Citation Nr: 21022311 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-50 146 DATE: April 15, 2021 ORDER A compensable disability rating prior to September 18, 2020 and a rating in excess of 10 percent thereafter for residual scars related to retained fragments of glass, buttocks, back, postoperative injury (“residual scars disability”), is denied. A compensable disability rating for nonlinear scars of the back is denied. FINDINGS OF FACT 1. Prior to September 18, 2020, the Veteran’s residual scars from retained fragments glass of the buttocks, back, postoperative injury, did not manifest in any compensable symptoms, thereafter the scars are painful, but they are not unstable, nor cover an area of at least 39 square centimeters, and they did not result in any additional disabling effects. 2. At no time during the period on appeal did the Veteran’s nonlinear scars of the back manifest in compensable symptoms under Diagnostic Code 7802, to include scars measuring at least 929 square centimeters. CONCLUSIONS OF LAW 1. The criteria for a compensable rating prior to September 18, 2020 and in excess of 10 percent thereafter for residual scars related to retained fragments of glass, buttocks, back, postoperative injury have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.118, Diagnostic Codes 7801, 7802, 7804, 7805. 2. The criteria for a compensable disability rating for nonlinear scars of the back under Diagnostic Code 7802 have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.118, Diagnostic Codes 7801, 7802, 7804, 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to service connection for right leg disability was originally on appeal as well. However, in an October 2020 rating decision, the RO granted service connection for this claim, representing a full grant of benefits. Accordingly, this issue is no longer before the Board. In the October 2020 rating decision, the RO also granted service connection for nonlinear scars of the back and assigned a noncompensable rating as of September 18, 2020. As the increased rating claim for residual scars is on appeal, the Board has jurisdiction over the nonlinear scars of the back as it is part and parcel of the increased rating claim. The only remaining issues on appeal are listed on the title page. The Board acknowledges the statements the Veteran has made regarding his disappointment that the claim on appeal has focused more on the scars and not the more severe symptoms of pain and discomfort related to the shifting and moving of the glass fragments under the scar. See February 2015 notice of disagreement. The Veteran has also stated that he did not have issues with scarring and stated, “my concern is for retention of glass, shrapnel which moves and presses on nerves, muscles resulting in reduced mobility and increased pain.” See October 2016 VA-Form 9. As a result, the Board remanded the matter in June 2019, to afford the Veteran examinations not only for his scars, but for muscle injuries and peripheral neuropathy. Thereafter, the RO granted service connection for peripheral neuropathy of the right lower extremity and service connection for right knee strain in the October 2020 rating decision. The Board notes that the Veteran was diagnosed myofascial pain syndrome during the September 2020 VA examination. To the extent the Veteran contends that this disability is a separate and distinct disability apart from his service-connected disabilities and related to service or any of his service-connected disabilities, he may file a claim. If the Veteran wishes to file a claim for myofascial pain syndrome he is encouraged to do so using the prescribed form which is available at the local Regional Office or online (https://www.ebenefits.va.gov/ebenefits/). Also, if the Veteran contends that his service-connected right knee disabilities warrant higher ratings, he is encouraged to file a timely notice of disagreement to the October 2020 rating decision. The Veteran testified before the undersigned Veterans Law Judge in a June 2019 Travel Board hearing. The Board remanded the matter in June 2019 to afford the Veteran an additional examination. As there has been substantial compliance the directives the Board will proceed with the appeal. Stegall v. West, 11 Vet. App. 268. Contentions The Veteran provided competent testimony describing the current symptoms related to his scars. He testified that his scar is painful, so much so that he would not place his back against the chair during the hearing. Legal Criteria The Veteran’s residual scars disability is rated as noncompensable prior to September 18, 2020 and 10 percent thereafter under Diagnostic Code 7804. The Veteran’s nonlinear scars of the back are rated as noncompensable under Diagnostic Code 7802. During the pendency of the appeal, the criteria for evaluating certain disabilities of the skin were revised, effective August 13, 2018. See 38 C.F.R. § 4.118, (Diagnostic Codes 7801, 7802, 7805, and 7806). The amended regulations are only applicable to claims received on or after August 13, 2018, or where a claimant requests readjudication under the new criteria. See 83 Fed. Reg. 32592 (August 13, 2018) (codified at 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7805, 7806). The Veteran has not specifically requested consideration under the revised criteria of Codes 7801, 7802, 7805, or 7806. However, it is VA’s intent that the 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. As such, and even though the amended regulations are not substantially different from the prior versions and would not result in a different outcome, the Board will consider both versions. Under the amended criteria which became effective on August 13, 2018, Diagnostic Code 7804 was not changed. As such, the Board will discuss this code first. Under Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful, with a maximum 30 percent rating warranted for five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1). 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. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (2). Scars can receive separate evaluations under Diagnostic Codes 7800, 7801, 7802, and 7805, despite also being rated under Diagnostic Code 7804. