Citation Nr: 21013340 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 13-22 342 DATE: March 9, 2021 ORDER Entitlement to a disability rating greater than 20 percent for degenerative disc disease (DDD) of the lumbosacral spine is denied. Entitlement to a disability rating greater than 20 percent for residuals of a left femur fracture is denied. Entitlement to a disability rating greater than 10 percent for a painful scar of the left thigh is denied. Entitlement to an initial compensable rating for a linear scar of the left thigh is denied. FINDINGS OF FACT 1. The preponderance of the evidence and objective findings indicate that the Veteran’s back disability did not manifest in incapacitating episodes having a total duration of least four weeks but less than six weeks during the past 12 months nor did it result in forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 2. The preponderance of the evidence and objective findings did not include malunion of the left femur productive of a marked disability, ankylosis of the knee, favorable angle in full extension, or in slight flexion between 0 and 10 degrees, recurrent subluxation or lateral instability, unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., canes, crutches, walkers) and bracing for ambulation, or fracture of the shaft or anatomical neck of the femur with nonunion, with loose motion. 3. The preponderance of the evidence and objective findings indicate that the Veteran’s left thigh scar is not painful, unstable, and does not limit function. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 20 percent for DDD of the lumbosacral spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.7, 4.71a, Diagnostic Code (DC) 5243. 2. The criteria for a disability rating greater than 20 percent for residuals of a left femur fracture have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5255. 3. The criteria for a disability rating greater than 10 percent for a painful scar of the left thigh have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. § 3.151, 3.155, 4.118, DC 7805. 4. The criteria for an initial compensable rating for a linear scar of the left thigh have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. § 3.151, 3.155, 4.118, DC 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1976 to November 1979. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2015 and September 2015 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board remanded these issues in October 2017 in order to obtain relevant medical records and VA examinations. There has been substantial compliance with the October 2017 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. The Veteran did not respond to the request nor submit the private treatment records requested. The duty to assist is not a one way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board notes that the Veteran withdrew his Board hearing request in September 2020. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § § 4.2. All 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 disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § § 4.59 requires that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). 1. Entitlement to a disability rating greater than 20 percent for degenerative disc disease (DDD) of the lumbosacral spine The Veteran’s lumbar spine is rated under Diagnostic Codes 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS). VA’s Schedule for rating disabilities directs that IVDS (preoperatively or postoperatively) is to be rated under the General Rating Formula for Diseases and Injuries of the Spine or under Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. A rating under both schedules is prohibited. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised Diagnostic Codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021, and the criteria that is more favorable to the Veteran will be applied. The Veteran’s disability is currently rated under Diagnostic Code 5243. Although the portion of the rating schedule that addresses the musculoskeletal system was revised effective February 7, 2021, this diagnostic code was not changed. Under DC 5243, the rating criteria for intervertebral disc syndrome (IVDS), a 40 percent rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of least four weeks but less than six weeks during the past 12 months. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under the former rating criteria for DC 5242, the General Rating Formula for Diseases and Injuries of the Spine provides a 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. As of February 7, 2021, under the amended criteria, DC 5242 assigns a 40 percent disability rating where there is evidence of forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Additionally, the current rating criteria permits assignment of a disability rating under either DC 5003 or DC 5010. Arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. Degenerative arthritis when established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Code 5003. A 20 percent rating is applied where there is X-ray evidence of arthritic changes involving two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, DC 5003, 5010. