Citation Nr: 21022107 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-19 945 DATE: April 14, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for residuals, amputation, left ear lobe for the entire period on appeal is denied. Entitlement to a disability rating of 10 percent, but no higher, for the period from December 16, 2010 to October 26, 2020 for a painful scar of the left earlobe is granted. Entitlement to a disability rating in excess of 20 percent for a painful scar of the left earlobe for the period from October 27, 2020 onward is denied. FINDINGS OF FACT 1. The weight of the evidence is against a finding that at any point during the period on appeal the Veteran’s residuals, amputation, left ear lobe manifested as visible or palpable tissue loss and either gross distortion or assymetry of two features or paired sets of features, or with four or five characteristics of disfigurement; or as visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features or with six or more characteristics of disfigurement. 2. The evidence is at least in equipoise as to whether the Veteran’s left earlobe scar was painful for the period from December 16, 2010 to October 26, 2020. 3. The weight of the evidence is against a finding that the Veteran’s left earlobe scar manifested as three or four scars that are unstable or painful for the period from October 27, 2020 onward. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 30 percent for residuals, amputation, left ear lobe for the entire period on appeal have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.118. 2. The criteria for entitlement to a disability rating of 10 percent, but no higher, for the period from December 16, 2010 to October 26, 2020 for a painful scar of the left earlobe have been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.118. 3. The criteria for entitlement to a disability rating in excess of 20 percent for a painful scar of the left earlobe for the period from October 27, 2020 onward have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.118. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from August 1980 to August 1983. This claim comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that granted entitlement to service connection for residuals of a left ear lobe amputation scar and assigned an initial a disability rating of 0 percent. The Veteran timely initiated and perfected an appeal of the July 2011 rating decision and in July 2019 the Board remanded the Veteran’s claim to obtain a new VA examination to determine the nature and severity of his left ear lobe residuals throughout the period on appeal. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran was afforded a VA examination in October 2020, and an addendum opinion to the October 2020 examination was obtained in November 2020. The Board finds that there has been substantial compliance with its remand directives. In light of the findings and opinions of the October 2020 and November 2020 VA examiners, the RO assigned the Veteran an initial disability rating of 30 percent for his residuals, amputation, left ear lobe, effective the date of his December 2010 claim. Further, the RO assigned a separate disability rating of 20 percent for additional symptoms associated with the Veteran’s left ear lobe scar, effective October 27, 2020. VA has a “well-established” duty to maximize a Veteran’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). As the highest possible rating has not been assigned for the periods on appeal, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). The Board concludes that an appropriate rating of all of the Veteran’s symptoms are an implicit part of his original December 2010 claim, and thus the matter of an appropriate separate rating for additional symptoms associated with the Veteran’s left earlobe scar for the entire period on appeal is currently before the Board. Thus, the claims currently before the Board are entitlement to a disability rating in excess of 30 percent for residuals, amputation, left ear lobe for the entire period on appeal; entitlement to a compensable disability rating for a painful scar of the left earlobe prior to October 27, 2020; and entitlement to a disability rating in excess of 20 percent for a painful scar of the left earlobe for the period from October 27, 2020 onward. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In evaluating a claim for disability benefits, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. An April 1982 note in the Veteran’s service treatment records (STRs) reflect that the Veteran’s left ear lobe was “amputated,” reportedly by a human bite. At a February 2011 VA examination, the examiner noted a 3 cm by.25 cm scar on the Veteran’s left ear. The Veteran reported frequent pain and skin breakdown of his scar. At his March 2019 Board hearing the Veteran testified that he experienced pain, and scaly, flaky skin associated with his left earlobe scar. In October 2020 a VA examiner noted a 4 cm by.3 cm scar on the Veteran’s left ear. The Veteran reported that his scar was painful, and that it had worsened since the onset of the disability. The examiner noted that the Veteran’s scar was tender to palpation. In November 2020 a VA examiner noted that there was approximately 1.2 square cm of total missing underlying soft tissue, and that this tissue had been missing since the initial injury in 1982. 