Citation Nr: 21008441 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 16-13 037 DATE: February 17, 2021 ORDER Entitlement to a disability rating in excess of 40 percent since September 29, 2020, for radiculopathy of the right lower extremity is denied. A 40 percent disability rating, but not higher, is granted effective from January 16, 2016, to September 28, 2020, for radiculopathy of the right lower extremity, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a disability rating in excess of 10 percent prior to January 16, 2016, for radiculopathy of the right lower extremity is denied. Entitlement to a disability rating in excess of 40 percent for post-operative residuals of L4-S1 spinal fusion is denied. A separate 10 percent disability rating, but not higher, is granted effective from October 4, 2013, for a residual surgical scar, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a separate compensable rating for a residual surgical scar prior to October 4, 2013, is denied. FINDINGS OF FACT 1. The weight of evidence is against a finding that since September 29, 2020, the radiculopathy of the right lower extremity has been manifested by severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. 2. The evidence is in equipoise as to whether from January 16, 2016, to September 28, 2020, the radiculopathy of the right lower extremity was manifested by moderately severe incomplete paralysis of the sciatic nerve. 3. The weight of evidence is against a finding that prior to January 16, 2016, the radiculopathy of the right lower extremity was manifested by moderate incomplete paralysis of the sciatic nerve. 4. The weight of evidence is against a finding that since October 4, 2012, the lumbar spine disability has been manifested by unfavorable ankylosis of the entire spine. 5. The evidence is in equipoise as to whether the residual surgical scar has been painful since October 4, 2013. 6. The weight of the evidence is against a finding that there was an increase in disability in the one-year period prior to the date of claim, October 4, 2013. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 40 percent for radiculopathy of the right lower extremity since September 29, 2020, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.124a, Diagnostic Code 8520 (2020). 2. Resolving all reasonable doubt in the Veteran’s favor, the criteria for a 40 percent disability rating for radiculopathy of the right lower extremity from January 16, 2016, to September 28, 2020, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.124a, Diagnostic Code 8520. 3. The criteria for a disability rating in excess of 10 percent for radiculopathy of the right lower extremity prior to January 16, 2016, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.124a, Diagnostic Code 8520. 4. The criteria for a disability rating in excess of 40 percent for post-operative residuals of L4-S1 spinal fusion since October 4, 2012, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5241 (2020). 5. Resolving all reasonable doubt in the Veteran’s favor, the criteria for a 10 percent disability rating for the residual surgical scar effective October 4, 2013, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.118, Diagnostic Code 7804 (2020). 6. The criteria for a separate compensable disability rating for the residual surgical scar prior to October 4, 2013, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1996 to July 2004. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with his electronic claims file. In June 2019, the Board restored a 40 percent disability rating for the lumbar spine disability effective September 22, 2015. The Board remanded the issues of increased ratings for the lumbar spine disability and radiculopathy of the right lower extremity. In an October 2020 rating decision, a RO assigned a 40 percent disability rating effective September 29, 2020, for radiculopathy of the right lower extremity. As the 40 percent disability rating is not the maximum rating available for this disability, the claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). At the October 2018 hearing, the Veteran testified that his surgical scar is getting worse. Hearing transcript, page 3. Therefore, the Board will consider whether a separate compensable rating for the surgical scar is warranted. VA’s duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran has not raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Increased Rating 1. Entitlement to a disability rating in excess of 40 percent since September 29, 2020, for radiculopathy of the right lower extremity 2. Entitlement to a disability rating in excess of 10 percent from January 16, 2016, to September 28, 2020, for radiculopathy of the right lower extremity 3. Entitlement to a disability rating in excess of 10 percent prior to January 16, 2016, for radiculopathy of the right lower extremity 4. Entitlement to a disability rating in excess of 40 percent for post-operative residuals of L4-S1 spinal fusion Governing law and regulations Pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board must consider the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim for any disability for which service connection had previously been granted. As for