Citation Nr: 21013596 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 14-31 942A DATE: March 9, 2021 ORDER Entitlement to an increased rating for scars on the left hand and bilateral hips is denied. REMANDED Entitlement to service connection for a lumbosacral strain is remanded. FINDING OF FACT The Veteran’s left hand and bilateral hip scars involve an area less than 144 square inches, are not associated with underlying soft tissue damage, are not painful or unstable, and do not result in limitation. CONCLUSION OF LAW The criteria for an initial compensable rating for left hand and bilateral hip scars are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2005 to May 2008. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision from a Department of Veteran’s Affairs (VA) Regional Office (RO) granting service connection for left hand and bilateral hip scars but denied service connection for a lumbosacral strain and a lung condition. The Board remanded this issue in May 2018 for further development. While on appeal, the RO granted service connection for the Veteran’s claimed lung condition. This is considered a full grant of the benefits sought on appeal. As a result, the only issues currently before the Board are entitlement to an increased rating for the left hand and bilateral hip scars and entitlement to service connection for a lumbosacral strain. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Entitlement to an increased rating for scars on the left hand and bilateral hips. In September 2010, VA granted entitlement to service connection for left hand and bilateral hip scars and assigned a noncompensable rating effective May 2008. The Veteran disagreed with the rating assigned and perfected this appeal. The Veteran generally asserts that the current rating does not adequately reflect the severity of his disability. In an October 2010 notice of disagreement, he requested his rating be reevaluated because his scars were, “painful and itchy.” VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, Diagnostic Code 7801, was for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear. Under these criteria, a scar with an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrants a 10 percent rating. A scar with an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) warrants a 20 percent rating. A scar with an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) warrants a 30 percent rating. A scar with an area or areas of 144 square inches (929 sq. cm.) or greater warrants a 40 percent rating. 38 C.F.R. § 4.118. Prior to August 13, 2018, Note 1 to Diagnostic Code 7801 instructed that a deep scar is one associated with underlying soft tissue damage. Id. Since August 13, 2018, a 10 percent rating is assigned for burn scars or scars due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. Diagnostic Code 7801 was otherwise unchanged by the August 13, 2018 amendments. Prior to August 13, 2018, Diagnostic Code 7802, was for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that were superficial and nonlinear. Under these criteria, a scar with an area or areas of 144 square inches (929 sq. cm.) or greater warrants a 10 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7802 instructed that a superficial scar was one not associated with underlying soft tissue damage. Id. Since August 13, 2018, Diagnostic Code 7802 is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7802 was otherwise unchanged by the August 13, 2018 amendments. A 10 percent rating is assigned when there are one or two scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note (1). Diagnostic Code 7804 was not changed by the August 13, 2018, amendments. Any disabling effects not considered in a rating under diagnostic codes 7800-04 should be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. Diagnostic Code 7805 was not changed by the August 13, 2018, amendments. Service treatment records show that in July 2006, the Veteran was in a motor vehicle accident that resulted in a fracture to his left hand and both hips. The Veteran underwent surgery shortly after for a left hand and bilateral hip repair. During an August 2010 VA examination, the examiner stated the left hand and both hip scars were, “well healed, nontender to [palpation], without excessive keloid or indentation, no drainage or ulcers, and was only mildly hyperpigmented.” When asked to capture the Veteran’s current scar complaints and symptoms, the answers for pain and skin breakdown were “No.” The examiner measured the left had scar to be 3/8 of an inch wide by 2 inches long. The right hip scar was measured to be ½ inch wide by 10 inches long while the left hip scar was measured to be ½ inch wide and 2 inches long. In his October 2010 notice of disagreement, the Veteran stated that his scars were painful and itchy. The Veteran also underwent a VA scar examination in October 2019. The physical examination showed the left-hand scar to be “well healed, no problem.” However, while the examiner noted the bilateral hip scars to be well healed, the Veteran stated that his bilateral hip scars were sometimes itchy and irritated. However, the Veteran specifically denied any pain in the scars and the examiner stated they were stable. The examiner also stated that none of the scars have any underlying tissue damage to include adherence to or missing underlying soft tissue, as well as no elevation or depression of the scar. The left hand and bilateral hip scars involve an area more than six square inches and are superficial and linear. However, the area is far less than 144 square inches and there is no evidence of any underlying soft tissue damage in the Veteran’s record. As a result, there is no basis for assigning a compensable rating under Diagnostic Codes 7801 or 7802 under the old or new regulations. The Veteran’s assertion that his scars were painful are acknowledged. The Veteran is competent to report on the observable symptoms he is experiencing, to include pain. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran, however, has had multiple examinations which consistently indicate the scar is not painful or unstable. Additionally, the Veteran has not indicated in his VA outpatient records that his scars were painful. The Veteran's report of pain is internally inconsistent with his reports on examinations, making it less credible and therefore less probative. “[T]he Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.” Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). The denials of pain at the VA examinations are more credible than the lay report of pain, as they are consistent both with each other and with the other evidence of well-healed hip and hand injuries. There is no evidence of limitation of function attributable to the scar, including due to itchiness. Thus, a compensable rating under Diagnostic Codes 7804 or 7805 is not warranted. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 4.3. The claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for a lumbosacral strain is remanded. In August 2010 the Veteran was given a VA examination for his lumbosacral sprain. In this examination the Veteran stated that he started having lower back pain about a year prior to the examination. The Veteran asserted that this pain was caused by his right leg being shorter than his left leg. The examiner stated that the Veteran’s left leg was 34 inches long while the Veteran’s right left was only 33 inches long. In relevant part, the Veteran is currently service connected for right lower polyneuropathy, a right ankle fracture status post internal repair, and a left and right hip fracture status post internal repair due to a motor vehicle accident while in service. However, in an October 2019 VA examination the examiner concluded there was no positive nexus between the Veteran’s back disability and service. The examiner stated in total, “Veteran reports his chronic low back pain began prior to service. He believes it is due to a leg length discrepancy.” This is an incorrect statement of the facts as the Veteran stated in the August 2010 exam that the pain began one year prior to that examination, in other words, about 2009. As a result, the RO asked for an addendum opinion for a more complete rationale. In the July 2020 addendum opinion, the examiner stated that back condition was not connected to the Veteran’s active service. The examiner further stated in reference to the Veteran’s assertion his lower back pain was a result of his leg length differential, that on the day of this examination, there was no leg length discrepancy. The examiner did not give an opinion as to whether the Veteran’s current lower back pain is a result of the leg length discrepancy because he did not find a length discrepancy. As there is an inconsistency between the August 2010 examination and the July 2020 addendum opinion regarding the Veteran’s leg length, a new VA examination is required to reconcile the opinions. See generally 38 U.S.C. § 3.159(c). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his lumbosacral strain disability with a different examiner than the July 2020 examination. The examiner must review the claims file paying special attention to the August 2012 and July 2020 VA examination. The examiner should measure both of the Veteran’s legs to determine if there is a discrepancy in length between the left and right leg. Please provide the measurements in the examination report. If the examiner finds that there is a discrepancy, then the examiner is asked to provide a response to the following: (a.) Is the lumbosacral sprain, to include the Veteran’s current lower back pain, at least as likely as not proximately due to the difference in length between his left and right legs? (b.) Is the lumbosacral strain, to include the Veteran’s current lower back pain, at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the difference in length between his left and right legs? LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, S. Conti 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.