Citation Nr: 21025538 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-26 925 DATE: April 28, 2021 ORDER Entitlement to a rating of 20 percent, but no higher, for scars associated with a left wrist injury is granted. FINDING OF FACT The Veteran has three scars on his left upper extremity that are linear, stable, and painful and cause reduced grip strength. CONCLUSION OF LAW The criteria for a rating of 20 percent, but no higher, for scars associated with a left wrist injury have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.118, Diagnostic Code (DC) 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from March 1963 to March 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. The Board remanded the claim on appeal in December 2019 for additional development. The Board’s remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). Entitlement to a rating of 20 percent, but no higher, for scars associated with a left wrist injury The Veteran seeks a higher rating for his left wrist scars. For the reasons that follow, the Board finds that an increased rating is warranted. The appeal period before the Board begins on December 29, 2013, one year prior to the date VA received the claim for an increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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. 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 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Scars are rated under 38 C.F.R. § 4.118, schedule of ratings for disorders of the skin, under DCs 7801, 7802, 7804, and 7805. Effective August 13, 2018, the rating criteria for skin disabilities were revised. See 73 Fed. Reg. 32, 592 (July 13, 2018). As this appeal was pending on August 13, 2018, the revised criteria are applicable, but only for the period beginning August 13, 2018. The Veteran’s scars have been rated 10 percent disabling pursuant to 38 C.F.R. § 4.118, DC 7804 and noncompensable under DC 7805 for the entire appeal period. As an initial matter, the Board notes that in a May 2013 Statement in Support of Claim, the Veteran indicated that he was only appealing the 10 percent rating assigned under DC 7804 for his wrist scars. However, throughout the appeal period, the Veteran has reported disabling effects that are not contemplated by DC 7804 and which would be appropriately considered under DC 7805. Accordingly, the Board will consider the appropriateness of the noncompensable rating under DC 7805 as part and parcel of his claim for an increased rating for his left wrist scars. Under the version of the Schedule for Rating Disabilities in effect prior to August 2018, scars were rated under DCs 7800 to 7805. DC 7800 applied scars or disfigurement of the head, face, or neck. DC 7801 applied to burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear. A minimum 10 percent rating was assigned for an area(s) of at least 6 square inches (30 sq. cms) but less than 12 sq. inches (77 sq. cms). A deep scar was associated with underlying soft tissue damage. DC 7802 applied to burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear. A 10 percent rating was assigned for area(s) of 144 sq. inches (929 sq. cms). DC 7804 pertains to unstable or painful scars. A 10 percent evaluation is assigned for one or two scars that are unstable or painful. A 20 percent evaluation is assigned for three or four scars that are unstable or painful. A 30 percent evaluation is assigned for five or more scars that are unstable or painful. Note (1): an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): 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. Note (3): Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable. DC 7805 applies to limitation of function of the affected part and specifically provides: Evaluate any disabling effect(s) not considered in rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code. Under the post-August 2018 rating criteria, DCs 7800, 7804 and 7805 remain the same. DC 7801 was amended to state that burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage, in an area or areas of at least 6 square inches (39 sq. cms) but less than 12 square inches (77 sq. cms) will be assigned a 10 percent rating. Notes (1) and (2) were amended, but not in a manner that is pertinent to this particular case. DC 7802 was amended to state that burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage in an area or areas of 144 square inches (929 sq. cms) or greater will be assigned a 10 percent rating. Notes (1) and (2) were amended, but not in a manner that is pertinent to this particular case. Turning to the evidence of record, the Veteran underwent a VA examination for his scars in February 2015. At the examination, the examiner noted two scars with one being painful. It was noted that the painful scar was hypersensitive to touch and caused dull pain. Neither of the scars were unstable. The total area of all related scars was not greater than 39 square centimeters (cms). The examiner noted that the Veteran’s scars did not result in limitation of function but indicated that there was nerve damage associated with the scars. In his May 2016 notice of disagreement, the Veteran contended that a higher rating was warranted