Citation Nr: 21022336 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 12-28 393 DATE: April 15, 2021 ORDER Entitlement to an initial 30 percent rating for scar, removal sebaceous cyst right naso-labial line from November 14, 2008 to June 28, 2016 is granted. FINDING OF FACT When resolving the benefit of the doubt in favor of the Veteran, from November 14, 2009 to June 28, 2016, the Veteran’s scar, removal sebaceous cyst right naso-labial line was manifested by at least two characteristics of disfigurement. CONCLUSION OF LAW The criteria for entitlement to an initial 30 percent rating from November 14, 2008 to June 28, 2016 for scar, removal sebaceous cyst right naso-labial line have been met. 38U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.3, 4.7, 4.118, Diagnostic Code 7800. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Coast Guard from October 1973 to October 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which awarded service connection for scar, removal sebaceous cyst right naso-labial line. The Veteran testified at a local RO hearing in July 2011. The Veteran also testified at a Board videoconference hearing before the undersigned Veterans Law Judge in March 2013. Both hearing transcripts are associated with the record. The Board notes that this case has a very lengthy procedural history. The case was remanded by the Board in March 2015, February 2016, and June 2017 for further development. During the pendency of the appeal, in a March 2018 rating decision the RO granted a 10 percent rating from November 14, 2008 and a 30 percent rating from June 28, 2016. Thereafter, the Board denied the Veteran’s claim for an increased rating in a July 2018 decision which was subsequently appealed by the Veteran. In June 2019, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand (JMR). The case was returned to the Board for further adjudication consistent with the JMR. Subsequently, the Board again denied the claim for an increased rating in a November 2019 rating decision, which was again appealed by the Veteran. The Veteran did not challenge the Board’s denial of entitlement to a separate compensable rating in excess of 10 percent from November 14, 2008, for pain associated with the residual scar from removal of a sebaceous cyst at the right naso-labial line; or to a rating in excess of 30 percent from June 28, 2016, for residual scar from removal of sebaceous cyst at the right naso-labial line. Accordingly, the parties requested that the Court dismiss the appeal with respect to those issues. In September 2020, the Court granted a JMR, which found that the Board provided inadequate reasons and bases for finding that a 30 percent rating was not warranted from November 14, 2008. The Board recognizes that additional VA clinical records and a December 2020 examination were associated with the record, which have not been considered by the RO. Nevertheless, as these records do not address the period on appeal, the Board finds they are not applicable to the current claim and waiver of RO consideration is not necessary. Moreover, as discussed further below, the Board has awarded a 30 percent rating herein for scar, removal sebaceous cyst right naso-labial line from November 14, 2008 to June 28, 2016; representing a full grant of the benefit sough on appeal. Entitlement to a rating in excess of 10 percent disabling from November 14, 2008 for residual scar from removal of a sebaceous cyst at the right naso-labial line The Veteran contends that her service-connected right naso-labial line scar is not adequately compensated by the current 10 percent evaluation and she is entitled to an increased rating. Disability ratings are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities. 38C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In rating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119(1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s residual scar from removal of a sebaceous cyst at the right naso-labial line is currently rated under38C.F.R. §4.118, Diagnostic Code 7800. Under Diagnostic Code 7800, a 10 percent rating is warranted for scars that are located on the head, face, or neck when there is one characteristic of disfigurement. A 30 percent rating is warranted when there is 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, or lips), or; with two or three characteristics of disfigurement. A 50 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement. An 80 percent rating is warranted when there is 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. 