Citation Nr: 21015364 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-50 513 DATE: March 17, 2021 ORDER An initial disability rating in excess of 10 percent for linear and nonlinear left index finger scars is denied. FINDING OF FACT The Veteran has two painful left index finger scars; three or four scars that are unstable or painful, one or more scars that are painful and unstable, and scars that are deep and nonlinear, covering an area of at least 12 square inches (77 sq. cm) but less than 72 square inches (465 sq. cm) have not been shown. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for linear and nonlinear left index finger scars have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.14, 4.118, Diagnostic Code (DC) 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1979 to November 1982. The Board notes that in addition to the Veteran’s claims seeking increased disability ratings for linear and nonlinear left index finger scars and nonlinear left index finger scars, he filed claims seeking service connection for a back disorder, a right knee disorder, and a left ankle disorder. The claims of service connection for back, right knee, and left ankle disorders were granted by a December 2020 rating decision. The Veteran has not filed a notice of disagreement with the ratings assigned to those disabilities, nor has he contested the effective date for the grant of service connection for those disabilities. Accordingly, those claims are no longer on appeal. The Board also notes that in the December 2020 supplemental statement of the case, the RO combined the Veteran’s linear left index finger scar with his nonlinear left index finger scar disabilities and assigned a 10 percent disability rating to the combined scars because both scars involved the same finger, were on the same extremity, and were both painful and tender, and because neither scar was unstable. The Board agrees with the RO’s determination as the assignment of two separate ratings for the same “disability” or the same “manifestations” under various diagnoses is not allowed. See 38 C.F.R. § 4.14. Increased Rating The Veteran contends that he is entitled to an initial disability rating in excess of 10 percent for linear and nonlinear left index figure scars and an initial compensable disability rating for nonlinear left index finger scars. Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board notes that during the appeal period, VA amended its regulations governing skin disabilities effective August 13, 2018. However, the criteria for rating scars under applicable DCs did not change. 1. Entitlement to an initial disability rating in excess of 10 percent for linear and nonlinear left index finger scars The Veteran is currently assigned an initial 10 percent disability rating for his service-connected linear and nonlinear left index finger scars under 38 C.F.R. § 4.118, DC 7804. In order to warrant a rating in excess of 10 percent for a scar, the evidence must show that the scar is, or the scars are: • Deep and nonlinear covering an area or areas of at least 12 square inches (77 sq. com) but less than 72 square inches (465 sq. cm) (20 percent under DC 7801); • Three of four in number that are unstable or painful (20 percent under DC 7804); or, • One or two in number that are unstable and painful (20 percent under DC 7804, Note (2)). 38 C.F.R. § 4.118. After a review of the evidence of record, the Board concludes that an initial disability rating in excess of 10 percent for the Veteran’s linear and nonlinear left index finger scars is not warranted because the evidence fails to show that his scars are deep and nonlinear, covering an area of at least 12 square inches, but less than 72 square inches, that he has three or four painful or unstable scars, or that he has any scars that are both painful and unstable. Specifically, the report from the August 2014 VA examination reflects that the Veteran had one linear scar that measured 2 cm in length and .2 cm in width and two superficial nonlinear scars that measured 1 cm in length and .5 cm in width and 2 cm in length and .5 cm in width, all of which were located on the left index finger. The August 2014 VA examination report also reflects that only one of his scars left index finger scars was painful and that none of his left index finger scars were both painful and unstable. The report from the August 2016 VA examination reflects that the examiner observed that the Veteran had one linear scar that measure 2 cm in length and one nonlinear scar that measured 1 cm in length and .5 cm in width, both of which were located on his left index finger. The August 2016 VA examination report also reflects that only one of the two scars was painful and that neither scar was both painful and unstable. The report from the November 2020 VA examination reflects that he had one linear scar that measured 3 cm in length and .25 cm in width and one nonlinear scar that measured 2 cm in length and .25 cm in width, both of which were located on his left index finger. The November 2020 VA examination reports also reflects that both of his left index finger scars were painful, but that neither scar was both painful and unstable. Given that these VA examinations do not show that his left index finger scars are both painful and unstable, that he has three or four painful or unstable left index finger scars, or that his left index finger scars cover an area of at least 12 square inches, but less than 72 square inches, the August 2014, August 2016, and November 2020 VA examinations fail to show that an initial disability rating in excess of 10 percent is warranted for his left index finger scars. Additionally, the Veteran’s treatment records do not show that an initial disability rating in excess of 10 percent is warranted for his left index finger scars because they do not show that his left index finger scars are both painful and unstable, three or four in number that are either painful or unstable, or that they cover an area of at least 12 square inches, but less than 72 square inches. The Board has also considered whether a higher rating is warranted for his linear and nonlinear left index finger scars under DC 7805 for “other” scars, which are to be rated based on limitation of function of the part affected. Here, the August 2014, August 2016, and November 2020 VA examiners noted that the Veteran had no other pertinent physical findings, complications, signs, or symptoms. Moreover, there is no evidence that these scars cause any other disabling effects that would warrant an initial disability rating in excess of 10 percent. Therefore, a rating under DC 7805, or any other relevant DC is not for application. In considering the appropriate disability rating for the Veteran’s left index finger scars, the Board has also considered the statements from the Veteran that his scars are worse than the rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Although the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through her senses, he is not competent to identify a specific level of disability of his scars according to the appropriate DCs. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s left index finger scars has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with their evaluations. The medical findings of the August 2014, August 2016, and November 2020 VA examiners (as provided in the examination reports) directly address the criteria under which his scars are evaluated, and the Board finds the examiners assessment of greater probative weight. By virtue of the foregoing, the Board concludes that an initial disability rating in excess of 10 percent for the Veteran’s linear and nonlinear left index finger scars is not warranted.   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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Crosnicker, Associate Counsel