rating peripheral neuropathy, the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or due to partial regeneration. Moreover, when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Diagnostic Code 8520 rates neuropathy associated with the sciatic nerve. A 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent rating requires evidence of moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires evidence of moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires evidence of severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires evidence of complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. A 50 percent disability rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less, or where there is favorable ankylosis of the entire thoracolumbar spine. Note (1): VA evaluates any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2020). The rating schedule further provides that an intervertebral disc syndrome (preoperatively or postoperatively) is rated under either the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under 38 C.F.R. § 4.71a, Diagnostic Code 5243, a 60 percent is in order for an Intervertebral Disc Syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent rating is assigned when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent rating is assigned when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Finally, a 10 percent evaluation is assigned when there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months Note (1): For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2020). Diagnostic Code 5243 was amended effective February 7, 2021. Diagnostic Code 5243 provides that this diagnostic code only applies when there is disc herniation with compression and/or irritation of the adjacent nerve root and that Diagnostic Code 5245 (degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome) is assigned for all other disc diagnoses. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021, and under both the old and new criteria effective February 7, 2021. Given that the old criteria provide that the lumbar spine disability, regardless of whether there is disc herniation, can be considered under Diagnostic Code 5243, the Board will evaluate the disability under that diagnostic code for the entire appeal period. Analysis Radiculopathy of the right lower extremity In an August 2004 rating decision, a RO granted service connection for radiculopathy of the right lower extremity effective July 24, 2004. The RO assigned a 10 percent disability rating effective July 24, 2004, under Diagnostic Code 8520 (paralysis of the sciatic nerve). On October 4, 2013, the Veteran contacted a RO to indicate that he intended to file a claim for compensation. On October 15, 2013, the Veteran filed his claim for increased ratings. Pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board must consider the state of the disability from the time period one year before the intent to file a claim was filed until VA makes a final decision on the claim. The effective date for an assignment of an increased rating is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year of such date; otherwise, the effective date is the date of receipt of claim. 38 C.F.R. § 3.400(o)(2). In the October 2020 rating decision, a RO assigned a 40 percent disability rating effective September 29, 2020, for radiculopathy of the right lower extremity. The Board will first address whether a disability rating in excess of 40 percent since September 29, 2020, is warranted. A September 29, 2020, VA peripheral nerves examination report reveals that muscle strength was 4/5 in all tested movements in the right lower extremity. There was no muscle atrophy. The right knee reflex was 2+ (normal), and the right ankle reflex was 1+ (hypoactive). The sensory exam was decreased in the right lower extremity for sensation to light touch. The examiner noted that there was no constant pain in the right lower extremity. The examiner described the intermittent pain (usually dull), paresthesias and/or dysesthesias, and numbness in the right lower extremity as being moderate in severity. The examiner stated that there was moderately severe incomplete paralysis of the right sciatic nerve. The Board places great weight on the lack of muscle atrophy on examination and the examiner’s finding that the radiculopathy is only moderately severe in its severity. Therefore, the weight of evidence is against a finding that since September 29, 2020, the radiculopathy of the right lower extremity has been manifested by severe incomplete paralysis of the sciatic nerve. Thus, the preponderance of evidence is against the claim for an increased rating prior to since September 29, 2020, and that claim is denied. Turning to the period prior to September 29, 2020, VA treatment records reveal that on January 22, 2016, the Veteran reported that he began to experience tingling and shooting pains in his right leg on Saturday “01/16/15.” He added that he had had this pain in the past – four to five years ago prior to his back surgeries. Physical examination revealed 5/5 strength in the right lower extremity and 2+ symmetric reflexes throughout the lower extremities. There were no sensory abnormalities. VA treatment records