38C.F.R. §4.118, Diagnostic Code 7800. For purposes of evaluation under Diagnostic Code 7800, the eight characteristics of disfigurement are: (1) a scar that is five or more inches, or 13 centimeters, in length; (2) a scar that is at least one-quarter of an inch, or 0.6 centimeters, wide at the widest part; (3) surface contour of the scar that is elevated or depressed on palpation; (4) a scar that is adherent to underlying tissue; (5) skin that is hypo-or hyper-pigmented in an area exceeding six square inches, or 39 square centimeters; (6) skin texture that is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches, or 39 square centimeters; (7) underlying soft tissue that is missing in an area exceeding six square inches, or 39 square centimeters; (8) and skin that is indurated and inflexible in an area exceeding six square inches, or 39 square centimeters. Id. At Note 1. Based on the evidence of record and when resolving the benefit of the doubt in favor of the Veteran, the Board finds that a 30 percent rating is warranted from November 14, 2008 to June 28, 2016. The Veteran has consistently reported that her scar has been manifested by at least two characteristics of disfigurement throughout the course of appeal. In this regard, at the July 2011 RO hearing, the Veteran’s representative, on behalf of the Veteran, stated that the Veteran has pain, swelling, tenderness, and discoloration stages sporadically. The representative characterized the scar as “disfiguring,” but not symptomatic during the hearing. The representative also stated that the Veteran sometimes must go to the doctor for the scar and “do surgery to get it under control.” The Veteran testified that she has been to a plastic surgeon to help reduce the prominence of the scar. She further testified that it flares up once every one to two years where it gets itchy, painful, and red. Likewise, at the Board hearing, the Veteran essentially testified that her scar was disfiguring and that people stared at her. The Board notes that there is a significant discrepancy regarding the June 2009 and June 2016 VA examination reports. While the June 2009 report shows no disfigurement, the June 2016 report shows at least two characteristics of disfigurement (elevation/depression as well as adherence to underlying tissue) and possibly more. Significantly, it is unclear whether the “3 x 3” mild elevation behind 16-the liner scar is expressed in terms of centimeters or inches. Thus, the Board previously remanded for another VA examination for clarification. Another examination was conducted in January 2018. The Board notes that the June 2016 and January 2018 examinations were conducted by the same examiner. The examiner reviewed her previous examination and offered the following clarifying statements. It was clarified that the June 2016 examination was referring to the scar currently on appeal, the right naso-labial line scar. The examiner also clarified that the right naso-labial line scar was well-healed without tenderness to palpation, open lesions, or fasciculations. The examiner stated that the scar is stable and does not affect function such as chewing, talking, or eye movements. The examiner also determined that the scar did not result in disfigurement and is mildly hypopigmented. The mild elevation behind the linear scar was measured at 3 by 3 cm. at the June 2016 examination. It was noted that there is scar tissue palpated behind the scar measuring approximately 3 by1cm. in size that is non-tender. The examiner stated that the scar is not disfiguring and noted only on deep palpation. Importantly, in its June 2017 remand, the Board specifically asked the January 2018 VA examiner to address the severity of the Veteran’s scar since November 14, 2008, the date of award of service connection. Significantly, the January 2018 VA examiner stated that the scar was stable, which would appear to indicate that the scar has remained unchanged during the course of the appeal. As such, the Board finds the January 2016 and January 2018 VA examinations are probative for this period on appeal. As these examinations combined document two characteristics of disfigurement, i.e. the scar is elevated and adherent to underlying tissue, when resolving the benefit of the doubt in favor of the Veteran, a 30 percent rating is warranted from November 14, 2008 to June 28, 2018. The United States Court of Appeals for Veterans Claims (Court) has held that, on a claim for original or increased disability rating, a claimant will generally be presumed to be seeking maximum benefit allowed by law and regulation and, thus, such claim remains in controversy where less than maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 39 (1993). However, the Court cited the case of Hamilton v. Brown, 4 Vet. App. 528 (1993) for the proposition that a claimant may limit a claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum disability rating allowed by law. Id. at 39. To do so, the Court indicated that a claimant would have to clearly express an intent to limit the appeal to entitlement to a specific disability rating for the service-connected condition. Here, the Veteran, through her representative, expressed her belief that her scar should be rated at a 30 percent level since the effective date of award of service connection, November 14, 2008. There has been no argument that a rating greater than 30 percent is warranted for any time. Thus, consistent with AB and Hamilton, the Board finds that the Veteran has limited her appeal and the award of a 30 percent rating herein represents a full grant of the benefit sought on appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.N. Moats 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.