Citation Nr: 21014271 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-46 151 DATE: March 11, 2021 ORDER Entitlement to an increased rating in excess of 30 percent for residual scars, post multiple inner ear surgeries associated with otitis media, rated as disfigurement of the head, face, or neck, is denied. Entitlement to a rating in excess of 20 percent for residual scars, post inner surgeries associated with otitis media, rated as painful and unstable scars, is denied. FINDINGS OF FACT 1. The Veteran’s residual scars are not manifest by visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; four or five characteristics of disfigurement. 2. The Veteran’s residual scars have not manifested at any one point as more severe than either one scar that is stable but painful and one scar that is unstable and painful, or a single scar that is both painful and unstable. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for residual scars, post multiple inner ear surgeries associated with otitis media, 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 disability rating in excess of 20 percent for residual scars, post inner surgeries associated with otitis media, have not 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 served on active duty with the Air Force from June 1994 to June 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter is on the Board’s legacy appeal docket. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in January 2019. A transcript of the proceeding has been associated with the claims file. Increased Rating 1. Entitlement to an increased rating in excess of 30 percent for residual scars, post multiple inner ear surgeries associated with otitis media, rated as disfigurement of the head, face, or neck The Veteran contends that she is entitled to a higher rating because she states her scars are larger and more disabling than is recognized by her current 30 percent rating. The Veteran’s residual scar, post multiple inner ear surgeries associated with otitis media (left ear scars) are rated under Diagnostic Code 7800, for burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7800 was not changed by the August 13, 2018, 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. Note 2 instructs the rater to rate tissue loss of the auricle under DC 6207 (loss of auricle). Id. Note 5 states that the characteristics of disfigurement may be caused by one scar or by multiple scars; the characteristics required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. Id. Under Diagnostic Code 6207, a 10 percent rating is warranted for deformity of one auricle, with loss of one-third or more of the substance; a 30 percent rating is warranted for complete loss of one auricle; and a 50 percent rating is warranted for loss of both auricles. 38C.F.R. §4.87. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 30 percent under Diagnostic Code 7800 because the Veteran does not have visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired set of features, or; four or five characteristics of disfigurement. VA provided examinations in September 2015, February 2016, and June 2016 to evaluate the Veteran’s ear conditions, but not specifically to evaluate scars or disfigurement. The September 2015 and February 2016 examiners noted the Veteran’s left ear auricular and posterior auricular area were deformed as a result of surgery, leaving her left ear flattened against her head when compared to the right ear. Scars were noted on exam but not counted or measured. In April 2016 a VA examiner reviewed the Veteran’s medical records without examining her and noted one scar in the left post auricular area measuring 2.5 x 0.75 cm. There were no other characteristics of disfigurement noted. The June 2016 examiner noted deformity of the left auricle with loss of less than one third of the substance and a well healed 1 cm diameter deep fissure/groove located in the left post-auricular area. They identified and measured three scars as follows: located posterior to left auricle, Scar 1 - 5.0 x 0.3 cm; Scar 2 - 3.0 x 0.2 cm; and anterior to the left auricle, Scar 3 - 1.5 x 0.2 cm. All scars were described as well healed, linear, superficial, and non-tender. In January 2017 VA provided an examination to determine the severity of the Veteran’s scars and disfigurement. The examiner stated that the Veteran’s scars were the result of multiple surgeries, the most recent of which was in December 2016. They identified and measured three scars as follows: located behind the left ear, Scar 1 - 8.0 x 0.20 cm; located inside the left ear, Scar 2 - 2.0 x 0.20 cm; and on the pinna of the left ear, Scar 3 - 2.0 x 0.20 cm. All three scars had elevation, depression, adherence to underlying tissue, or missing underlying soft tissue. All three had abnormal pigmentation or texture. Only Scar 1 was tender to palpation and unstable with occasional leakage and crusting. Deformity of the left auricle was noted with loss of less than one third of the substance, causing a “pinned back” look of the lower aspect of the left pinna. In written submissions and at her January 2019 Board hearing the Veteran has stated that she has at least eight incisions behind her left ear, each three to four inches long. In March 2020 VA provided an examination to determine the severity of the Veteran’s scars and disfigurement. The examiner identified and measured three scars of the head, face, and neck as follows: located behind the left ear, Scar 1 - 9.0 cm x 1.0 cm, stable but tender with hypopigmentation; located inside the left ear, Scar 2 - 2.0 x 1.0 cm, with underlying soft tissue missing; and located behind the left ear, Scar 3 - 1.0 x 1.0 cm, with underlying soft tissue missing. They noted characteristics disfigurement including a 9 cm area of hypopigmentation, a 3 cm area of missing underlying tissue, and loss of less than one third of the left auricle substance causing a pinned back look of lower aspect of the left pinna. The preponderance of the evidence consistently shows the Veteran has at least one scar with visible or palpable tissue loss and asymmetry of her ears due to the “pinned back” look of her left ear when compared to her right. There is no evidence of gross distortion or assymetry of any other feature or paired set of features. While measurements have varied, she appears to have at most a single scar 1/4 inch (0.64 cm) wide at its widest. She has no scars measuring five inches or more in length. While the January 2017 examiner noted scars with “elevation, depression, adherence to underlying tissue, or missing underlying soft tissue” and failed to specify which of these was present, no other examiner noted elevation, depression, or adherence to underlying tissue, and the March 2020 examiner noted areas of loss of underlying tissue. The Board therefore finds that the preponderance of the evidence is against finding that the Veteran’s scars were elevated, depressed, or adhering to underlying tissue. The Veteran has hypopigmentation of only a 9 cm area, and underlying soft tissue missing in an area of only 3 cm, both well under 6 inches (15.24 cm). The Veteran does not have abnormal skin texture or skin indurated and inflexible in areas exceeding 6 inches. Applying the criteria of Diagnostic Code 7800, the Veteran’s highest appropriate rating is 30 percent for a scar with visible or palpable tissue loss and asymmetry of paired set of features. She has only one characteristic of disfigurement, a scar at least 1/4 inch wide. A 50 percent rating would require either gross distortion or asymmetry of a second feature or paired sets of features or three more characteristics of disfigurement. The Board has considered Note 2 of Diagnostic Code 7800, which instructs that auricle loss of the tissue should be rated under Diagnostic Code 6207. Based on the medical evidence, the Veteran would be entitled to at most a 10 percent rating for deformity of the left ear. While the Veteran is already service-connected for deformity of the auricle, a compensable evaluation would violate the rule against pyramiding as she is also in receipt of a 30 percent rating under Diagnostic Code 7800 for the same condition. 