due to excessive pain and weakness, which resulted in dropping items, as well as arthritis in his wrist. In his June 2016 substantive appeal, the Veteran contended that he had a third scar on his left pinky finger that was painful. See also September 2019 hearing transcript. At the September 2019 Board hearing, the Veteran testified that he had three scars, two on his wrist and one on his fingertip. The Veteran testified that two of his scars were painful and that one of the scars was unstable. He further testified that he constantly drops items with the left wrist due to pain from the scars. See also April 2021 Written Brief Presentation (reporting that the Veteran has three painful scars and sometimes drops items due to pain). Pursuant to the December 2019 Board remand, the Veteran underwent another VA examination in February 2020. At the examination, the examiner noted three scars associated with the left wrist injury, all of which were found to be painful on clinical evaluation. The examiner noted that the three scars were tender to palpitation but were not unstable. The total area of all related scars was not greater than 39 square cms. The examiner also noted that the third scar was overlooked on the previous February 2015 VA examination. See February 2020 VA opinion. Based on the evidence presented, the Board finds that a 20 percent rating, but no higher, for the Veteran’s left wrist scars is warranted pursuant to DC 7804 for the entire appeal period. Specifically, the February 2020 VA examination shows that the Veteran has three scars that are all painful. While the February 2015 VA examination only noted two scars, the February 2020 examiner explained that the third scar on the Veteran’s pinky was overlooked at that examination. Moreover, throughout the entire appeal period the Veteran has contended that his scars have been painful, though he did not consistently report that all three were painful. Nevertheless, resolving all reasonable doubt in favor of the Veteran, the Board finds that an increased rating of 20 percent is warranted for three painful scars. An even higher rating under DC 7804 requires at least five or more scars that are painful or unstable. As the Veteran does not have at least five painful scars related to his left wrist, a 30 percent rating is not warranted. Furthermore, the preponderance of the evidence weighs against a finding that any of the Veteran’s scars are unstable. As noted above, an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. While the Veteran has generally contended that one of his scars is unstable, he has not described any symptomatology related to loss of covering of the skin over the scar. Moreover, neither the February 2015 nor the February 2020 VA examiner found that any of the Veteran’s scars were unstable, and there is no evidence in the Veteran’s VA treatment records indicating any of the scars are unstable. Thus, besides the Veteran’s general assertion that he has an unstable scar, there is no evidence indicating such. Accordingly, a 20 percent rating, and no higher, is assigned for the left wrist scars pursuant to DC 7804. The Board has considered whether other diagnostic codes could potentially afford the Veteran a compensable or higher rating at any point during the appeal period. However, evaluation under DC 7800 is not appropriate because the scar is not of the head, face, or neck. Evaluation under the former DC 7801 or DC 7802 is not appropriate as the scars are not nonlinear. A compensable or higher evaluation is also not warranted under the revised criteria of DC 7801 or DC 7802 as the total area of the scars is not greater than 39 square cms or 929 sq. cms respectively. The Board also finds that a compensable rating under DC 7805 is not warranted at any point during the appeal period. While the Veteran has reported dropping things due to his painful scars and there is evidence of nerve damage associated with the scars, the Veteran is already in receipt of a separate rating for sensory loss of his left hand. Specifically, the Veteran is in receipt of a 20 percent rating under DC 8515, paralysis of the median nerve. Reduced grip strength is contemplated in the schedular criteria pertaining to diseases of the peripheral nerves and the applicable DC. See 38 C.F.R. § 4.124a, DC 8515. Thus, the Veteran already is being compensated for this functional impairment. Other than reduced grip strength, there is no evidence that the scars cause any other limitation of function. Accordingly, a compensable rating under DC 7805 also is not warranted. The Board acknowledges the Veteran’s contention that a higher rating is warranted due to arthritis in the Veteran’s left wrist. However, arthritis is a separate and distinct disability from the Veteran’s scars for which he is not currently service connected. Should the Veteran wish to file a claim for left wrist arthritis, he is free to do so. In light of the foregoing, the Board finds that a rating of 20 percent, but no higher, is warranted for the Veteran’s scars associated with a left wrist injury for the entire appeal period. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, 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.