Citation Nr: 21027198 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 15-38 416 DATE: May 5, 2021 ORDER Entitlement to an initial disability rating of 10 percent, but no higher, for surgical scar, right wrist status post tenosynovectomy for the period prior to October 15, 2020 is granted. Entitlement to a disability rating in excess of 10 percent for surgical scar, right wrist status post tenosynovectomy for the period from October 15, 2020 onward is denied. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's surgical scar, right wrist status post tenosynovectomy manifested as a painful scar for the period prior to October 15, 2020. 2. The weight of the evidence is against a finding that the Veteran's surgical scar, right wrist status post tenosynovectomy manifested as three or four unstable or painful scars for the period from October 15, 2020 onward. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 10 percent, but no higher, for surgical scar, right wrist status post tenosynovectomy for the period prior to October 15, 2020 have been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.118. 2. The criteria for entitlement to a disability rating in excess of 10 percent for surgical scar, right wrist status post tenosynovectomy for the period from October 15, 2020 onward have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.118. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Marine Corps from September 2003 to September 2007. These matters originate from a March 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that granted an initial noncompensable rating for surgical scar, right wrist status post tenosynovectomy (right wrist scar). The Veteran timely initiated and perfected an appeal of the initial rating assigned to his right wrist scar. The Veteran's October 2015 Form 9 reflects that he requested a hearing before a Board of Veterans' Appeals (Board) Veterans' Law Judge (VLJ); however, in May 2019 the Veteran, through his representative, communicated in writing that he desired to withdraw his hearing request. The Board remanded the Veteran's right wrist claim in December 2019 for additional development. Specifically, the Board directed that the VA treatment records be obtained from VA medical facilities in Canandaigua, New York and Rochester, New York; and that the Veteran subsequently be afforded a VA examination to determine the current severity of his right wrist scar disability. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Updated VA treatment records from various VA facilities, including the Canandaigua, New York and Rochester, New York facilities, were associated with the claims file in June 2020, August 2020, and September 2020. The Veteran was afforded a VA examination in October 2020. The RO issued a Supplemental Statement of the Case (SSOC) in October 2020. The Board finds that there has been substantial compliance with its December 2019 remand directives. The Board notes that while the March 2015 rating decision on appeal assigned an effective date in December 2014 for the grant of service connection for the Veteran's right wrist scar, that effective date has since been revised to February 18, 2013 by a June 2020 rating decision. An October 2020 rating decision granted the Veteran an increased rating for his right wrist scar, effective October 15, 2020. As the highest possible rating has not been assigned with respect to the period from October 15, 2020, onward, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). In light of the foregoing, the Board finds that the issues currently before it are entitlement to an initial disability rating for the Veteran's right wrist scar for the period from February 18, 2020, to October 14, 2020; and entitlement to a disability rating in excess of 10 percent for his right wrist scar for the period from October 15, 202,0 onward. Entitlement to a disability rating of 10 percent, but no higher, for surgical scar, right wrist status post tenosynovectomy for the period prior to October 15, 2020 is granted; entitlement to a disability rating in excess of 10 percent for surgical scar, right wrist status post tenosynovectomy for the period from October 15, 2020 onward is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In adjudicating claims for VA benefits, the burden of proof only requires an "approximate balance" of the evidence for and against a claim. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). This low standard of proof is "unique" to the VA adjudicatory process, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). In evaluating a claim for disability benefits, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154(a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. Laypeople are competent to report symptoms and experiences observable by their senses, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). The Veteran's right wrist scar is currently rated under diagnostic code 7805, which refers to diagnostic codes 780, 7801, 7802, and 7804. Diagnostic code 7800 applies to scars of the head, face or neck; diagnostic code 7801 refers to scars associated with underlying soft tissue damage; diagnostic code 7802 applies to scars with an area of 929 sq. cm. or greater; and diagnostic code 7804 applies to scars which are unstable or painful. The Veteran's right wrist scar is not a scar of the head, face, or neck. As discussed below, there is no evidence reflecting underlying soft tissue damage, or that the Veteran's scar is of an area 929 sq. cm. 804 ("Scar(s), unstable or painful") is the appropriate code under which to rate the Veteran's right wrist scar. Under diagnostic code 7804, a disability rating of 10 percent is warranted when there are one or two scars that are unstable or painful; progressively higher disability ratings are warranted where there are 3 or more scars that are unstable or painful. (Continued on the next page) A February 2015 VA examiner documented no pain or instability of the Veteran's right wrist scar, and documented the Veteran's scar as being 13 linear cm. In March 2015 a VA treating provider documented the Veteran's complaint of pain at the area of his right wrist scar. In his March 2015 written Notice of Disagreement (NOD) to VA, the Veteran stated that his right wrist scar was painful. In his October 2015 Form 9, the Veteran again reported that his scar was painful, particularly after using his hand and/or wrist to perform tasks such as assembling things or using hand tools. In November 2015 a VA treating provider documented the Veteran's report that he "still has problems with scar tissue." The October 2020 VA examiner documented the Veteran's report that his right wrist scar was intermittently painful and exacerbated by repetitive movements. The October 2020 VA examiner measured the Veteran's scar as 9 cm. by .5 cm., with additional swelling measuring 5.5 cm. by 3 cm. The examiner documented the Veteran's scar as being tender to palpation, but noted that the scar was not unstable, and that there was no underlying soft tissue damage. The evidence does not reflect the presence of any scar other than the right wrist scar associated with the Veteran's tenosynovectomy. The evidence does not reflect any scars with an area greater than 929 sq. cm or associated with underlying soft tissue damage. The evidence is at least in equipoise as to whether the Veteran's right wrist scar has manifested as a painful scar throughout the period on appeal. Accordingly, and in light of VA's obligation to give the benefit of the doubt to the Veteran, the Board finds that the criteria for an initial disability rating of 10 percent, but no higher, for the period prior to October 15, 2020 have been met, and the same is hereby granted. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.74.118. The Board further finds that the criteria for a disability rating in excess of 10 percent for the period from October 15, 2020 onward have not been met, and the same is hereby denied. Id. R.R. WATKINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. C. Sametshaw 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.