reflect that in February 2016, muscle strength was only 4+/5 in the right lower extremity but still 5/5 in the left lower extremity. The doctor noted that the Veteran was slightly weaker on the right side. In April 2016, there was slight decreased strength with hip flexion on the right side that was measured as 4/5. Strength was otherwise 5/5 in the lower extremities, and there was normal sensation in the lower extremities. VA treatment records reveal that in January 2017, muscle strength was 5/5 in the right lower extremity and the right patellar reflex was normal. Sensation was intact. In February 2017, motor strength was 5/5 throughout and reflexes were 2 throughout. Sensory was intact to light touch throughout. In May 2017, muscle strength was 5/5 in all tested movements. The right patellar reflex was 2+, and the right ankle clonus was absent. Sensory was intact to light touch in the lower extremities. In June 2017, the right patella and Achilles reflexes were only trace. Muscle strength was 5/5 in all tested movements in the right lower extremity. In November 2017, muscle strength was 5/5 in the dorsiflexion, inversion, and eversion in the right ankle. VA treatment records show that in December 2017 and February 2018, muscle strength was 5/5 in all muscle groups in the right lower extremity and sensation to light touch was intact. In June 2018, reflexes in the right patella and Achille’s were only 1+. Muscle strength was 5/5 throughout in the right lower extremity and sensation to light touch was intact. In September 2018, muscle strength was 5/5 throughout in the right lower extremity and patellar and Achilles’ reflexes were 2+ in the right lower extremity. In November 2019, muscle strength was 5/5 throughout in the right lower extremity. In December 2019, sensation to light touch was intact in the right lower extremity. Though the January 22, 2016, VA treatment record reveals that the Veteran reported that he began to experience tingling and shooting pains in his right leg on Saturday “01/16/15”, the Board notes that January 16, 2016, was on a Saturday and that January 16, 2015, was on a Friday. Given the calendar evidence, the Board finds that the medical evidence shows that the Veteran’s symptomatology began on January 16, 2016, and not on January 16, 2015. Though many of the VA treatment records show that muscle strength was 5/5 throughout the right lower extremity, there was decreased muscle strength in February and April 2016, which was shortly after treatment began in January 2016 for an increase in symptomatology. The decreased in muscle strength in early 2016 was the same as the decrease found on the August 2020 VA examination. Although many of the VA treatment records reflect that reflexes were normal in the right lower extremity, in June 2017 and June 2018 the reflexes were only 1+ or trace. The decrease in ankle reflex in 2017 and 2018 was the same as the decrease found on the August 2020 VA examination. These findings reflect organic changes that are more than just impairment that is wholly sensory. In light of the similar findings in the VA treatment records and the August 2020 VA examination report, the evidence is in equipoise as to whether from January 16, 2016, to September 28, 2020, the radiculopathy of the right lower extremity was manifested by moderately severe incomplete paralysis of the sciatic nerve. Thus, a 40 percent disability rating is warranted for the period from January 16, 2016, to September 28, 2020. With regard to whether a rating in excess of 40 percent for the period from January 16, 2016, to September 28, 2020, the Board places great weight on that the VA treatment records and the September 2020 VA examination report not showing evidence of muscle atrophy. As a result, the weight of evidence is against a finding that from January 16, 2016, to September 28, 2020, the radiculopathy of the right lower extremity was manifested by severe incomplete paralysis of the sciatic nerve. As for the period prior to January 16, 2016, a September 2015 VA back examination report reveals that muscle strength was 5/5 in all tested movements in the right lower extremity. There was no muscle atrophy. The right knee and ankle reflexes were 2+ (normal). The sensory exam was normal in the right lower extremity for sensation to light touch. Straight leg raising was positive in the right lower extremity. The examiner noted that there was no constant pain in the right lower extremity. The examiner described the intermittent pain (usually dull), paresthesias and/or dysesthesias, and numbness in the right lower extremity as being mild in severity. The examiner stated that there was mild incomplete paralysis of the right sciatic nerve. VA treatment records show that in October 2015 muscle strength was equal throughout the lower extremities. In June and July 2014, reflexes were 2+ and muscle strength was 5/5. Sensation was intact. In April 2014, right patellar and Achilles reflexes were 1+ and 2+, respectively. Muscle strength was 5/5 in all tested movements in the right lower extremity, and sensation was intact to light touch and pinprick throughout the right lower extremity. No muscle atrophy was noted. A December 2013 VA back examination report reveals that