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. The Veteran underwent a VA examination in December 2009. The Veteran reported experiencing pain daily in the mid low back without radiation, approximately 80 percent of an average day with an intensity of 8/10. He takes tramadol, ibuprofen, and a muscle relaxant with mild relief of pain. The pain is worsened by standing 15 minutes, walking one block, or climbing five steps. The examiner noted that range of motion is approximately 50 percent of normal. The pain is made worse by exposure to cold air, lifting or carrying more than 15 pounds. The Veteran denied experiencing incapacitating flare-ups. He does not use a brace, has not had injections, and has no recent x-rays or MRI. On physical examination, the examiner found no evidence there is no paraspinal spasm or localized tenderness. The Veteran’s forward flexion measured 0-40 degrees with pain and functional limitation at 40 degrees. Extension measures 0-30 degrees without painful limitation. He can tilt from 0-40 degrees right and left with pain at 40, but no functional limitation and he can rotate from 0-40 degrees right and left without painful limitation. A January 2013 VA examination report showed the Veteran reported flare-ups manifesting as occasional low back pain. Initial range of motion (ROM) showed forward flexion ending at 70 degrees, extension ending at 10 degrees with no objective evidence of painful motion, right and left lateral flexion ending at 15 degrees with no evidence of painful motion, and right and left lateral rotation ending at 20 degrees with no evidence of painful motion. Repetitive-use ROM showed forward flexion ending at 70 degrees, extension ending at 10 degrees, right lateral flexion ending at 15 degrees, left lateral flexion ending at 10 degrees, and right and left lateral rotation ending at 15 degrees. The examiner found no additional limitation in ROM, functional loss and/or impairment, nor evidence of localized tenderness, pain to palpation for joints and/or soft tissue, muscle atrophy, radiculopathy, IVDS, or any other neurologic abnormalities. The Veteran did not use any assistive devices as a normal mode of locomotion. The Veteran showed normal deep tendon reflexes, muscle strength, and sensation to light touch. The Veteran reported experiencing flare-ups of the thoracolumbar spine to a January 2018 examiner. The Veteran experienced lumbar pain and nonradicular pain. ROM testing showed forward flexion ending at 40 degrees, extension ending at 10 degrees, right and left lateral flexion ending at 20 degrees, and right and left lateral rotation ending at 30 degrees. The examiner found evidence of pain on forward flexion and extension that did not result in or cause functional loss. There was no evidence of pain with weight bearing nor evidence of localized tenderness on palpation of the joints or associated soft tissue. The Veteran completed repetitive use testing without additional loss of function or range of motion. The Veteran was not examined immediately after repetitive use over time. Pain, weakness, fatigability, or incoordination did not significantly limit function ability with repeated use over a period of time. The Veteran was not examined during a flare-up. The examiner noted that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-ups. The examiner stated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare-ups. The Veteran exhibited muscle spasms that did not result in abnormal gait of abnormal spinal contour. The Veteran showed normal deep tendon reflexes, muscle strength, and sensation to light touch. The examiner found no evidence of ankylosis, muscle atrophy, radiculopathy, IVDS, or any other neurologic abnormalities. The Veteran did not use any assistive devices as a normal mode of locomotion. He opined that the Veteran’s back condition did not impact his ability to work. The examiner found no pain during passive ROM testing or during non-weight bearing. The Veteran did not use any assistive devices as a normal mode of locomotion. The Board finds that a rating in excess of 20 percent is not warranted neither under the current nor former rating criteria. The Veteran’s thoracolumbar disability has not manifested in incapacitating episodes having a total duration of least four weeks but less than six weeks during the past 12 months nor did it result in forward flexion limited to 30 degrees or less or ankylosis of the thoracolumbar spine, including consideration of additional limitations after repetitive use and during flare-ups. VA examination reports show the Veteran’s forward flexion of the thoracolumbar spine exceeded 30 degrees and the Veteran did not suffer from favorable ankylosis of the entire thoracolumbar spine. The Veteran’s VA and private treatment records during the appeal period have not reported ankylosis nor functional limitations that more nearly approximate limitation of flexion to 30 degrees or less. The Board has also considered whether higher ratings for the Veteran’s lumbar spine disability is appropriate under 38 C.F.R. §§ 4.40, 4.45, and 4.59, and concluded that such is not warranted. The currently assigned 20 percent rating contemplates the Veteran’s painful motion and compensates him accordingly. Assigning an additional 10 percent disability rating under DCs 5003 or 5010 amounts to impermissible pyramiding. Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. The United States Court of Appeals for Veterans Claims specifically discounted the notion that the highest disability ratings are warranted where pain is merely evident as it would lead to potentially “absurd results.” The Board acknowledges that the Veteran exhibited pain upon rest during the January 2018 examination. However, the VA examiner found that there was no decrease in range of motion. Additionally, the Board notes that while the January 2018 VA examiner did not provide range of motion estimates in degrees regarding flare-ups and after repetitive use over time, such is understandable. Notably, while the DBQ examiner did not provide range of motion estimates in degrees and with repetitive use over time, the Veteran was able to perform repetitive-use testing with repetitions and the noted range of motion estimates in degrees after repetitive use over time were the same as the motions prior to repetitive use testing. In addition to testing, the Veteran had been asked to describe functional loss and impairment in various situations and he had not identified that he has loss of motion to the degree required for a higher rating in excess of 20 percent. The Board acknowledges the Veteran’s reports of flare-ups during the January 2013 and January 2018 VA examinations. All procurable data was solicited from the Veteran regarding flare-ups regarding frequency, duration, characteristics, severity, and functional loss. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). As to the lay statements describing flare-ups manifesting as occasional low back pain, the evidence does not demonstrate additional functional limitation more closely approximating the criteria for a higher rating. Furthermore, even when considering functional loss due to flare-ups, the Veteran’s forward flexion measured 40 degrees. As such, there is no basis for the assignment of additional disability due to pain, weakness, fatigability, or incoordination. The Board has also considered the lay statements that the Veteran’s back disability warrants a higher rating and acknowledges that the Veteran is competent to report symptoms of back pain. Layno v. Brown, 6 Vet. App. 465 (1994). However, the lay evidence of record does not indicate functional limitations that more nearly approximate limitation of flexion to 30 degrees or less. To the extent that the Veteran has reported limitation of flexion, the Board finds probative the specific findings of the 2013 and 2018 VA examiners that provided detailed findings regarding the extent of the Veteran’s limitations of range of motion. VA examinations and medical records do not show that the Veteran has been prescribed any bed rest to treat his lumbar spine disability during the course of his appeal, and there is no contention to the contrary. As such, a higher rating based upon incapacitating episodes is not warranted. Finally, the Board also acknowledges that Note (1) to the General Rating Formula for Diseases and Injuries of the Spine provide for separate rating(s) for associated neurologic impairment. The VA examiners also found that the Veteran did not suffer from radiculopathy of the lower extremities, and a separate compensable rating for neurological manifestations is not warranted. 2. Entitlement to a disability rating greater than 20 percent for residuals of a left femur fracture Next the Veteran is seeking a rating greater than 20 percent for his left femur disability, which has been rated in accordance with DC 5255. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised Diagnostic Codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021, and the criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, DC 5255 assigned a 30 percent rating upon evidence of the following: Malunion of the femur with marked knee or hip disability. As of February 7, 2021, under the amended criteria, impairment of the femur may be evaluated under DC 5255 or 5256, 5257, 5260, or 5261 for the knee, or 5250-5254 for the hip, whichever results in the highest evaluation. DC 5256 provides 30 percent disability rating for ankylosis of the knee, favorable angle in full extension, or in slight flexion between 0 and 10 degrees. DC 5257 provides a 30 percent disability rating for recurrent subluxation or lateral instability, DC 5257 provides a 30 percent disability rating for recurrent subluxation or lateral instability, unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., canes, crutches, walkers) and bracing for ambulation. DC 5260 provides a 30 percent disability rating for leg flexion limited to 15 degrees. DC 5261 provides a 30 percent disability rating for leg extension limited to 20 degrees. DC 5250 provides a 60 percent for favorable hip ankylosis resulting in flexion at an angle between 20 and 40 degrees, and slight adduction or abduction. DC 5252 provides a 30 percent disability rating for thigh flexion limited to 20 degrees. DCs 5251 and 5253 are inapplicable because they provide a maximum 10 percent disability later for limitation of