Citation Nr: 21012084 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 13-00 535A DATE: March 3, 2021 ORDER Entitlement to a rating in excess of 10 percent for a left arm scar is denied. FINDING OF FACT The Veteran’s painful left arm scar, residual of a surgery, manifests as a painful surgical scar measuring no more than 12.5 cm. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a left arm scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.118, Diagnostic Code 7804 (2008 and 2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1989 to November 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2018, the Board remanded the Veteran’s claim to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board’s remand directives. Specifically, the Board remanded to afford the Veteran a VA examination. In February 2020, the Board remanded the Veteran’s claim to the AOJ for further action consistent with the Board’s remand directives. Specifically, the Board found that the October 2019 examination was inadequate for adjudicative purposes, as the examiner did not account for the Veteran’s statements regarding the functional impact of her scar or the treatment she received for it. See Board remand, February 12, 2020. In September 2020, the Board remanded the Veteran’s claim to the AOJ for further action consistent with the Board’s remand directives. Specifically, the Board found that the July 2020 examination was inadequate for adjudicative purposes, as the examiner did not account for the Veteran’s statements regarding the functional impact of her scar or the treatment she received for it. See Board remand, July 10 2020. 1. Left Arm Scar The Veteran contends that she is entitled to compensation for her left arm scar. In particular, she contends that her scar symptomatology includes pain, hypersensitivity with the feeling of crawling ants over the scar, feelings of a “shockwave” traveling down to the wrist, inability to carry objects on her arm for more than a minute, itching, and numbness at certain parts of the scar. See March 2011, January 2013, March 2014, and March 2019 correspondences; see also January 2013 and May 2018 spouse statements. Additionally, the Veteran contends that her left arm scar includes a small extension described as a dot about a half inch above her “main scar.” See June 2018 correspondence. Her spouse has also noted several instances of treatment that the Veteran received in relation to her scar. See May 2018 spouse statement. Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Veteran’s entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s scar is rated under Diagnostic Code 7804, effective December 1, 2009, as 10 percent disabling. The Board notes that the regulations pertaining to the evaluation of skin disabilities, including scars, were revised effective August 13, 2018. See Schedule for Rating Disabilities: Skin, 83 Fed. Reg. 32,592 (July 13, 2018). As this Veteran's appeal was pending at the time of the regulation change, the Board has considered whether higher ratings may be warranted under the former criteria at any time during the period under review, and under the current criteria at any time from August 13, 2018 to the present day. Under the criteria in effect prior to August 2018, under Diagnostic Code 7801, scars other than on the head, face, or neck that are deep and nonlinear are rated as 10 percent disabling for areas exceeding 6 square inches (39 square centimeters), 20 percent disabling for areas exceeding 12 square inches (77 square centimeters), 30 percent disabling for areas exceeding 72 square inches (465 square centimeters), and 40 percent disabling for areas exceeding 144 square inches (929 square centimeters). Note (2) under Diagnostic Code 7802 provides that a deep scar is defined as one associated with underlying soft tissue damage. Under Diagnostic Code 7802, a 10 percent rating is warranted for superficial and nonlinear in an area or areas of 144 square inches (929 square centimeters) or greater. Note (2) under Diagnostic Code 7802 provides that a superficial scar is defined as one not associated with underlying soft tissue damage. 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. A 30 percent rating is warranted for five or more scars that are unstable or painful. Note (1) under Diagnostic Code 7804 provides that 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. Note (2) under Diagnostic Code 7804 provides that a scar or scars that is both unstable and painful on examination may be assigned an additional 10 percent rating. Note (3) under Diagnostic Code 7804 provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this Diagnostic Code 7804, when applicable. Diagnostic Code 7805 directs that any disabling effects not considered in a rating provided under Diagnostic Codes 7800-7804 should be rated under the appropriate code. Under the revised criteria, Diagnostic Code 7804 contemplates painful and unstable scars. It provides that a 10 percent rating is warranted for one or two unstable or painful scars; a 20 percent rating for three or four unstable or painful scars; and a 30 percent rating for five or more unstable or painful scars. See 38 C.F.R. § 4.118. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id., Note 1. Additionally, if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id., Note 2. The Veteran underwent a VA examination in November 2009. The Veteran reported that the skin disease involves the left inside arm and does not include the face, hands, neck or head. She reported a hypersensitive scar and denied exudation, ulcer formation, itching, shedding and crusting. The use of treatment over the past 12 months or UVB, intensive light therapy, PUVA or electron beam therapy was denied. The Veteran further denied experiencing overall functional impairment from this condition. The Veteran reported that she experienced sharp pain when the scar was touched/pressed at the top of the scar, numbness at the end (bottom) of the scar and that she was hypersensitive down to the wrist. Physical examination revealed a linear scar that measured 12 cm by 0.5 cm. Examination was negative for skin breakdown, pain on examination, inflammation, underlying tissue damage, edema, keloid formation, disfigurement, limitation on range of motion or limitation of functioning. The Veteran underwent a phone examination in March 2020. See Scars and Disfigurement Disability Benefits Questionnaire (DBQ), March 30, 2020. This examination was supposed to take place in person, but was postponed due to Covid-19 and stay-at-home orders. The Veteran related that she experienced itching, hypersensitivity, and numbness from the scar on the bottom of her wrist. The Veteran related that she underwent occupational therapy after her arm surgery, and did not meet her objectives regarding left arm hypersensitivity and sensation deficits in over the forearm. The Veteran contended that she