Citation Nr: 21012353 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-44 994 DATE: March 4, 2021 ORDER Entitlement to an initial rating higher than 10 percent for a residual scar from a head laceration of the right temple, based on disfigurement, is denied. A separate initial 10 percent for a painful residual scar from a head laceration of the right temple is granted. FINDINGS OF FACT 1. The Veteran’s service-connected scar exhibits no more than one characteristic of disfigurement and does not have visible or palpable tissue loss with either gross distortion or asymmetry of one feature or a paired set of features. 2. Resolving all reasonable doubt in his favor, the Veteran’s service-connected scar is painful. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 10 percent for a residual scar from a head laceration of the right temple, based on disfigurement, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7800. 2. The criteria for a separate initial 10 percent rating for one painful residual scar from a head laceration of the right temple have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1969 to May 1972. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in August 2016 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In August 2018, the Board remanded this claim for additional development. That development having been completed, the claim is now ready for appellate review. The Board notes that in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a claim of entitlement to a total disability rating based on individual unemployability (TDIU) may be considered part and parcel of an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has not raised a claim for TDIU. Accordingly, the Board finds that Rice is not applicable in this case. Entitlement to an initial rating higher than 10 percent for a residual scar from a head laceration of the right temple. Service connection for a residual scar from a head laceration of the right temple was granted in a February 2012, at which time a 10 percent rating was assigned, effective September 2010. A notice of disagreement with the rating assigned was received July 2012. The Veteran contends that he is entitled to a higher rating because his right temple scar is painful. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found), is required. See Fenderson, 12 Vet. App. at 126. The determination of whether an increased evaluation is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has considered the entire record, including the Veteran’s VA clinical records and private treatment records. These show complaints and treatment but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. The Veteran’s scar is currently rated under Diagnostic Code 7800, for scar of the head, face, or neck due to other causes. VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7800 was not changed by the amendments. Under Diagnostic Code 7800, one characteristic of disfigurement warrants a 10 percent rating. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement warrants a 30 percent rating. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement warrants a 50 percent rating. A scar with visible or palpable tissue loss and either gross distortion of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement warrants an 80 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7800 list the eight characteristics of disfigurement: a scar 5 or more inches in length; a scar at least one-quarter inch wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches; skin texture abnormal in an area exceeding six square inches; underlying soft tissue missing in an area exceeding six square inches; and, skin indurated and inflexible in an area exceeding six square inches. Id. The Board will also consider Diagnostic Code 7804. As pertinent to this case, both the old and new versions of Diagnostic Code 7804 provide for a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a maximum 30 percent rating for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. Turning to the evidence of record, the Veteran sought treatment in January 2011 for itchy skin over his scar. In November 2011, the Veteran was afforded a VA examination. It was noted that the Veteran’s in-service laceration was sutured and healed, leaving a keloid scar. The Veteran reported his scar was painful and tingled. The examiner indicated that on examination, the Veteran’s scar was not painful or unstable, and was not greater than 39 square cm (6 square inches). The Veteran was afforded a VA examination in January 2012. The Veteran’s scar was measured as 9 cm by 0.2 cm and had mild elevation of the skin on the medial aspect around a length of 4 cm.; however, the entire scar was not elevated. There was no abnormal pigmentation or texture of the head, face, or neck. There was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. There was no limitation of function. The examiner stated the scar was nontender to palpation, although the Veteran complained of occasional tingling to the area. The Veteran testified in August 2016 that his scar becomes irritated and he rubs it. He also testified that the scar is painful. The Veteran was afforded a VA examination in October 2019. The Veteran reported that his scar is itchy. The scar was measured to be 1 cm by 0.1 cm with no elevation, depression, adherence to underlying tissue or missing underlying soft tissue. There was no abnormal pigmentation or texture. There was no limitation of function. The examiner indicated that the Veteran’s scar was healed without pain or disfigurement. As noted, the only characteristic of disfigurement found throughout the course of the appeal was mild elevation of the skin for approximately 4 cm of the scar. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under Diagnostic Code 7800 because the Veteran does not have visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or; two or three characteristics of disfigurement. The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran’s scar is not deep and non-linear and is not associated with underlying soft tissue damage. Although it is superficial and not associated with underlying soft tissue damage, it does not cover an area or areas of 144 square inches or greater. Therefore, Diagnostic Codes 7801 and 7802, both prior to and from August 13, 2018, are inapplicable. Importantly, although the VA examiners indicated that the Veteran’s scar was not objectively painful on examination, the Veteran has consistently reported that his scar is itchy, tingles and is painful throughout the course of the appeal, since at least 2011. The Veteran’s assertions regarding these symptoms have been consistent throughout the appeal period. The Board finds that a separate 10 percent rating for one painful scar is warranted under Diagnostic Code 7804. Note 3 to this current Diagnostic Code expressly states that scars evaluated under 7800, as here, may also receive an evaluation under the Diagnostic Code for painful scar, where applicable. As such, the Board finds that a separate rating for one painful scar of the right temple is warranted under the specific circumstances of this case. 38 C.F.R. § 4.118, DC 7804. As the Veteran’s scar is not painful and unstable or there is not more than one painful or unstable scar present, a rating in excess of 10 percent under this code is not warranted. The Board acknowledges that the Veteran believes that the disability on appeal is more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include pain, tingling and itching and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). These reports have been considered in the assignment of a separate 10 percent rating under Diagnostic Code 7804 in this Board decision. However, the Veteran does not assert, and the medical records do not show, that the Veteran’s scar is manifested by visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or; two or three characteristics of disfigurement to warrant a rating higher than 10 percent under Diagnostic Code 7800. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for his scar, based on disfigurement under Diagnostic Code 7800; however, a separate 10 percent rating is warranted under Diagnostic Code 7804 based on a painful scar. In making this determination, all reasonable doubt has been resolved in favor of the Veteran. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, 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.