extension and abduction, respectively. DC 5254 provides an 80 percent disability rating for fracture of the shaft or anatomical neck of the femur with nonunion, with loose motion (spiral or oblique fracture). The evidence does not demonstrate that a rating in excess of 20 percent is warranted under the current nor former rating criteria for DC 5255 at any time during the period on appeal. Rather, August 2010, January 2013, and January 2018 examiners recorded no malunion of the femur, and this symptom is not otherwise present throughout VA treatment records. Although the Veteran has reported pain related to his disability, the January 2018 examiner declined to report a marked hip disability as a result thereof. Instead, the Veteran reports minimal functional impairment due to his symptoms, including pain when walking. Furthermore, January 2013 and January 2018 examiners noted the Veteran had normal left hip range of motion with no evidence of pain with weight bearing, localized tenderness or pain on palpation of the joint, nor evidence of abnormal bone or joint. The Veteran completed at least three repetitions without additional loss of function or ROM after three repetitions. The Veteran showed normal muscle strength. The examiner found no evidence of ankylosis, muscle atrophy, or malunion or nonunion of the femur, flail hip joint, or leg length discrepancy. The examiner found no pain during passive ROM testing or during non-weight bearing. The Veteran did not use any assistive devices as a normal mode of locomotion. The examiner opined that the Veteran’s femur disability did not impact his ability to perform any type of occupational task. All procurable data was solicited from the Veteran regarding flare-ups regarding frequency, duration, characteristics, severity, and functional loss. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). As to the lay statements describing flare-ups, the evidence does not demonstrate additional functional limitation more closely approximating the criteria for a higher rating. Furthermore, even when considering functional loss due to flare-ups, the Veteran only described minimal functional impairment. As such, there is no basis for the assignment of additional disability due to pain, weakness, fatigability, or incoordination. As such, the Veteran has not presented with malunion of the left femur productive of a marked disability, ankylosis of the knee, favorable angle in full extension, or in slight flexion between 0 and 10 degrees, recurrent subluxation or lateral instability, unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., canes, crutches, walkers) and bracing for ambulation, or fracture of the shaft or anatomical neck of the femur with nonunion, with loose motion. Accordingly, the disability picture as presented does not support the criteria for a disability rating greater than 20 percent under the current or former DC 5255 requirements. 3. Entitlement to a disability rating greater than 10 percent for a painful scar of the left thigh and an initial compensable rating for a linear scar of the left thigh The Veteran asserts entitlement to a rating greater than 10 percent for a painful scar of the left thigh under DC 7804. Pursuant to the rating schedule, a 10 percent rating is assigned for one or two scars that are unstable or painful. A 20 percent rating is assigned for three or four scars that are unstable or painful. A 30 percent rating is assigned for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. DC 7804 includes three note provisions: Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): 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): Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. Under DC 7805, other scars, including linear scars, and other effects of scars evaluated under DCs 7800, 7801, 7802, and 7804, any disabling effect(s) not considered in a rating provided under DCs 7800 through 7804 will be evaluated under an appropriate DC. 38 C.F.R. § 4.118, DC 7805. Effective as of August 13, 2018, the phrase “including linear scars” was deleted from DC 7805; otherwise, the criteria remain the same. 38 C.F.R. § 4.118, DC 7805. Where there is a question as to which of two disability evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of, or overlapping with, the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran underwent a VA examination in January 2018. The examiner noted one linear scar on the Veteran’s left thigh measuring 30 cm. The examiner stated that the Veteran’s scar is not painful, unstable, nor due to burns. The examiner noted that the scar does not limit function, nor were there any other pertinent physical findings, complications, conditions, signs or symptoms (such as muscle or nerve damage) associated with the scar. Considering the above findings, the preponderance of the evidence is against the Veteran’s claim for a rating greater than 10 percent for a painful scar on the left thigh or an initial compensable rating for a linear scar. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). For these reasons, the claim is denied. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mohammad Mahmoudi, 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.