Citation Nr: 21021359 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 17-36 362 DATE: April 12, 2021 ORDER The claim of entitlement to an initial 10 percent evaluation, but no higher, for a left groin subcutaneous soft tissue mass with scar prior to May 14, 2019, is granted. The claim of entitlement to a rating in excess of 10 percent for a left groin subcutaneous soft tissue mass with scar after May 14, 2019, is denied. The claim of entitlement to an initial compensable evaluation for a left eye scar, status-post subcutaneous soft tissue mass excision, prior to May 14, 2019, is denied. The claim of entitlement to an evaluation of greater than 10 percent for a left eye scar, status-post subcutaneous soft tissue mass excision, after May 14, 2019, is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, prior to May 14, 2019, his left groin subcutaneous soft tissue mass with scar exhibited tenderness and pain without additional symptomatology or disfigurement. 2. The preponderance of the evidence of record fails to establish that, after May 14, 2019, the Veteran’s left groin subcutaneous soft tissue mass with scar covered an area of 12 or more square inches, nor did it cause an impairment of function. 3. The preponderance of the evidence of record fails to establish that, prior to May 14, 2019, the Veteran’s left eye scar, status-post subcutaneous soft tissue mass excision, was painful or unstable, nor did it exhibit one or more characteristics of disfigurement. 4. The preponderance of the evidence of record fails to establish that, since May 14, 2019, the Veteran’s left eye scar exhibited two or more characteristics of disfigurement, nor was there visible or palpable tissue loss. The scar was additionally not painful or unstable through this period, nor did it cause impairment of function. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 10 percent, but no higher, for a left groin subcutaneous soft tissue mass with scar prior to May 14, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805, 7818. 2. The criteria for a disability rating in excess of 10 percent for a left groin subcutaneous soft tissue mass with scar since May 14, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805, 7818. 3. The criteria for an initial compensable disability rating for a left eye scar, status-post subcutaneous soft tissue mass excision, prior to May 14, 2019, and in excess of 10 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes 7800, 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Marine Corps from November 1976 to July 1981, and honorable active duty service with the United States Navy from September 1981 to February 1997. The instant matter is on appeal from a December 2014 rating decision. This case has been remanded by the Board for additional development in June 2018 and April 2020. The Board again remanded these issues in December 2020 to ensure that reasonable efforts had been made to obtain any relevant private treatment records. In December 2020, the Regional Office sent a general release to the Veteran for any related private treatment records. The Veteran did not respond, and there is no indication or allegation of nonreceipt. The Regional Office previously attempted to obtain these records in April 2020 without response. Thus, the Board is satisfied that all reasonable efforts were made to obtain relevant private treatment records, and the Regional Office substantially complied with previous remand instructions. Increased Ratings Disability ratings are determined by application of a ratings schedule which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, pyramiding, which is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran’s claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. VA’s determination of the “present level” of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities must be reviewed in relation to their entire history. 38 C.F.R. § 4.1. VA must also interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity. 38 C.F.R. § 4.10. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Functional loss may be due to pain if supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Functional impairment may be due to pain, including during flare-ups, or from repetitive use. Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011). 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 veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. Scars are rated under 38 C.F.R. § 4.118 for ratings of the skin. Diagnostic Code 7800 rates burn scars or other scars of the head, face, or neck. Under that Diagnostic Code, scars with one characteristic of disfigurement warrant a 10 percent rating. Scars 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 warrant a 30 percent rating. Scars 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 warrant a 50 percent rating. Scars with visible or palpable tissue loss and either gross distortion or asymmetry 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 warrant an 80 percent rating. There are eight total characteristics of disfigurement: a scar five or more inches in length; a scar at least one-quarter inch wide at its widest part; surface contour of the scar is elevated or depressed on palpation; a scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches; abnormal skin texture; underlying soft tissue missing in an area exceeding six square inches; and, skin indurated and inflexible in an area exceeding six square inches. Diagnostic Code 7801 rates burn scars or scars due to other causes not of the head, face, or neck, which are associated with underlying soft tissue damage. Scars with an area or areas of at least six square inches but less than 12 square inches warrant a 10 percent rating. Scars with an area or areas of at least 12 square inches but less than 72 square inches warrant a 20 percent rating. Scars with an area or areas of at least 72 square inches but less than 144 square inches warrant a 30 percent rating. Scars with an area or areas of 144 square inches or greater warrant a 40 percent rating. Diagnostic Code 7802 rates scars not of the head, face, or neck, which are not associate with underlying soft tissue damage. A 10 percent rating is warranted for area or areas of 144 square inches or greater. Diagnostic Code 7804 rates scars based on whether they are unstable and/or painful. One or two scars that are unstable or painful warrants a 10 percent rating. Three or four scars that are unstable or painful warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. Under Diagnostic Code 7805, other scars and effects are evaluated under the aforementioned Diagnostic Codes. Diagnostic Code 7818 rates malignant skin neoplasms, other than malignant melanoma, as disfigurement or impairment of function under Diagnostic Codes 7800, 7801, 7802, 7804, and 7805, as applicable. 