Citation Nr: 21011399 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 20-00 774 DATE: March 1, 2021 ORDER A compensable rating for scars associated with gall bladder removal surgery is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s scars associated with gall bladder removal surgery have been characterized by three scars that are stable and unpainful with a total area measuring less than 39 sq. cm. (6 sq. in.). CONCLUSION OF LAW The criteria for a compensable rating for scars associated with gall bladder removal surgery have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.31, 4.118, DCs 7800-7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from October 1990 to March 1998. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2019 rating decision. The Veteran testified before the Board at a hearing in January 2021. A transcript of the hearing has been associated with the claims file. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Although the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Scars Associated with Gall Bladder Removal Surgery Disability ratings for scars are assigned under 38 C.F.R. § 4.118, DCs 7800-7804. As an initial matter, DC 7800 is not applicable, as the Veteran’s scars are not of the head, face, or neck. In order to warrant a compensable rating for scars not of the head, face or neck, the evidence must show: • scar(s) that are associated with underlying soft tissue damage with an area or areas of at least 6 sq. in. (39 sq. cm.) but less than 12 sq. in. (77 sq. cm.) (10 percent under DC 7801); • scar(s) that are not associated with underlying soft tissue damage with an area of 144 sq. in. (929 sq. cm.) or greater (10 percent under DC 7802); • one or two scars that are unstable or painful (10 percent under DC 7804); or • one or two scars that are both unstable and painful (20 percent under DC 7804, Note (2)). 38 C.F.R. § 4.118. The Board notes that 38 C.F.R. § 4.118 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Further, the Board also notes that when the rating criteria does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. The Board has reviewed the evidence of record and finds that a compensable rating is not warranted for the Veteran’s scars associated with gall bladder removal surgery. First, at the January 2021 hearing before the Board, the Veteran provided testimony regarding her appeal. The Veteran asserted that her scars associated with gall bladder removal surgery warrant a 10 percent rating. The Veteran asserted that under the rating criteria regarding characteristics of disfigurement for scars, a 10 percent rating is warranted when a scar demonstrates one characteristic. The Veteran further asserted that one the scars associated with her gall bladder removal surgery demonstrates four characteristics. Specifically, the Veteran asserted that the scar on her right upper abdomen demonstrates the characteristics of hyperpigmentation, abnormal skin texture, one-quarter inch in width, and elevated surface contour. The Veteran asserted that these characteristics were not properly considered in the VA examination regarding her gall bladder removal surgery and associated scars. Further, the Veteran stated that she is unable to wear certain clothing due to the disfiguring characteristics of the scar. The Veteran also stated that all the scars associated with her gall bladder removal surgery are stable and unpainful. Next, in December 2018, the Veteran underwent an in-person VA examination with claims file review regarding her gallbladder removal surgery and associated scars. The examiner documented that the Veteran underwent gallbladder removal surgery in May 1993. The examiner documented that the Veteran has three scars associated with her gallbladder removal surgery. The examiner noted that the scar on the right upper abdomen is .5 cm. long by 1 cm. wide; the scar on the right lower abdomen is .5 cm. long by 1 cm. wide; and the scar on the middle abdomen is .2 cm. long by 2 cm. wide. The examiner determined that the total affected area is less than 39 sq. cm. (6 sq. in.). The examiner also noted that none of the Veteran’s scars associated with her gallbladder removal surgery are painful or unstable. The Board finds that evidence of record demonstrates that a compensable rating for scars associated with gall bladder removal surgery is not warranted. First, during the January 2021 hearing before the Board, the Veteran asserted that her gallbladder removal scars warrant a 10 percent rating for characteristics of disfigurement, including hyperpigmentation, abnormal skin texture, one-quarter inch in width, and elevated surface contour. The Board notes that although the rating criteria regarding scars do include characteristics of disfigurement, such characteristics are only evaluated under DC 7800 for scars of the head, face, or neck. As noted above, DC 7800 is not applicable in the present case, as the Veteran’s scars are not of the head, face, or neck. Thus, the Veteran’s gallbladder removal scars are appropriately rated under DC 7801-7804. Second, the results of the December 2018 VA examination demonstrate that the Veteran does not have any scars that are painful or unstable as required for a compensable rating under DC 7804 and that the total area of the Veteran’s scars are less than 39 sq. cm. (6 sq. in.) as required for a compensable rating under DCs 7801-2. Therefore, the Board finds that a compensable rating is not warranted under any diagnostic code for the Veteran’s scars Accordingly, the Board concludes that the preponderance of the evidence is against the claim of a compensable rating for scars associated with gall bladder removal (Continued on next page) surgery, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Page-Nelson, 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.