muscle strength was 5/5 in all tested movements in the right lower extremity. There was no muscle atrophy. The right knee and ankle reflexes were 2+ (normal). The sensory exam was normal in the right lower extremity for sensation to light touch except decreased sensation in the right lower leg and ankle. Straight leg raising was positive in the right lower extremity. The examiner noted that there was no constant pain in the right lower extremity. The examiner described the intermittent pain (usually dull), paresthesias and/or dysesthesias, and numbness in the right lower extremity as being mild in severity. The examiner stated that there was mild incomplete paralysis of the right sciatic nerve. VA treatment records show that in October 2013 the strength was intact in the right lower extremity. The right knee and ankle reflexes were 2+. The doctor noted that the Veteran had subjective numbness in the right leg. The assessment was a likely subtle change in low back radiculopathy. During the one-year time period prior to the date of claim in October 2013, VA treatment record reflect that in April 2013 leg strength was 5/5 and patellar reflex was 1+ in the right lower extremity. There was numbness to light touch in the L4-L5 distribution in the foot – specifically, the medial aspect of the right foot to the mid second toe. In February 2013, muscle strength was 5/5 in all tested movements in the right lower extremity and there was no evidence of muscular atrophy or fasciculation. Sensation was intact to light touch throughout the right lower extremity. In December 2012, strength was 5/5 in the right lower extremity but there was decreased strength in right ankle eversion and dorsiflexion. The deep tendon reflexes in the right patella and Achilles were trace. In November 2012, strength was 5/5 throughout the right lower extremity expect for right eversion and dorsiflexion, which was 4+/5. The right knee and ankle reflexes were 1+ or trace. Sensation was grossly intact to light touch. Though VA treatment records show that the patellar reflex was 1+ in April 2013 and April 2014 and both reflexes were trace or 1+ in November and December 2012, the majority of neurological examinations in the VA treatment records and VA examinations showed normal reflexes in the right patella and Achilles. Although VA treatment records reflect that in November and December 2012 there was decreased strength in right ankle eversion and dorsiflexion, the majority of the physical examinations in the VA treatment records and VA examinations showed 5/5 muscle strength in all tested movements. The Board places great weight on the evidence showing normal reflexes and 5/5 muscle strength. The Board also places considerable weight on the two VA examiner’s finding that the radiculopathy is only mild in its severity. Therefore, the weight of evidence is against a finding that prior to January 16, 2016, the radiculopathy of the right lower extremity was manifested by moderate incomplete paralysis of the sciatic nerve. The preponderance of evidence is against the claim for an increased rating prior to January 16, 2016, and that claim is denied. Lumbar spine disability In an August 2004 rating decision, a RO granted service connection for post-operative residuals of L4-S1 spinal fusion effective July 24, 2004. The RO assigned a 40 percent disability rating effective July 24, 2004, under Diagnostic Code 5241 (spinal fusion). As noted above, the Veteran filed his intent to file a claim for compensation on October 4, 2013. The December 2013 VA back examination report reveals that forward flexion was to 70 degrees and that there was no ankylosis. The September 2015 VA back examination report reveals that forward flexion was to 50 degrees and that there was no ankylosis. The October 2020 VA back examination report reveals that forward flexion was to 90 degrees and that there was no ankylosis. Therefore, a higher rating is not warranted based on ankylosis since October 4, 2012. The December 2013 and September 2015 VA examination reports do not reveal that the Veteran had intervertebral disc syndrome. The October 2020 examination report reflects that the Veteran had intervertebral disc syndrome but with no episodes of acute signs and symptoms that required bed rest during the past 12 months. This level of severity would not even warrant a 10 percent disability rating under Diagnostic Code 5243. See 38 C.F.R. § 4.31 (2020). Moreover, effective January 16, 2016, the lumbar spine disability and associated bilateral radiculopathy of the lower extremities are 70 percent disabling combined, which is higher than the maximum rating under Diagnostic Code 5243. Prior to January 16, 2016, the medical evidence does not show a diagnosis of intervertebral disc syndrome. Thus, a higher rating under Diagnostic Code 5243 is not warranted. The weight of evidence is against a finding that since October 4, 2012, the lumbar spine disability has been manifested by unfavorable ankylosis of the entire spine. Therefore, an increased rating is not warranted, and the claim is denied. 