Citation Nr: 21023300 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-37 566 DATE: April 20, 2021 ORDER From September 27, 2013 through January 16, 2020, a 10 percent rating, but no higher, for right arm lipoma residual scarring is granted. From September 27, 2013 through January 16, 2020, a 10 percent rating, but no higher, for left arm lipoma residual scarring is granted. Entitlement to a rating in excess of 10 percent for right arm lipoma residual scarring from January 17, 2020, is denied. Entitlement to a rating in excess of 10 percent for left arm lipoma residual scarring from January 17, 2020, is denied. Entitlement to a compensable rating for bilateral thigh lipomas is denied. FINDINGS OF FACT 1. From September 27, 2013, the Veteran’s right arm lipoma residual scarring was manifested by two painful scars. 2. From September 27, 2013, the Veteran’s left arm lipoma residual scarring was manifested by two painful scars. 3. Throughout the appeal period, the Veteran’s right arm lipoma residual scarring was not manifested by three or four scars that were unstable or painful. 4. Throughout the appeal period, the Veteran’s left arm lipoma residual scarring was not manifested by three or four scars that were unstable or painful. 5. Throughout the appeal period, the Veteran’s bilateral thigh lipomas were not manifested by functional impairment, by one or two scars that were unstable or painful, or by scars with an area or areas of 144 square inches (929 sq. cm.). CONCLUSIONS OF LAW 1. From September 27, 2013 through January 16, 2020, the criteria for a 10 percent rating, but no higher, for right arm lipoma residual scarring were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3 4.7, 4.118, Diagnostic Codes 7804, 7819. 2. From September 27, 2013 through January 16, 2020, the criteria for a 10 percent rating, but no higher, for left arm lipoma residual scarring were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3 4.7, 4.118, Diagnostic Codes 7804, 7819. 3. The criteria for a rating in excess of 10 percent for right arm lipoma residual scarring from January 17, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3 4.7, 4.118, Diagnostic Codes 7804, 7819. 4. The criteria for a rating in excess of 10 percent for left arm lipoma residual scarring from January 17, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3 4.7, 4.118, Diagnostic Codes 7804, 7819. 5. The criteria for a compensable rating for bilateral thigh lipomas have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3 4.7, 4.118, Diagnostic Code 7819. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1989 to August 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision. In his October 2014 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge. However, he subsequently withdrew that request. The Board issued a remand in December 2019 instructing the agency of original jurisdiction (AOJ) to obtain outstanding treatment records and obtain a VA examination to assess the level of severity of the Veteran’s service-connected lipoma scarring of his arms and thighs. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The AOJ obtained outstanding VA treatment records and a September 2020 VA examination. The Board finds the AOJ substantially complied with the December 2019 remand directives. 1. Entitlement to a compensable rating for right arm lipoma residual scarring prior to January 17, 2020, and to a rating in excess of 10 percent thereafter. 2. Entitlement to a compensable rating for left arm lipoma residual scarring prior to January 17, 2020, and to a rating in excess of 10 percent thereafter. 3. Entitlement to a compensable rating for bilateral thigh lipomas. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. §§ 4.7, 4.59 allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Turning to the disability ratings at issue here, the VA rating schedule contains no diagnostic code specifically applicable to rating lipomas. As such, the Veteran’s skin disorder was rated by analogy to a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Specifically, prior to the Board’s December 2019 remand, the Veteran was service connected for lipoma residual scarring, both arms and thighs, with a noncompensable rating effective August 16, 1993, under 38 C.F.R. § 4.118, Diagnostic Code 7819. In a September 2020 rating decision, the AOJ granted a 10 percent rating for painful linear scars, left arm, residuals of removal of lipoma effective January 17, 2020, and a 10 percent rating for painful linear scars, right arm, residuals of removal of lipoma effective January 17, 2020. Both ratings were assigned under 38 C.F.R. § 4.118, Diagnostic Code 7804. The codesheet that accompanied that rating decision also reflects assignment of a separate, noncompensable rating for lipomas of the bilateral thighs, effective August 16, 1993. Diagnostic Code 7819 provides ratings for benign skin neoplasms, which are rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or impairment of function. 38 C.F.R. § 4.118. Diagnostic Code 7804 provides a 10 percent rating for one or two unstable or painful scars. A 20 percent rating is assigned for three or four scars that are unstable or painful. A 30 percent rating is assigned for five or more scars that are unstable or painful. 