experienced severe effects on her quality of life because contact with the left arm caused her significant pain. She reported that she had an odd sensation that resembled “crawling ants” on her left arm and experienced left arm weakness. The Veteran stated that, despite the opinions of physicians, her arm pain was not psychosomatic. She related that she was unable to carry a bag with her left forearm without experiencing localized pain. The Veteran stated that there was a smaller one-half inch mark above the top of the main scar. The examiner related that the Veteran’s primary care notes described right arm pain, swelling, and numbness, but there were no mentions of left arm symptoms. A September 30, 2019 neurology note, as the examiner stated, described no left arm pain, normal left arm strength, normal left arm sensation, and normal left arm tendon reflexes. There was no left arm treatment. The Veteran underwent an examination in November 2020. See Scars and Disfigurement DBQ, November 23, 2020. The Veteran reported that here scar has stayed the same since her hemangioma removal in June 2009, that she experienced hypersensitivity and tenderness in certain points of the scar, that she experienced tenderness in the bend of the elbow and slightly below, and that she experienced hypersensitivity down the anterior side of her forearm. She related that she went to physical therapy after the surgery, and that she was unable to meet goals set by the physical therapist. The Veteran reported that the scar and its residual hypersensitivity impacted her daily life, as she was unable to carry grocery bags or a purse on her left arm, was unable to carry laundry up and down the stairs, she dropped things that she held in her left arm, and experienced occasional numbness from the forearm to the wrist which was followed by tingling in the arm. Veteran reported difficulty cleaning with her left arm, for example cleaning in a circular motion. Upon examination, the examiner noted that the Veteran experienced a painful scar on her left arm. The examiner noted that the current symptoms were loss of muscle control, weakness, and itching at the scar site. The scar was noted to be stable with no loss of skin over the scar. The scar was not due to burns. It was located in the arm crease, was S-shaped, and was 12.5 by one centimeter. The scar was tender to palpation, and there was no underlying tissue damage. The scar did not result in a limitation of motion and did not impact the Veteran’s ability to work. There were no other pertinent findings. The examiner noted that the Veteran’s lay statements outlined the progressive pain and limitations experienced due to the arm condition, and that her scar was moderately to severely painful. The examiner related that the Veteran experienced numerous associated symptoms of peripheral neuropathy. The Board recognizes that the examiner checked the box which stated that the right upper extremity scar had a total approximate area of 12.5 square centimeters. This appears to be a mistake or typographical error, as the examiner discussed the Veteran’s left arm scar in the entire examination report and was clearly aware that the scar was located on the left upper extremity. The Veteran’s VA treatment records show that the Veteran was seen for right-side Bell’s palsy and tension-cervicogenic headaches. She had no left arm pain, and had normal left arm strength, normal left arm sensation, and normal left arm tendon reflexes. See VA treatment records, September 30, 2019. In multiple statements, the Veteran related that she experienced pain from her scar, had hypersensitivity, and was very sensitive to touch. She also related experiencing itching at the site of the scar, had numbness, and was unable to carry anything on her left arm. See lay statements, received by VA January 22, 2013; May 25, 2018; June 1, 2018; March 8, 2019. In multiple statements, the Veteran’s spouse related that the Veteran experienced pain, hypersensitivity, and daily discomfort in her left arm, and that she had limited use of her left upper extremity. The spouse reported that it was painful for the Veteran to carry groceries on her left forearm, and that even carrying a handbag caused her pain. See statements, received by VA January 22, 2013; May 25, 2018. In this case, the evidence shows that a rating in excess of 10 percent is not warranted, as the Veteran has one painful surgical scar, measuring no more than 12.5 cm. As the Veteran does not contend and the evidence does not suggest that she has more than two scars, the Board finds that 20 percent rating, the next higher rating, is not warranted under either the former or revised diagnostic criteria. In addition, a higher or separate rating under alternate diagnostic codes is not warranted. The Veteran’s scar does not include underlying soft tissue damage, is linear and is not unstable. Moreover, the Veteran’s painful scar affects her left arm only, and does not cross into a separate zone of the body, warranting a separate rating under Note (2) of Diagnostic Code 7801 or 7802. Although the Veteran reported that her left arm scar impacted her left arm functioning, objective examination consistently found that there were no functional impairments related to the left arm scar. Moreover, the November 2020 VA examiner determined that there were no other pertinent physical findings, conditions, signs and/or symptoms such as muscle or nerve damage associated with the scar. Therefore, a higher or separate rating under the former or revised diagnostic criteria for the Veteran’s eft arm scar is not warranted. The Veteran’s belief that she is entitled to a higher rating scar is outweighed by the objective medical findings of record. That is, the Board assigns greater probative value to the pertinent objective findings on the VA examination reports and treatment records that were recorded following physical examinations of the Veteran, than to the Veteran’s general belief that she is entitled to a higher rating. The Board has considered whether a staged rating under Hart, supra, is appropriate for the Veteran’s service-connected scar; however, the Board finds that her symptomatology has been stable throughout the appeal period. Therefore, assigning a staged rating for such disability is not warranted. Further, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran’s current employment status is not known and she has not alleged being unable to obtain and maintain employment as a result of her service connected left arm scar. As such, Rice is inapplicable in this case. In sum, after resolving all reasonable doubt in her favor, the Board finds that a rating in excess of 10 percent for the Veteran’s left arm scar is not warranted. As the preponderance of the evidence is against a higher rating, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lech, 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.