1. The claim of entitlement to an initial compensable evaluation for a left groin subcutaneous soft tissue mass with scar prior to May 14, 2019 The Veteran asserts that he is entitled to an initial compensable evaluation for his left groin subcutaneous soft tissue mass with scar (hereinafter, “left groin scar”). The Veteran’s left groin scar is presently rated under Diagnostic Code 7804-7819. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. In the present case, Diagnostic Code 7819 assesses the malignant neoplasms under the rating criteria for 7804 for pain or instability of the scar. The Veteran underwent a VA examination in December 2014. He reported developing a lump under his skin in the groin area during service that was removed after discharge. The focus of this examination appears to be on his left eye scar, and measurements were not clearly provided for the left groin scar. Subsequent medical treatment records do not address symptoms associated with the left groin scar. In May 2019, the Veteran underwent another VA examination to more thoroughly assess the severity of his left groin scar. The scar was noted to be painful with some sensation of numbness with palpation. The scar measured two centimeters by two centimeters, and it was not unstable, nor did it exhibit underlying soft tissue damage. The scar did not limit function, nor did it have any other pertinent physical findings or symptoms. In September 2019, the Veteran provided a statement endorsing ongoing pain and tenderness associated with the left groin scar throughout the period on appeal. After a thorough review of the evidence of record, the Board finds that the Veteran is entitled to a 10 percent initial rating for his left groin scar prior to May 14, 2019. The Veteran reported symptoms of pain and tenderness associated with the scar that predated the May 2019 VA examination with the same findings. Unfortunately, the December 2014 VA examination does not appear to have adequately assessed the Veteran’s left groin scar. The Veteran is also competent to report readily observable symptoms related to his scar, including feelings of pain. Thus, the Board finds the Veteran’s report of pain associated with the left groin scar is competent and probative on the issue of pain. Unfortunately, the medical and lay evidence of record does not support a finding of more severe symptomatology associated with the left groin scar such that a rating in excess of 10 percent may be awarded. The scar was not found to be unstable, and it measured just two centimeters by two centimeters, significantly smaller than the scars contemplated by Diagnostic Codes 7801, 7802, and 7805. Accordingly, resolving reasonable doubt in favor of the Veteran, his left groin scar was painful and tender prior to May 14, 2019; thus, an initial rating of 10 percent is warranted. 2. The claim of entitlement to a rating in excess of 10 percent for a left groin scar after May 14, 2019 The Veteran contends that he is entitled to a rating in excess of 10 percent for his left groin scar since May 14, 2019. Medical treatment records from this period do not remark on additional symptomatology associated with the left groin scar. The May 2019 VA examination revealed only that the scar was small, two centimeters by two centimeters, and painful but not unstable. Subsequent medical and lay evidence of record fails to reflect that the scar exhibited more serious symptomatology, including instability, loss of function, adherence to underlying tissue, or covered a larger surface area on his body. Thus, the preponderance of the evidence of record fails to establish that a rating in excess of 10 percent is warranted for the Veteran’s left groin scar after May 14, 2019. The claim must be denied. 3. The claim of entitlement to an initial compensable evaluation for a left eye scar, status-post subcutaneous soft tissue mass excision, prior to May 14, 2019, and in excess of 10 percent thereafter The Veteran asserts that he is entitled to an initial compensable evaluation for a left eye scar, status-post subcutaneous soft tissue mass excision (hereinafter, “a left eye scar”) prior to May 14, 2019, and in excess of 10 percent thereafter. The Veteran’s left eye scar is rated under Diagnostic Code 7800 for a scar of the face. In the December 2014 VA examination, the left eye scar measured 3.5 centimeters by 0.4 centimeters. There was no elevation, depression, adherence to underlying tissue, or missing underlying soft tissue. It was not painful or unstable. It was hypopigmented with an approximate area of 1.4 centimeters squared. It did not cause distortion of facial features. There was no functional impact from the left eye scar. Subsequent medical records do not note additional symptomatology associated with the left eye scar. In May 2019, the Veteran underwent a second VA examination to assess the severity of the left eye scar. The Veteran did not report pain or tenderness associated with this scar. It was not found to be unstable. There was no underlying tissue damage. The scar measured two centimeters by one centimeter without elevation, depression, adherence to underlying tissue, or missing underlying soft tissue. The scar was hyperpigmented with an approximate total area of two centimeters squared. There was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. The scar did not result in limitation of function. After a thorough review of the medical and lay evidence of record, the Board finds that the Veteran is not entitled to an initial compensable rating for his left eye scar, nor a rating in excess of 10 percent since May 14, 2019. (Continued on the next page)   The preponderance of the evidence of record reflects that the scar was small in nature, and remained nonpainful and stable throughout the appellate period. The Veteran did not subjectively report pain associated with this scar either. Prior to May 14, 2019, there were no disfiguring characteristics with this scar, nor was there tissue loss or functional impairment attributable to the scar. In May 2019, the small scar was noted to be hyperpigmented, resulting in the 10 percent rating as cited in the June 2019 Supplemental Statement of the Case. No additional disfiguring characteristics were noted on examination nor identified in his medical treatment records. Thus, heightened ratings under Diagnostic Codes 7800 and 7804 are inapplicable. Thus, the preponderance of the evidence of record fails to establish that an initial compensable rating prior to May 14, 2019, and a rating in excess of 10 percent thereafter is warranted for the Veteran’s left eye scar. The claim must be denied. R. Erdheim Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Fisher, 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.