38 C.F.R. § 4.118. During the course of this appeal, changes to the diagnostic codes for rating skin disabilities went into effect. However, they did not change the codes at issue here. 38 C.F.R. § 4.118. Turning to the evidence, the Veteran filed this increased rating claim on September 27, 2013, and he underwent a VA examination in connection with the claim in February 2014. That examination report documented two scars on each of the Veteran’s upper extremities that were not unstable or painful. There was one scar on the right elbow measuring 2.25 cm. A second scar along the volar mid-shaft of the right forearm measured 3 cm. A third and fourth scar were found on the volar lateral aspect of the left forearm, measuring 4.5 cm and 5 cm, respectively. No scars were found on the lower extremities, anterior trunk, and posterior trunk. None of the scars resulted in limitation of function. The Veteran underwent another VA examination in January 2020. Physical examination revealed two scars on each forearm. The examiner noted the two scars on the right forearm measured 0 x 0 cm. The two scars on the left forearm also measured 0 x 0 cm. It was recorded that the scars were not painful. Due to the January 2020 examiner’s failure to measure his scars, the Veteran was provided another VA examination in September 2020. That examiner noted painful linear scars above and below the right elbow, a painful linear scar below the left elbow, and a painful irregular scar above the left elbow. None of the scars were unstable with frequent loss of covering of the skin. The first scar on the right arm measured 5.5 cm in length and 0.5 cm in width. The second scar on the right arm measured 4 cm in length and 0.5 cm in width. Both scars were tender to palpation. The first scar on the left arm measured 3 cm in length and 0.4 cm in width. The second scar on the left arm measured 4.5 cm in length and 0.5 cm in width. Both scars were tender to palpation. No scars were found on the lower extremities, anterior trunk, and posterior trunk. The examiner also noted that none of the scars caused limitation of function or limited ability to work. Ratings for Right Arm and Left Arm Lipoma Residual Scarring Although prior VA examiners did not describe the Veteran’s upper extremity lipoma residual scars as painful, the scars were present throughout the claim period, and the Veteran asserted several times prior to his September 2020 VA examination that they were already painful or tender. See e.g., October 2014 VA Form 9; November 2019 Informal Hearing Presentation. Thus, acknowledging that the Veteran is competent to describe painful or tender scars, and affording him the benefit of the doubt, the Board finds that 10 percent ratings for right arm and left arm lipoma residual scarring are warranted under 38 C.F.R. § 4.118, DC 7804 from September 27, 2013, the date of his increased rating claim, through January 16, 2020. On the other hand, ratings in excess of 10 percent for right arm and left arm lipoma residual scarring are not warranted at any point during the claim period, because the evidence of record does not show three or four scars on each arm that are unstable or painful. The Board has considered whether any other diagnostic codes related to disabilities of the skin would provide for higher disability evaluations. However, the evidence does not reflect that the Veteran’s symptoms would warrant higher ratings under a different diagnostic code. For example, the evidence of record does not document underlying soft tissue damage or affected areas of 144 square inches (929 sq. cm.) or greater. See 38 C.F.R. § 4.118, Diagnostic Codes 7801 and 7802. The record also does not document impairment of function due to the right arm and left arm lipomas. See 38 C.F.R. § 4.118, Diagnostic Code 7819. Rating for Bilateral Thigh Lipomas As already noted, the Veteran is service connected for bilateral thigh lipomas with a noncompensable rating effective August 16, 1993, under 38 C.F.R. § 4.118, DC 7819. This code states benign skin neoplasms are rated as disfigurement of the head, face, or neck (DC 7800), scars (DC's 7801, 7802, 7803, 7804, or 7805), or impairment of function. Although the medical evidence of record documents the presence of thigh lipomas, it does not document ongoing complaints of pain or reports of surgery for removal of lipomas on the lower extremities. Similarly, it does not document functional impairment related to those lipomas during the claim period. Therefore, the Board finds that a compensable rating for bilateral thigh lipomas is not warranted. The Board has applied the benefit-of-the-doubt rule in granting higher ratings for right and left arm lipoma residual scarring for a portion of the claim period. However, the evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule to award additional or even higher ratings for the service-connected disabilities addressed herein. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. L. STEPANICK Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harris, Attorney Advisor 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.