1. Entitlement to a disability rating in excess of 30 percent for residuals, amputation, left ear lobe for the entire period on appeal is denied. The Veteran’s residuals, amputation, left ear lobe has been rated under Diagnostic Code 7800 for scars of the head, face, or neck. They are currently rated as 30 percent disabling for the entire period on appeal. A disability rating of 50 percent requires a showing of visible or palpable tissue loss and either gross distortion or assymetry of two features or paired sets of features, or with four or five characteristics of disfigurement. A disability rating of 80 percent requires a showing of visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features or with six or more characteristics of disfigurement. Note 1 to Diagnostic Code 7800 lists 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 5 specifies that the characteristics of disfigurement may be caused by one scar or by multiple scars, and need not be caused by a single scar to qualify for that evaluation. In light of the evidence discussed above, the Board finds that the Veteran’s residuals, amputation, left ear lobe have not manifested as, or most closely approximated, visible or palpable tissue loss and either gross distortion or assymetry of two features or paired sets of features, or with four or five characteristics of disfigurement; or as visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features or with six or more characteristics of disfigurement, at any point during the period on appeal. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Here, the Board finds that the weight of the evidence is against the application of an evaluation in excess of 30 percent for the Veteran’s residuals, amputation, left ear lobe; thus, there is no question to resolve and the lower rating is appropriate. Id. In light of the foregoing, a grant of a disability rating in excess of 30 percent for residuals, amputation, left ear lobe for the period on appeal is not warranted. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.118. Finally, in reaching the above conclusion, the Board notes that the rating criteria for scars was revised in August 2018, during the appeal period. However, in pertinent part, the revision only refined the syntax for scars under Diagnostic Code 7801 and 7802, and it did not change the criteria substantively. Thus, no version of the criteria in effect during the appeal supports a higher evaluation. 2. Entitlement to a disability rating of 10 percent, but no higher, for the period from December 16, 2010 to October 26, 2020 for a painful scar of the left earlobe is granted; entitlement to a disability rating in excess of 20 percent for a painful scar of the left earlobe for the period from October 27, 2020 onward is denied. As noted above, the Veteran has been assigned a separate, compensable rating for a painful and/or unstable scar under diagnostic code 7804. The Veteran’s disability is currently rated as 20 percent disabling under Diagnostic Code 7804 for the period from October 27, 2020 onward. Under Diagnostic Code 7804 a 10 percent rating requires a showing of one or two scars that are unstable or painful; a 20 percent rating requires a showing of three or four scars that are unstable or painful; and a disability rating of 30 percent requires a showing of five or more scars that are unstable or painful. As discussed above, the Veteran has a single scar on his left earlobe. He reports that this scar is painful, and stated as such to the February 2011 VA examiner. Laypeople are competent to report symptoms and experiences observable by their senses, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Further, the October 2020 examiner noted that the Veteran’s scar was tender to palpation. The Board finds that the evidence is at least in equipoise as to whether the Veteran’s single left ear lobe scar was painful for the period from the date of his December 2010 claim to October 26, 2020. Accordingly, consistent with VA’s obligation to resolve the benefit of the doubt in favor of the Veteran, the Board concludes that the criteria for a disability rating of 10 percent for a painful or unstable left ear lobe scar are met for the period from December 16, 2010 to October 26, 2020, and the same is hereby granted. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.118. With respect to the period from October 27, 2020 onward, the Board finds that the weight of the evidence is against a finding that the Veteran has three or more scars that are unstable or painful. The Veteran has not claimed any scars other than his single left earlobe scar, and the record does not reflect that he is service connected for any other scars. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Here, the Board finds that the weight of the evidence is against the application of an evaluation in excess of 20 percent for the Veteran’s painful left earlobe scar; thus, there is no question to resolve and the lower rating is appropriate. Id. In light of the foregoing, a grant of a disability rating in excess of 20 percent for a painful left earlobe scar for the period from October 27, 2020 onward is not warranted. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.118. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. C. Sametshaw 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.