Citation Nr: 21010147 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-31 868 DATE: February 24, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for painful upper abdominal quadrant circular scar is denied. Entitlement to a compensable disability rating for upper abdominal quadrant circular scar is denied. REFERRED In February 2015, the Veteran filed an informal claim for “stomach scars.” The Veteran’s subsequent correspondence and testimony at the August 2019 Board hearing support that he would like a service connection claim for internal scarring of the stomach. While a rating decision in June 2015 granted entitlement to service connection for (external) upper abdominal quadrant circular scar at a noncompensable rate and denied an increased rating in excess of 10 percent for painful (external) upper abdominal quadrant circular scar, (issues addressed herein), to date there has not been a rating decision with respect to the claimed internal stomach scarring. In a December 2019 VA opinion, a medical provider opined that the internal stomach scarring viewed on prior endoscopies was related to the Veteran’s service-connected lymphoma. A contrasting August 2020 VA examination noted that the 2019 endoscopy did not show current internal scarring. The claim of entitlement to service connection for internal stomach scarring is referred to the agency of original jurisdiction (AOJ) for appropriate consideration and handling in the first instance. 38 C.F.R. §§ 3.103, 20.104. FINDINGS OF FACT 1. The Veteran has two scars in the upper abdominal quadrant noted as at a minimum intermittently painful. The scars are not unstable. 2. The Veteran’s scars are not burn scars, and are not located on the face, neck, or head. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for painful upper abdominal quadrant circular scar have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7804. 2. The criteria for entitlement to a compensable disability rating for upper abdominal quadrant circular scar have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1969 to October 1970. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. 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. The relevant focus for adjudicating an increased rating claim is on the evidence concerning 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In every instance where the rating 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. 1. Entitlement to a disability rating in excess of 10 percent for painful upper abdominal quadrant circular scar 2. Entitlement to a compensable disability rating for upper abdominal quadrant circular scar The Veteran contends that his upper abdominal quadrant circular scars are worse than contemplated by the current rating of 10 percent for one and noncompensable for the other. After a thorough review of the evidence, the Board finds that a rating in excess of 10 percent for the abdominal scar identified as painful or a compensable rating for the other abdominal scar is not warranted. The Veteran is rated for one scar identified as painful upper abdominal quadrant circular scar under Diagnostic Code 7804 at a 10 percent disability rating from July 13, 2012. A second upper abdominal quadrant scar identified as non-painful is rated under Diagnostic Code 7805 as noncompensable from February 9, 2015. These scars are related to chemotherapy treatment for the Veteran’s service-connected lymphoma. The Veteran’s two scars are located on the upper abdominal quadrant. Diagnostic Code 7800 pertains to scars of the head, face, or neck, which is not the location of the Veteran’s service-connected scars. Accordingly, DC 7800 is not for application. The May 2015 and December 2019 VA examinations note that the Veteran’s two external upper abdominal quadrant scars are not burn scars and are superficial or not associated with soft tissue damage. Diagnostic Code 7801 pertains to burn scars or scars associated with underlying soft tissue damage. Accordingly, DC 7801 is not for application. The May 2015 and December 2019 VA examinations note that the Veteran’s two external upper abdominal quadrant scars measure a total 5 square centimeters. Diagnostic Code 7802 pertains to scars or areas of scars that total more than 929 square centimeters. Accordingly, DC 7802 is not for application. Other scars and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 are rated under Diagnostic Code 7805. Any disabling effects not considered in a rating provided under Diagnostic Codes 7800-7804 should be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118. In this case, the Veteran’s scars do not result in disabling effects. There is no functional impairment as a result of the scars per the May 2015 and December 2019 VA examinations. In this case, per the May 2015 and December 2019 VA examinations, the Veteran’s scars are not unstable. The May 2015 VA examiner marked that there are two painful scars in the left chest region. The December 2019 VA examiner described one scar in the left chest and one in the left upper quadrant both as “stable, intermittently painful.” Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, 10 percent is added to the evaluation based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable. Although the currently assigned disability rating describes one of the Veteran’s scars as “painful upper abdominal quadrant circular scar” and one as “upper abdominal quadrant scar,” even though both are reported as painful on VA examinations, neither is reported as unstable, and accordingly, whether one or two of the Veteran’s scars are painful, the relevant appropriate disability rating remains at 10 percent. Accordingly, the evidence weighs against a rating in excess of 10 percent for the Veteran’s painful upper abdominal quadrant scar under the currently assigned Diagnostic Code 7804 or against a compensable rating for the upper abdominal quadrant scar assigned to Diagnostic Code 7805. 38 C.F.R. § 4.118, DCs 7804, 7805. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Miller 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.