38 C.F.R. § 4.14. Additionally, the 30 percent rating under Diagnostic Code 7800 for the deformity of the auricle is more advantageous to the Veteran. The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran’s service connected scars are of the head, face, and neck. Therefore, Diagnostic Codes 7801 and 7802, both prior to and from August 13, 2018, are inapplicable. The Veteran has a separate rating, discussed in the next section of this decision, under Diagnostic Code 7804. Finally, the evidence of record shows there are no other disabling effects not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include pain and leakage, and her reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, she does not assert, and medical records do not show, that the Veteran’s left ear scars are manifest by visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired set of features, or; four or five characteristics of disfigurement. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 30 percent for left ear scars. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a rating in excess of 20 percent for residual scars, post inner surgeries associated with otitis media, rated as painful and unstable scars The Veteran contends that she is entitled to a higher rating because she states her residual scars, post inner surgeries associated with otitis media scars (left ear scars), are larger and more disabling than is recognized by her current 20 percent rating. The Veteran’s residual scars are rated under Diagnostic Code 7804 for unstable or painful scars. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7804 was not changed by the August 13, 2018, amendments. Under Diagnostic Code 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating. Three or four scars that are unstable or painful scars warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. Note 2 instructs that if one or more scars are both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. Id. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent under Diagnostic Code 7804 because the Veteran’s scar is not manifest by five or more scars that are unstable or painful. The Veteran’s medical records, as well as VA examinations of April 2016, June 2016, January 2017, and March 2020, show that the Veteran has had multiple surgeries in the area of her left ear, including between the examinations. Because of this, the examinations at different times have identified different levels of scarring. The Board will therefore consider ratings based on each of the three VA examinations. The April 2016 VA examiner, based only on a review of medical records, identified one scar in the left post auricular area measuring 2.5 x 0.75 cm. This scar was both painful and unstable but was noted to still be open and healing post-surgery in February 2016. The total area covered was 1.9 square centimeters. Applying the criteria of Diagnostic Code 7804, a single painful or unstable scar results in a 10 percent rating, with 10 percent added if one or more scars is both painful and unstable. The current 20 percent rating is therefore appropriate. The June 2016 VA examiner , based on in-person examination of the Veteran, identified and measured three scars as follows: located posterior to left auricle, Scar 1 - 5.0 x 0.3 cm; Scar 2 - 3.0 x 0.2 cm; and anterior to the left auricle, Scar 3 - 1.5 x 0.2 cm. All scars were described as well healed, linear, superficial, and non-tender. The total area covered was 2.4 square centimeters. While a single examination is not sufficient to show long term improvement, applying the criteria of Diagnostic Code 7804 to these results cannot justify an increased 30 percent rating. The January 2017 VA examiner, based on in-person examination of the Veteran, identified and measured three scars as follows: located behind the left ear, Scar 1 - 8.0 x 0.20 cm; located inside the left ear, Scar 2 - 2.0 x 0.20 cm; and on the pinna of the left ear, Scar 3 - 2.0 x 0.20 cm. Only Scar 1 was tender to palpation and unstable with occasional leakage and crusting. The total area covered was 2.4 square centimeters. Applying the criteria of Diagnostic Code 7804, a single painful or unstable scar results in a 10 percent rating, with 10 percent added if one or more scars is both painful and unstable. The current 20 percent rating is therefore appropriate. The March 2020 examiner identified and measured three scars of the head, face, and neck as follows: located behind the left ear, Scar 1 - 9.0 cm x 1.0 cm; located inside the left ear, Scar 2 - 2.0 x 1.0 cm; and located behind the left ear, Scar 3 - 1.0 x 1.0 cm. Scar 1 was stable, but painful. Scar 2 was stable and not painful. Scar 3 was unstable, but not painful. The total area covered was 12 square centimeters. Although service-connection has not been granted for this scar, the examiner also noted a new scar on the Veteran’s abdomen related to her surgery. This scar measured 4.0 cm x 0.2 cm and was stable, but painful. Applying the criteria of Diagnostic Code 7804, a single painful scar and a single unstable scar result in a 20 percent rating. No scars were both painful and unstable. Even if the abdominal scar were to be granted service-connection, it still would not justify an increased 30 percent rating. The current 20 percent rating is therefore appropriate. The Board has also considered the other Diagnostic Codes pertaining to scars. The Veteran’s separate rating under Diagnostic Code 7800 is address in the previous section. Because the Veteran’s service-connected scars are of the head, face, and neck, Diagnostic Codes 7801 and 7802, both prior to and from August 13, 2018, are inapplicable. Finally, the evidence of record shows there are no other disabling effects not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include pain and leakage, and her reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, she does not assert, and medical records do not show, that the Veteran’s left ear scars are manifest by five or more scars that are unstable or painful. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a disability rating in excess of 20 percent for her left ear scars. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Zimmerman 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.