Citation Nr: 21008265 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 14-31 383 DATE: February 12, 2021 ORDER The claim of entitlement to an initial disability rating in excess of 10 percent for painful scarring status post coronary artery bypass graft surgery (described as located on the anterior trunk and on the left lower extremity) is denied. The claim of entitlement to an initial compensable disability rating for scarring of status post coronary artery bypass graft surgery (described as located on the anterior trunk and on the left lower extremity) is denied. FINDINGS OF FACT 1. The Veteran’s painful scars (one on the anterior trunk measuring 2.8 square centimeters (cm) and one on the left lower extremity, measuring 2.8 square cm) associated with coronary artery bypass graft, were stable, tender, and with a total area less than 929 square cm. 2. The Veteran’s other scars associated with coronary artery bypass graft were stable and non-tender with a total area less than 929 square cm. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for painful scarring of the anterior trunk and left lower extremity has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118; Diagnostic Codes (DC) 7804. 2. The criteria for a compensable rating for other scarring status post coronary artery bypass graft surgery have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, DC 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service with the United States Navy from August 1963 to August 1967. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 and March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Board remanded the claims for development including a new VA examination. The RO also sent the Veteran a letter requesting information to further develop the Veteran’s claims. See Subsequent Development Letter dated July 2019. In October 2019, the Veteran was afforded a new VA examination. After a supplemental statement of the case (SSOC), the claims were returned to the Board. The Board finds that the foregoing reflects substantial compliance with the October 2018 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). No response from the Veteran was received to the July 2019 development request. The Veteran also has a duty to assist and cooperate with VA in developing evidence – the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board will proceed to adjudicate the claim currently on appeal. An appellate brief was provided by the Veteran’s representative and was fully considered before this claim was adjudicated. See Appellate Brief received December 2020. Increased Rating Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Additionally, the evaluation of the same disability under several DCs, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); see also 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.1, 4.2. As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. In rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). VA’s determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. The claim of entitlement to an initial disability rating in excess of 10 percent for painful scarring of the anterior trunk and left lower extremity, status post coronary artery bypass graft surgery is denied. The Veteran contends that all the scars associated with a coronary artery bypass graft are unsightly, adhesed [sic], and painful. See VA 21-4138 received March 2013 and June 2014; VA 21-0820 Report of General Information received July 2014. The Veteran also specifically described scars on his left lower extremity that were irritating and painful, but not huge. See Correspondence received January 2014 and June 2014. The Veteran has two service-connected scars from his coronary artery bypass graft surgery that are together rated at 10 percent disabling pursuant to 7804 for 10 percent since March 10, 2013. See SOC received July 2014. The Veteran has other service-connected scarring from his coronary artery bypass graft surgery that are now rated at 10 percent disabling pursuant to 7805 and for 0 percent since March 10, 2013. Id. Under Diagnostic Code 7804, for scars that are unstable or painful, a 10 percent rating is warranted for one or two scars; a 20 percent is warranted for three to four scars; a 30 percent rating is warranted for five or more scars. 38 C.F.R. § 4.118, DC 7804. 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, Note (1). If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, DC 7804, Note (2). Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an additional rating under Diagnostic Code 7804, when applicable. 38 C.F.R. § 4.118, DC 7804, Note (3). Under Diagnostic Code 7805, other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800 to 7804 under an appropriate diagnostic code. 38 C.F.R. § 4.118, DC 7805. The Board finds that a rating of more than 10 percent for the Veteran’s painful scarring (under DC 7804) is not well supported. The records generally show that the Veteran had two distinct scars from his bypass graft surgery that were described as painful, itchy, or tender. See C&P Exam received June 2014 and October 2019. While the Veteran had some other scarring from his bypass graft surgery, the evidence does not support that these other scars were either painful or unstable. For example, in June 2014, the Veteran had a VA examination for scars or disfigurement. The Veteran described scars on his trunk and extremities. See C&P Exam received June 2014. The Veteran had two painful scars. The Veteran had one painful or tender scar on his chest measuring 14 cm and another on his leg measuring one cm. The Veteran reportedly had two additional scars on his trunk, which were old drain line scars from his surgery, measuring one cm each. None of the Veteran’s scars were described as unstable. Id. In October 2019, the Veteran had another VA examination for scars or disfigurement. The examiner reported that the Veteran had three distinct scars. The Veteran had a scar on the midline of the sternum (trunk) measuring 14 cm by 0.2 cm, a scar on the substernal (trunk) measuring two cm by 0.1 cm, and a scar on the left lower extremity measuring 14 cm by 0.2 cm. See C&P Exam received October 2019. The examiner reported that the Veteran had only two tender or itchy scars. The Veteran’s midline sternum scar was healed, stable, but tender and itchy. The Veteran’s left lower extremity scar was healed but tender and itchy. Id. The examiner also noted that the scars presented no restrictions for any job activities. See C&P Exam received October 2019. Under DC 7804 a 10 percent rating is warranted for one to two scars that are unstable or painful. The evidence discussed above, supported that the Veteran had two painful scars. However, the evidence does not support more than two painful scars. Therefore, a rating higher than 10 percent is not warranted. Additionally, the evidence of record reflects that while the two scars caused at least some ongoing pain throughout the period on appeal, these two scars were not described as unstable as well as painful. These scars also did not involve underlying soft tissue damage. While the Veteran was noted with some additional scarring, the evidence supported that this additional scarring was not unstable and was not painful. Therefore, that additional scarring was rated under DC 7805 as noncompensable. A higher rating for the Veteran’s scarring is not supported by any other relevant DCs. The Veteran did not have scarring on the head, neck, or face. The Veteran also did not have scarring equaling 929 square cm. See C&P Exam received June 2014 and October 2019. Accordingly, the Board finds that a rating in excess of 10 percent for painful scarring of the anterior trunk and left lower extremity, status post coronary artery bypass graft surgery is not warranted. Because the preponderance of the evidence weighs against the Veteran’s claim of entitlement to a rating in excess of 10 percent, there is no reasonable doubt to resolve in his favor and the claim is denied. 2. The claim of entitlement to an initial compensable disability rating for scarring of the anterior trunk and left lower extremity, status post coronary artery bypass graft surgery is denied. As discussed above, the Veteran had some other scarring, but this other scarring was properly rated as noncompensable. The evidence supported that the Veteran’s other scarring was healed and not painful. This additional scarring was rated under DC 7805 as noncompensable. A higher rating for the Veteran’s other scarring is not supported by any other relevant DCs. The Veteran did not have scarring on the head, neck, or face. The Veteran also did not have other scarring equaling 929 square cm. These scars also did not involve underlying soft tissue damage. See C&P Exam received June 2014 and October 2019. Accordingly, the Board finds that a rating in excess of zero percent for other scarring of the anterior trunk or left lower extremity, status post coronary artery bypass graft surgery is not warranted. Because the preponderance of the evidence weighs against the Veteran’s claim of entitlement to a rating in excess of zero percent, there is no reasonable doubt to resolve in his favor and the claim is denied. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, C. Parnell 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.