Citation Nr: 21008552 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-30 977 DATE: February 17, 2021 ORDER Entitlement to a disability evaluation higher than 10 percent for left wrist scarring is denied. FINDING OF FACT The Veteran’s left wrist scar has been manifested by pain. CONCLUSION OF LAW The criteria for a rating higher than 10 percent for left wrist scarring have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.102, 4.3, 4.118, Diagnostic Codes (DC) 7801-7802, 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty military service from June 2006 to April 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in April 2019 and September 2020. In both instances, the matter was remanded for the issuance of a Statement of the Case (SOC) with respect to the left wrist disability “inextricably intertwined” with the left wrist scar claim. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). A Statement of the Case (SOC) was issued in January 2021. To date, the Veteran has not perfected her appeal of the left wrist injury with a VA-Form 9. Therefore, the claim for an increased rating for a left wrist injury is not currently before the Board. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900. Increased Ratings Disability ratings are determined by applying the criteria set forth in 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. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to a disability rating in excess of 10 percent for left wrist scar The Veteran contends a disability rating higher than 10 percent is warranted for her left wrist scar. A December 2012 RD granted service connection for left upper extremity scar, and granted a 10 percent evaluation, effective April 27, 2012. The Veteran is currently in receipt of a 10 percent rating for left wrist scar, pursuant to 38 C.F.R. § 4.118, Diagnostic Codes 7801-7804. To afford her all possible avenues of entitlement to a higher rating, the Board has considered all applicable diagnostic codes. Scars are rated under 38 C.F.R. § 4.118, Diagnostic Codes 7800 through 7805. Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805, may also receive an evaluation under Diagnostic Code 7804, when applicable. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (3). Diagnostic Code 7805 specifically provides that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 that require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 should be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118. The rating criteria for scars were amended on August 30, 2002, October 23, 2008, and August 13, 2018. Here, the Veteran appealed the initial assignment of a 10 percent disability rating effective April 2012, from a December 2012 rating decision. Thus, only the rating criteria in effect since October 23, 2008 and August 13, 2018 will apply. 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 7800 pertains to burn scars of the head, face, or neck; scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. 38 C.F.R. § 4.118. Under 38 C.F.R. § 4.118 as in effect since October 23, 2008, DC 7801 applied to scars from burns or other causes not of the head, face, or neck that were deep and nonlinear; and provided a 10 percent rating if the area involved at least 6 square inches, but less than 12 square inches and observed, at Note 1, that a deep scar was one associated with underlying soft tissue damage. A 20 percent rating was warranted for scar(s) affecting an area or areas of at least 12 square inches (77 square centimeters), but less than 72 square inches. Id. A 30 percent rating was warranted for scar(s) affecting an area or areas of at least 72 square inches (465 square centimeters), but less than 144 square inches. Id. A 40 percent rating was warranted for scars affecting an area or areas of 144 square inches (929 square centimeters) or greater. Id. Under 38 C.F.R. § 4.118 as in effect since October 23, 2008, DC 7802 provided for the rating for scars from burns or other causes not of the head, face, or neck that were superficial and nonlinear, and observed at Note (1), that superficial scars were not associated with underlying soft tissue damage. DC 7802 provided only for a 10 percent rating if the area affected was 144 square inches or greater. Since August 13, 2018, Diagnostic Code 7801 is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. Diagnostic Code 7801 was otherwise unchanged by the August 13, 2018 amendments. 