrant a 10 percent rating. Three or four scars that are unstable or painful scars warrant a 20 percent rating. Five or more scars that are unstable or painful warrant a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804, when applicable. 38 C.F.R. § 4.118, Note 3. The VA and private treatment records for the period show no evidence of any complaints, treatment, or symptoms associated with the appendectomy scar. The February 2013 VA scars disability benefits questionnaire (DBQ) found one appendectomy scar on the Veteran’s anterior trunk that rubbed against his belt line. This scar was tender to touch (painful). It was not due to burns. This superficial non-linear scar was 12 x 1 cm. This scar did not result in limitation of function. The Veteran did not have any other pertinent physical findings, complications, conditions, signs, or symptoms associated with this scar. This scar did not impact the Veteran’s ability to work. This DBQ confusingly indicated that the Veteran had an unstable scar, but not a scar that was both painful and unstable even though only one scar was identified. The RO sought clarification from the examiner, and, in a March 2013 correspondence, she corrected this, finding that there were no unstable scars. At his August 2015 hearing, the Veteran testified that metal clips had been left behind in his abdomen after his appendectomy. His representative was seeking further information on this and intended to submit additional evidence once obtained. To date, this anticipated evidence has not been received by VA. The October 2020 scars DBQ found one painful appendectomy scar of the anterior trunk that was not unstable and was not due to burns. This scar measured 5 x .1 cm. This scar did not result in limitation of function. The Veteran did not have any other pertinent physical findings, complications, conditions, signs, or symptoms associated with this scar. This scar impacted the Veteran’s ability to work in that he had limitations in activities such as bending. He stated that the scar would become a little irritated around the tissue sometimes with certain movements such as bending over. 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 appendectomy scar is not manifest by an area or areas of 144 square inches (929 sq. cm.) or greater. Instead, the medical evidence of record shows a much smaller affected area, measuring not more than 12 square centimeters. Additionally, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under Diagnostic Code 7804 because the Veteran’s scar is not manifest by three or four scars that are unstable or painful. Indeed, only one scar is shown. The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran’s appendectomy scar is not of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage. Therefore, Diagnostic Codes 7800 and 7801, both prior to and from August 13, 2018, 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 both pre- and post-August 13, 2018, Diagnostic Code 7805. Again, the record shows a single small painful scar of the Veteran’s anterior trunk that does not cause functional limitation. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include his lay report of scar irritation when his belt rubs the scar or with certain movements like bending over, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and the medical records do not show, that the Veteran’s appendectomy scar is manifest by three or four scars that are unstable or painful or that this scar is manifest by an area or areas of 144 square inches (929 sq. cm.) or greater. Furthermore, while there was a concern that the Veteran might have retained metal clips in his appendix following his appendectomy, no objective evidence of this has been received upon which a separate rating could be based. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a disability rating in excess of 10 percent for a painful scar, residual of appendectomy, and against a compensable rating for a scar, residual of appendectomy, based on size. In denying such a rating, the Board finds that the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Houbeck 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.