Citation Nr: 21013004 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-36 550 DATE: March 8, 2021 ORDER Entitlement to a 10 percent disability rating for superficial stable scars, right lower leg, from laceration with residual tenderness to palpation and underlying loss of tissue, prior to November 18, 2020, is granted. Entitlement to a disability rating in excess of 10 percent for superficial stable scars, right lower leg from laceration with residual tenderness to palpation and underlying loss of tissue, from November 18, 2020, is denied. FINDINGS OF FACT 1. Prior to November 18, 2020, the Veteran had one scar that was linear, deep, associated with underlying soft tissue damage, and intermittently painful and numb. The preponderance of the evidence does not indicate that his scar is unstable or covers at least 77 square centimeters. 2. From November 18, 2020, the Veteran has had one linear scar that was deep, associated with underlying soft tissue damage, and intermittently painful and numb. The preponderance of the evidence does not indicate that his scar is unstable or covers at least 77 square centimeters. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable disability rating for superficial stable scars, right lower leg, from laceration with residual tenderness to palpation and underlying loss of tissue, prior to November 18, 2020 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes (DCs) 7800-7805. 2. The criteria for entitlement to a disability rating in excess of 10 percent for superficial stable scars, right lower leg from laceration with residual tenderness to palpation and underlying loss of tissue, from November 18, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes (DCs) 7800-7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from November 1967 to October 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of a VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a December 2019 hearing before the Board of Veterans’ Appeals (Board). In February 2020, the Board remanded this claim for an additional VA examination. The Board finds that the RO substantially complied with its remand directives, and the Board may now proceed with adjudication. 1. and 2. Entitlement to a compensable disability rating for superficial stable scars, right lower leg, from laceration with residual tenderness to palpation and underlying loss of tissue, prior to November 18, 2020 and to a disability rating in excess of 10 percent from November 18, 2020 The Veteran asserts that his service-connected right leg scar disability is more severe than is reflected by his current staged evaluations. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. The percentage ratings are based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. §§ 4.3, 4.7. Otherwise, the lower rating will be assigned. Staged ratings are appropriate in any initial rating/increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating criteria for the skin have been amended, effective August 13, 2018. These amendments do not affect the substantive criteria under DC 7804, under which this Veteran’s scar has been evaluated. Both the prior and amended versions of DC 7800 apply to scars or other disfigurement of the head, face, or neck. As the Veteran’s scar is located on his right leg, this code is not for application. The pre-amended version of DC 7801 applies to scars that are deep and nonlinear and provides for a 10 percent disability rating when such scars cover an area or areas of at least 6 square inches (39 square centimeters). Note (1) states that a deep scar is one associated with underlying soft tissue damage. The amended version also applies to scars that are associated with underlying soft tissue damage. Under pre-amended DC 7802, scars not of the head, face, or neck, that are superficial and nonlinear are assigned a rating of 10 percent with area or areas of 144 square inches (929 square centimeters) or greater. Under amended DC 7802, scars not of the head, face, or neck, that are not associated with underlying soft tissue damage are assigned a rating of 10 percent with area or areas of 144 square inches (929 square centimeters) or greater. In this case, the Veteran’s scar does not cover at least 929 square centimeters, and this code is not for application. DC 7804 was not affected by the recent amendments. Under that code, scars that are unstable or painful can be assigned a rating of 30 percent with five or more scars that are unstable or painful. A rating of 20 percent requires three or four scars that are unstable or painful. A rating of 10 percent requires one or two scars that are unstable or painful. 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, add 10 percent to the evaluation that is 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. In this case, the Board finds that a rating of 10 percent is warranted for the entire period on appeal, but a rating higher than 10 percent is not warranted for any period. The Veteran’s VA treatment records reflect repeated treatment for right leg pain and numbness, including in January 2013, June 2014, and February 2015. During the Veteran’s May 2014 VA examination for knee and lower leg conditions, the VA examiner noted one scar on the right leg, which was not painful, unstable, or covering an area greater than 6 square inches. In a July 2014 private orthopedic treatment record, the Veteran complained of intermittent numbness in his leg but denied significant pain. In the February 2015 VA treatment record, the physician conducted an examination of the Veteran’s scar and right leg. They stated that there was no loss of strength, no identified muscle or joint damage, and no significant atrophy or quantifiable muscle loss. There were no sensory loss or peripheral nerve findings distal to the area of laceration on right lower leg. The Veteran’s pain, paresthesias, and decreased 10 gm sensation in the area surrounding his laceration scar were more likely than not a consequence of subcutaneous soft tissue damages, but no specific peripheral nerve damage could be identified. In a March 2015 Notice of Disagreement (NOD) statement, the Veteran asserted that he experienced intermittent pain and numbness in the leg associated with his service-connected scar. At his December 2019 hearing, the Veteran testified under oath that he experienced intermittent pain and numbness in his leg, and he felt his earlier VA examination had not been thorough enough or accurately represented the severity of his condition. During the Veteran’s November 2020 VA examination, the VA examiner found that there was one relevant scar, and it was painful but not unstable. The scar was 12 centimeters (cm) long and 1 cm wide. The examiner also noted that the scar was associated with underlying tissue damage. In an accompanying medical opinion, the VA examiner noted evidence of peripheral vascular disease in the Veteran’s bilateral lower extremities. The examiner stated that this was a generalized vascular condition unrelated to the laceration. Evidence of arterial injury related to the anterior scar was not found. Evidence of local pain or tenderness to palpation was noted on examination and considered a residual of the laceration. Sensory deficit on the ipsilateral posterior calf was reported although not viewed as related to the anterior scar as a reasonable neurological nexus could not be identified. The Veteran has consistently asserted that his scar is intermittently painful and numb and more severe than is reflected by his current evaluations. While the Veteran is competent to observe his scar disability symptoms, notably pain, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms in conjunction with the applicable diagnostic criteria. Additionally, he does not have the training or credentials to determine the proper disability evaluation concerning his scar disability symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). For the period prior to November 18, 2020, the Board finds the preponderance of the evidence indicates that the Veteran’s service-connected scar was intermittently painful and numb throughout the period on appeal. While the May 2014 VA examination found the scar was not painful, the Veteran has noted that the pain is intermittent and contemporaneous VA treatment records note pain and numbness in the affected extremity. Based on these facts, the Board finds the preponderance of the evidence is in favor of finding that the Veteran’s scar was painful prior to November 18, 2020. Accordingly, a 10 percent disability rating is assigned for the period on appeal. For the entire period on appeal, including the period from November 18, 2020, the preponderance of the evidence is against finding that the Veteran’s disability has met the criteria for an increased rating. There is no evidence, including in the Veteran’s own contentions, that there is more than one service-connected scar, and there is no evidence of the scar being unstable, so the disability does not meet the criteria for a 20 percent rating under DC 7804. Additionally, the scar is fewer than 12 square inches or 66 square cm in area, so it does not meet the criteria for a 20 percent rating under DC 7801 for scars that are deep and nonlinear. Based on these facts, the Board finds the preponderance of the evidence is against the Veteran’s claim. Accordingly, the Veteran’s claim insofar as he seeks a rating in excess of 10 percent is denied. 38 U.S.C. § 5107(b). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Notably, the evidence and contentions of record do not suggest that the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has been raised in this case. Rice v. Shinseki, 22 Vet. App. 447 (2009). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Hicks, 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.