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. Diagnostic Code 7802 was otherwise unchanged by the August 13, 2018 amendments. Diagnostic Code 7804 was not changed by the August 13, 2018 amendments. Under Diagnostic Code 7804, 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, with a maximum of 30 percent warranted for five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1). If one or more scars are both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (2). Analysis After considering the evidence of record in light of the applicable rating criteria, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for the Veteran’s left wrist scar. A Scars Disability Benefits Questionnaire (DBQ) was completed in August 2012. One painful scar, noted as soreness to left forearm at laceration site from a 2008 suicide attempt, was reported. Pain to the left forearm with palpation/contact and numbness/tingling to the left thumb, ring, and middle fingers on palmar surface of left hand were noted. The scar was described as deep, non-linear, measuring (in centimeters) 10 x 0.5 for an approximate total area measurement of 5 centimeters. No scars were noted of the head, face, or neck. The scar was not unstable or due to burns. The Veteran was afforded a Muscle Injuries DBQ in August 2013. Her scar was measured, in centimeters, as 10 x 1.25, and the scar was noted as a “crocked line.” The Veteran noted pain and incoordination during flare-ups. In January 2017, the Veteran was afforded a Wrist Conditions DBQ. A scar was noted as a median nerve laceration from 2008. It was not noted as painful or unstable. The anterior left distal forearm scar was measured, in centimeters, as 13 x 0.2. The laceration was noted has “healed and is mobile and nontender.” In January 2017, the Veteran was afforded a Scars DBQ. A left upper extremity scar was noted, with a December 2012 diagnosis date. The Veteran reported the scar as healed, and had no concerns related to the scar. Her left upper extremity scar was described as well approximated, no irritation, no drainage, and barely visible. Her superficial, non-linear scar was measured at 8 x 0.5 centimeters, with an approximate total area of 46 centimeters. The Veteran was afforded a Scars DBQ in January 2021. However, the left wrist scar was not noted upon examination. Her right great toe scar (not part of this appeal stream) was reported; however, that scar is service connected under DC 7805, with a noncompensable rating effective April 27, 2012. As Diagnostic Code 7800 pertains to scars of the head, face, or neck, this DC is not for application as the Veteran’s service-connected scar is located on her left wrist. The Board finds that the preponderance of the evidence is against the assignment of a compensable rating under Diagnostic Code 7801 because although the Veteran has underlying soft tissue damage, the Veteran is receiving a separate evaluation for left wrist injury/muscle disorder group VII under Diagnostic Code 5307. Her underlying soft tissue damage is compensated for under a separate diagnosis code. The Board finds that the preponderance of the evidence is against the assignment a higher evaluation under Diagnostic Code 7802 because the Veteran’s left wrist scar is not manifest by an area or areas of 144 square inches (929 sq. cm.) or greater. Under Diagnostic Code 7804, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent because the Veteran does not have three or four scars that are unstable or painful. In order to be entitled to a 20 percent rating, the Veteran must have three or four scars that are unstable or painful, with a maximum of 30 percent warranted for five or more scars that are unstable or painful. In this case, the Veteran has a single service-connected left wrist scar that has been noted to be painful. As such, a 10 percent rating is warranted under this diagnostic code. DC 7805 is not for application, as the Board does not find there are other disabling effects not considered in a rating provided under Diagnostic Codes 7800-7804. The RO assigned a separate rating under Diagnostic Code 5307 for muscle disorder VII due to left wrist injury. In addition, the Veteran’s right foot surgical scar is separately service connected under Diagnostic Code 7805. The Board has thoroughly reviewed the entire record, to include the report during the January 2017 Scars DBQ that the left wrist scar was healed and the Veteran experiences no issues in relation to the scar. In addition, during the January 2021 Scars DBQ, the left wrist scar was not noted upon examination. Although the results of the recent VA examinations could warrant the assignment of a noncompensable disability evaluation, reasonable doubt is applied in this case and the Board will not disturb the 10 percent evaluation by the RO. Thus, a 10 percent rating, and no more, is warranted. The Board has carefully considered the lay assertions of the Veteran. The Board understands her belief that her symptoms warrant a disability rating higher than 10 percent. However, the Board has considered the Veteran’s statements in conjunction with the medical evidence in finding that a rating higher than 10 percent is not warranted for the scar of the left wrist. 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 left wrist scar. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Krista Johnson, 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.