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (3). Criteria effective prior to the August 13, 2018 revision Under Diagnostic Code 7801, a 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear, at least 6 square inches (39 square centimeters). Id. Higher ratings are available for deep and linear scars that affect a larger area, measuring at least 12 square inches. A deep scar is one associated with underlying soft tissue damage. See 38 C.F.R. § 4.118, Diagnostic Code 7801, Note (1). Under Diagnostic Code 7802, a maximum 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are superficial (not associated with soft tissue damage) and nonlinear, affecting an area or areas of 144 square inches (929 sq. cm.) or greater. Id. Under Diagnostic Code 7805, any other scars, including linear scars, are to be rated based on any disabling effects and the appropriate diagnostic code for such effects. Diagnostic Code 7805 directs that any disabling effect(s) not considered in Diagnostic Codes 7801 through 7804 should be evaluated under the appropriate diagnostic code. This instruction essentially directs that scars may be rated for the functional impairment caused by the scar. Criteria effective from August 13, 2018 After the revision, Diagnostic Code 7801 amended the notes, but the criteria for this code remained the same. The six zones of the body are defined as each extremity, anterior trunk, and posterior trunk. See 38 C.F.R. § 4.118, Diagnostic Code 7801, Note (1). A separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body. See 38 C.F.R. § 4.118, Diagnostic Code 7801, Note (2). Combine the separate evaluations under § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. After the revision, Diagnostic Code 7802 amended the notes, but the criteria for this code remained the same. Note (1) now reads: For the purposes of Diagnostic Code 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Note (2) now reads: A separate evaluation may be assigned for each affected zone of the body. Combine the separate evaluations under § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. After the revision, Diagnostic Code 7805 removed the parentheses but the rating criteria for this code remained the same. The parentheses which noted that linear scars were included was removed. Evidence The January 2014 VA Scars/Disfigurement Disability Benefits Questionnaire (DBQ) reflects two linear scars, appreciated at belt line, low back area. Scar one measured 3cm long. Scar two measured 1 cm long. Both scars were well-healed. There were no scars on the right buttock seen. None of the scars were painful, unstable or had frequent loss of covering of skin, or were due to burns. There were no superficial non-linear scars or deep non-linear scars. None of the scars resulted in limitation of function. The Veteran did not have any other pertinent physical findings, complications, conditions, signs and/or symptoms (such as muscle or nerve damage) associated with any scar, or disfigurement of the head, face, or neck. No photographs were indicated. The examiner concluded that the scars did not impact the Veteran’s ability to work. The Veteran was afforded three VA examinations in September 2020, a Scars/Disfigurement DBQ, a Muscle Injuries DBQ, and a Medical Opinion DBQ. The same VA examiner performed all three of these examinations. The September 2020 Scars/Disfigurement DBQ showed two scars, both painful. The pain was described as mild tenderness with palpation. The scars that were painful were described as the two scars associated with retained fragments glass, buttocks, back, postoperative injury. None of the scars were unstable or had frequent loss of covering of skin over the scar or were due to burns. Scar one measured 3 x 1 cm. Scar two measured 2 x 0.5cm. Scar one was tender to palpation. The approximate total area of the scars of the posterior trunk, without underlying tissue damage, measured 4 cm². None of the scars resulted in limitation of function. The Veteran did not have any other pertinent physical findings, complications, conditions, and or symptoms (such as muscle or nerve damage) associated with any scar or disfigurement of the head, face, or neck. Color photographs of the scars were not indicated. The examiner concluded that the scars impact the Veteran’s ability to work, as he has experienced difficulty in climbing up and down ladders and stairs, difficulty walking and standing for long periods of time, and difficulty sitting for long periods of time due to pain in his right buttocks and low back scars. He has had to frequently shift positions when sitting. The examiner described a worsening of the Veteran’s symptoms. The September 2020 VA Muscle Injuries DBQ indicates that the Veteran has at least one scar associated with a muscle injury. The severity of the scar(s) caused by the muscle injury (ies) was described as entrance and exit scars that were small or linear, indicating short track of missile through muscle tissue. Photographs have been uploaded. The examiner noted that the Veteran continues to have retained shards of glass after two rounds of surgery, and tenderness to the scar. The two residual scars on his back were listed as tender to palpation. The examiner also concluded that the Veteran continues to have pressure on sensitive points around his scars and that the pain in his buttocks is due to the retained shards of glass in his right sacrum and right buttock. The examiner concluded that the Veteran has developed myofascial pain from the retained glass fragments in his sacrum and buttocks. In the September 2020 VA Medical Opinion DBQ the examiner concluded that the currently diagnosed conditions of retained glass fragments of the back and buttocks, postoperative injury and residual scars are related to the right leg disabilities and myofascial pain. Upon examination the Veteran had myofascial pain over the scars in his lower back and his right buttock. Analysis After considering the evidence of record in light of the applicable rating criteria, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating for the Veteran’s nonlinear scars of the back, or a compensable rating prior to September 18, 2020 or a rating in excess of 10 percent thereafter for residual scars. Neither scar is of the head, face, or neck so Diagnostic Code 7800 is not for application. Looking at the Veteran’s nonlinear scars of the back, the probative evidence of record illustrates that a compensable rating is not warranted at any time during the appeal period. As the scars are not of the head, face, or neck and are not associated with underlying soft tissue damage it is properly rated under Diagnostic Code 7802. As Diagnostic Code 7802 does not provide for a zero percent evaluation, a noncompensable rating is to be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. A compensable rating of 10 percent is not warranted as the Veteran’s scars of the back had an approximated total area, measuring at most, 4 cm. As the scars were not described by an examiner as not having underlying soft tissue damage prior to September 2020, the Board finds that the earliest date to award a separate rating under Diagnostic Code 7802 is the currently assigned effective date—September 18, 2020. Additionally, a compensable or separate rating for the scars of the back are not warranted under Diagnostic Code 7801, as the scars are not associated with underlying soft tissue damage and do not measure at least 39 square centimeters. The criteria for a compensable rating under both Diagnostic Codes 7801 and 7802 are not met when considering both the current criteria and the criteria prior to August 13, 2018. Looking at the Veteran’s residual scars disability, the probative evidence of record illustrates that the currently assigned noncompensable rating and 10 percent rating as of September 18, 2020 are proper. Prior to September 18, 2020 the residual scars were not painful or unstable, as reflected in the January 2014 VA examination report. The January 2014 VA examiner concluded that neither scar was painful or unstable. As such, a compensable rating is not warranted under Diagnostic Code 7804 at any time prior to September 18, 2020. The January 2014 VA examiner stated that one of the scars measured 3cm long and the other scar measured 1 cm long. Therefore, a compensable rating is not warranted under Diagnostic Codes 7801 or 7802 at any time prior to September 18, 2020, to include consideration of the current criteria and the criteria prior to August 13, 2018. The January 2014 VA examiner concluded that the scars did not impact the Veteran’s ability to work, none of the scars resulted in limitation of function, and the Veteran did not have any other pertinent physical findings, complications, conditions, signs and/or symptoms (such as muscle or nerve damage) associated with any of the scars. The probative evidence does not indicate any disabling effects not considered, or functional impairment. As such, a separate or compensable rating is not warranted based on any other provision of the rating schedule, to include Diagnostic Code 7805, at any time prior to September 18, 2020, even when considering the current criteria and the criteria effective prior to August 13, 2018. As of September 18, 2020, the Veteran’s residual scars disability manifested in two painful scars. As there are only two scars, a rating higher than 10 percent is not warranted under Diagnostic Code 7804. A compensable, separate rating under Diagnostic Codes 7801 or 7802 is not warranted as of September 18, 2020, as the scars did not measure at least 39 square centimeters. The September 2020 VA examiner concluded that the scars impact the Veteran’s ability to work, as it has impacted his ability to climb, walk or stand for long periods of time. The two residual scars on his back were listed as tender to palpation. The examiner described a worsening of the Veteran’s symptoms. These symptoms are contemplated by the currently assigned 10 percent rating. The September 2020 VA examiner also concluded that neither of the Veteran’s scars resulted in limitation of function, nor did he have any other pertinent physical findings, complications, conditions, and or symptoms such as muscle or nerve damage associated with any of the scars. The probative evidence does not indicate any disabling effects not considered, or functional impairment. As such, a separate or compensable rating is not warranted based on any other provision of the rating schedule, to include Diagnostic Code 7805, at any time during the appeal period. The Board acknowledges that the Veteran may feel his scars warrant higher ratings. However, as referenced above in the introduction, the Veteran’s contentions have focused more on symptoms related to his other service-connected disabilities and his currently non-service-connected myofascial pain syndrome. Additionally, despite the RO recently assigning a separate, noncompensable rating for the scars of the back in October 2020, the Veteran has not submitted any statements to describe whether he feels a compensable rating is warranted. Nevertheless, this issue is before the Board and the Veteran would not be competent to assess the level of severity of his scars of the back or residual scars, even though he is competent to report his symptoms. The VA examinations would outweigh the Veteran’s contentions. Of note, the Veteran has stated that there may be outstanding private medical records. However, despite VA’s attempts to secure these private records, to date the Veteran has not provided the necessary authorization. See July 2016 and November 2019 letters. The Veteran has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA’s duty to assist is not a one-way street; if a veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence). As the preponderance of the evidence is against the assignment of a compensable rating for scars of the back, residual scars prior to September 18, 2020 and a rating in excess of 10 percent thereafter, the benefit-of-the-doubt doctrine is not applicable, and the claims must be denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Talamantes, 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.