5. Entitlement to a separate compensable disability rating effective from October 4, 2013, for a residual surgical scar 6. Entitlement to a separate compensable rating for a residual surgical scar prior to October 4, 2013 Governing law and regulations Diagnostic Code 7801 provides the criteria for rating disabilities due to scars that are not of the head, face, or neck, and that are deep and nonlinear. Under 38 C.F.R. § 4.118, Diagnostic Code 7801, Note (1), a “deep scar” is defined as one associated with underlying soft tissue damage. Under those criteria, a 10 percent disability rating is assigned for qualifying scars that encompass an area or areas of at least six square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). 38 C.F.R. § 4.118, Diagnostic Code 7801 (2020). Diagnostic Code 7802 provides for a maximum 10 percent rating for superficial and nonlinear scars over an area or areas of 144 square inches or greater. Note (1) states that a superficial scar is one not associated with underlying tissue loss. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2020). Diagnostic Code 7804 provides for ratings for superficial scars, which are either unstable or painful. Under this diagnostic code, a 10 percent rating is warranted for one or two scars that are unstable or painful, a 20 percent rating is warranted for three or four scars that are unstable or painful, and a 30 percent rating is warranted for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. Other scars are rated based on the limitation of function of the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805. Where the schedule does not provide a zero percent evaluation for a Diagnostic Code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Analysis In an August 2004 rating decision, a RO granted service connection for a residual surgical scar effective July 24, 2004, as part of the grant of service connection for the lumbar spine disability. The RO did not assign a separate compensable rating for the scar and instead rated as part of the 40 percent disability rating under Diagnostic Code 5241 (spinal fusion). As stated above, the Veteran filed his intent to file a claim for compensation on October 4, 2013. At the October 2018 hearing, the Veteran testified that his surgical scar is getting worse and that the scar is causing back pain. Hearing transcript, page 3. There is conflicting evidence on whether the scar is painful. The December 2013 VA examination report shows that the examiner stated that the scar was not painful, unstable, or had an area greater than 39 square centimeters (or six square inches). VA treatment record reveal that in April 2014 the scar was described as well healed but there is no indication whether the scar was tender to palpation. In June and July 2014, the scar was again described as well healed. The doctor, however, noted that there was tenderness to palpation on both sides of the scar. The September 2015 VA examination report shows that the examiner stated that the scar was not painful, unstable, or had an area greater than 39 square centimeters (or six square inches). The examiner noted that the scar was 13 centimeters in length and two centimeters in width. VA treatment records reveal that in June, September, and October 2017 and in June 2018, the scar was described as well healed but there is no indication whether the scar was tender to palpation. In July 2018, a doctor noted that there was tenderness to palpation along the left paraspinal muscles directly above his surgical scar on the left. The October 2020 VA examination report shows that the examiner stated that the scar was not painful, unstable, or had an area greater than 39 square centimeters (or six square inches). The examiner noted that the scar was 13 centimeters in length and 1.5 centimeters in width. In summary, some VA treatment records indicate that the scar is tender to palpation whereas the examiners found that the scar was not painful. The evidence is in equipoise as to whether the residual surgical scar has been painful since October 4, 2013. Therefore, a 10 percent disability rating is warranted under Diagnostic Code 7804 effective October 4, 2013. As for the period from October 4, 2012, to October 4, 2013, VA treatment records reveal that on February 4, 2013, there was tenderness to palpation over the surgical scar with palpable trigger points. Thus, there is medical evidence that the scar was painful during the one-year period prior to the date of the claim. There is, however, medical evidence that the scar was painful prior to October 2, 2012. A May 2004 VA examination report reveals that the surgical scar was not tender. In November 2010, the Veteran reported an insidious return of symptomatology, to include pain at the area of the surgical scar. The Veteran is competent to report pain and the Board finds his reporting of pain to a medical provider to be credible. In light of the evidence that the scar was painful prior to October 4, 2012, the weight of the evidence is against a finding that there was an increase in disability in the one-year period prior to the date of claim, October 4, 2013. Therefore, the claim for an increased rating for a separate compensable rating for the residual surgical scar prior to October 4, 2013, is denied. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cherry, 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.