Citation Nr: 21023166 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 12-28 702 DATE: April 20, 2021 ORDER Entitlement to an initial compensable rating for service-connected residual scars, status post-operative repair of atrial septal defect is denied. FINDING OF FACT Throughout the period on appeal, the preponderance of the evidence does not show objective evidence of painful or unstable scars on examination of the Veteran's service-connected residual scars, status post-operative repair of atrial septal defect. CONCLUSION OF LAW Throughout the period on appeal, the criteria for an initial compensable rating for a residual scars, status post-operative repair of atrial septal defect, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.118, Diagnostic Codes 7803, 7804, 7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from October 1982 to January 1999. In March 2016, the Veteran appeared at a hearing held at the Regional Office (RO) before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board remanded this claim in October 2017 for further development. The matter has now returned to the Board for appellate review. In that document, it was noted that if separate claims for other disabilities, including residuals of the atrial septal repair other than residual scarring were to be claimed, such should be filed with the Originating Agency on proper forms. The only issue currently before the Board concerns the residual scarring. Entitlement to an initial compensable rating for service-connected residual scars, status post-operative repair of atrial septal defect Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Hart v. Mansfield, 21 Vet. App. 505 (2007). Such separate disability ratings are known as staged ratings. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran seeks an initial compensable rating for residual scars, status post- operative repair of atrial septal defect. A noncompensable rating has been assigned under Diagnostic Code 7805 effective July 31, 2008. Scars are rated under 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. The scar regulations were revised effective August 13, 2018. These new regulations apply to claims that were pending on August 13, 2018 (such as here), if the new regulations are more favorable to the Veteran's case. Under the scar regulations in effect prior to and since August 13, 2018, Diagnostic Code 7800 provides ratings for scars of the head, face, and neck. As the Veteran's scars do not involve the head, face, and neck, further discussion of Diagnostic Code 7800 is not necessary. 38 C.F.R. § 4.118. Under the scar regulations in effect prior to August 13, 2018, Diagnostic Code 7801 provided ratings for scars, other than the head, face, or neck, that were deep or that caused limited motion. Scars that were deep or that caused limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) were rated as 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) were rated as 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) were rated as 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq.cm.) were rated as 40 percent disabling. Note (1) to Diagnostic Code 7801 provided that a deep scar was one associated with underlying soft tissue damage. Under the scar regulations in effect since August 13, 2018, Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are associated with underlying soft tissue damage. Scars that are associated with underlying soft tissue damage in an area or areas exceeding 6 square inches (39 sq. cm.) are rated as 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) are rated as 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) are rated as 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq.cm.) are rated as 40 percent disabling. Under the scar regulations in effect prior to August 13, 2018, Diagnostic Code 7802 provided ratings for scars, other than the head, face, or neck, that were superficial or that did not cause limited motion. Superficial scars that did not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, were rated as 10 percent disabling. Note (1) to Diagnostic Code 7802 provided that a superficial scar was one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Under the scar regulations in effect since August 13, 2018, Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are not associated with underlying soft tissue damage. A scar that is not associated with underlying soft tissue damage in an area or areas of 144 square inches (929 sq. cm.) or greater is rated as 10 percent disabling. 38 C.F.R. § 4.118. Under the scar regulations in effect prior to and since the August 13, 2018, Diagnostic Code 7804 provided that one or two scars that were unstable or painful were rated as 10 percent disabling. Three or more scars that were unstable or painful were rated as 20 percent disabling. Five or more scars that were unstable or painful were rated as 30 percent disabling. Note (1) to Diagnostic Code 7804 provided that an unstable scar was one where, for any reason, there was frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118. Under the scar regulations in effect prior to and since August 13, 2018, Diagnostic Code 7805 provided that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate diagnostic code. 38 C.F.R. § 4.118. Based on the above, the Board finds that a compensable rating for the Veteran's residual scars is not warranted. 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7801, 7802, 7803, 7804, 7805. The Board notes that while in service, the Veteran was diagnosed with an atrial septal defect and a successful surgery was performed in January 1987. The Veteran was afforded a VA examination in March 2012. Upon examination, the examiner noted four linear scars on the anterior side of the trunk precisely located on the anterior chest wall. Specifically, he indicated one scar located in the mid-sternal region measuring 29 centimeters; a second scar located in the right upper quadrant of abdomen due to drainage tube placement measuring 1.5 centimeters; a third scar located in the left upper quadrant of abdomen due to drainage tube placement measuring 1.5 centimeters; and a fourth scar located at the right anterior chest wall due to drainage tube placement measuring 1 centimeters. The scars were not painful on examination and there was no skin breakdown. The examiner noted that the scars were superficial with no underlying tissue damage. There was no inflammation, edema, keloid formation, or disfigurement, and the he noted that the scars did not limit the Veteran’s motion or cause any functional limitation. In June 2012, the examiner clarified that these scars were neither painful nor unstable. Another VA examination was later performed in February 2015. The examiner determined that there was no change in the Veteran’s condition since his previous examination. In March 2016, the Veteran testified that he has one linear scar that is approximately 13 inches in length down the chest as well as two small holes on each side. He stated that the scars on his chest were painful and aggravated by movement. He further explained that one scar was beginning to bulge near his sternum. The Veteran also indicated that he had received recent VA treatment for the pain. Therefore, the Board remanded the claim in October 2017, for additional development. Pursuant to the remand, VA obtained updated VA treatment records. The Board acknowledges that in May 2016, the Veteran did report sternal pain, especially with pulling and pushing motions. He underwent an x-ray and CT scan for possible sternal wire pathology, which indicated a minor abnormality of the wire within the sternum but was considered non-diagnostic. The scar itself was not noted to be painful upon palpitation. The Veteran was afforded a VA examination in April 2018. The Veteran continued to report sternal pain with activities involving the muscles of the anterior chest wall. The examiner noted a linear scar of the mid-sternum with a length of 26 centimeters. He indicated that the scar itself was not painful or unstable and did not impact the Veteran’s ability to work. Based on a review of the pertinent evidence, the Board finds that an increased compensable rating for the Veteran's scars is not warranted. In this regard, the Board concludes that, for the entire appeal period, the Veteran's scars were not of a size to warrant a compensable rating and do not result in functional impairment or other disabling effects. Further, the Board finds that throughout the entire period on appeal, there has been no objective evidence of painful or unstable scars. While the Veteran is competent to report about pain, multiple VA examiners during the period reported that while the Veteran has residuals scars due to the surgical repair of his atrial septal defect, they were not noted to be painful nor unstable upon examination. In other words, the Veteran's reports do not outweigh the objective evidence of record. Further, the Veteran has described pain consistent with internal chest pain but has denied pain upon palpitation of the scar itself. On review, the objective findings are contemplated in the noncompensable rating currently assigned under any applicable code for this period. There is no probative evidence during this period of limitation of function or further disabling effects due to the service-connected residual scars.   Therefore, a compensable evaluation is not warranted for the entire period on appeal. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C. § 5107(b). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Sneeringer, Associate 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.