Citation Nr: 21028197 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 14-25 814 DATE: May 10, 2021 ORDER A compensable rating for postoperative left inguinal hernia repair scar prior to September 24, 2020 is denied. A rating in excess of 10 percent for postoperative left inguinal hernia repair scar from September 24, 2020 is denied. FINDINGS OF FACT 1. Prior to September 24, 2020, the Veteran's postoperative left inguinal hernia repair scar was not painful or unstable and did not have an area of 39 square centimeters or more. 2. From September 24, 2020, the Veteran's postoperative left inguinal hernia repair scar is not both painful and unstable, and he does not have 3 or 4 scars which are unstable or painful. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for postoperative left inguinal hernia repair scar prior to September 24, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Code 7804 (criteria in effect prior to and after August 13, 2018). 2. The criteria for a rating in excess of 10 percent for postoperative left inguinal hernia repair scar from September 24, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Code 7804 (criteria in effect prior to and after August 13, 2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1979 to June 1985, from September 1985 to September 1988, and from February to March 2003. The Board thanks him for his service. He appeals for a compensable rating for his left inguinal hernia scar prior to September 24, 2020, and for a rating in excess of 10 percent for such scar from September 24, 2020, based on a claim filed in October 2011 and a rating decision issued in January 2012. The Board last remanded the appeal to the agency of original jurisdiction (AOJ) in June 2020. Thereafter, in December 2020, the AOJ granted the 10 percent rating for the scar from September 24, 2020. In October 2017, the Veteran presented testimony at a videoconference hearing before a Veterans Law Judge (VLJ), as to an increased rating for his postoperative left inguinal hernia repair scar; however, the VLJ who conducted the October 2017 hearing is no longer employed by the Board. By letter dated on April 22, 2020, the Veteran was provided the opportunity to testify at another hearing before a VLJ; however, in a response received by VA in May 2020, he declined this opportunity. Scars are rated under 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. The scar regulations were revised effective August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. As the disability to be evaluated is a left inguinal hernia repair scar, only Diagnostic Codes 7801 through 7805 are for potential application. A review of the newly revised rating criteria for scars shows that only Diagnostic Codes 7801 and 7802 were revised. Under the old rating criteria, Code 7801 provided that burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrants a 10 percent rating. A 20 percent rating requires an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.). A 30 percent rating requires an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.). A 40 percent rating requires an area or areas of 144 square inches (929 sq. cm.) or greater. A qualifying scar is one that is nonlinear and deep, and is not located on the head, face, or neck. Note (1) to Code 7801 provides that a deep scar is one associated with underlying tissue damage. 38 C.F.R. § 4.118. The revised criteria changed the requirement that the scar be "deep and nonlinear" to "associated with underlying soft tissue damage." Otherwise, the rating criteria remain the same. 83 Fed. Reg. at 32598. Under the old criteria, Code 7802 provided that burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater warrant a 10 percent evaluation. Note (1) to Code 7802 provides that a superficial scar is one not associated with underlying soft tissue damage. Note (2) to Code 7802 provides that if multiple qualifying scars are present, a separate evaluation is assigned for each affected extremity based on the total area of the qualifying scars that affect that extremity. 38 C.F.R. § 4.118. The new rating criteria requires the scar to be "not associated with underlying soft tissue damage" rather than to be "superficial and nonlinear." 83 Fed. Reg. at 32598. The only other revisions to Diagnostic Codes 7801 and 7802 are to the Notes. Note (1) now defines six zones of the body as each extremity, anterior trunk, and posterior trunk; and states that the midaxillary line divides the anterior trunk from the posterior trunk. Note (2) states that a separate evaluation may be assigned for each affected zone of the body under this Code if there are multiple scars, or a single scar, affecting multiple zones of the body. Separate evaluations should be combined under 38 C.F.R. § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under the Code. Id. The rating criteria under Diagnostic Codes 7804 and 7805 were not changed in the new revisions. Only the header of Diagnostic Code 7805 was revised. Diagnostic Code 7804 provides a 10 percent rating for 1 or 2 scars that are unstable or painful. A 20 percent rating is warranted for 3 to 4 scars that are unstable or painful and a 30 percent rating is warranted for 5 or more scars that are unstable or painful. Note (1) to Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this Diagnostic Codes, when applicable. Id. Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800-7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 under an appropriate diagnostic code. Id. Upon consideration of the numerous VA examination reports and treatment records as well as the history reported by the Veteran, the Board finds that a higher rating is not warranted for the left inguinal hernia repair scar based on area affected or functional loss. Diagnostic Codes 7801 and 7802 require that, to be compensable, the scar in question be at least 39 sq. cm. (7801) or 929 sq. cm. (7802) or greater. The Board finds that Veteran's left inguinal hernia repair scar is not of sufficient size to warrant a higher rating under either 7801 or 7802, including with consideration of the revised regulations. In addition, there is no showing that the left inguinal hernia repair scar has been manifested by any limitation of function or other disabling affects (7805). In this regard, the Board notes that service connection is in effect for a rash, status post hernia belt associated with left inguinal hernia status post repair, and for left inguinal hernia status post repair. However, these disabilities and the ratings for them are separate from the appeal before the Board. Accordingly, throughout the appeal period, there is no support for assignment of a compensable rating based on area affected or functional loss under either the current or pre-amended criteria. The Veteran's left inguinal hernia repair scar has been assigned a separate 10 percent rating under Diagnostic Code 7804 for a single unstable or painful scar from September 24, 2020, the date of a VA examination which found that the Veteran had 1 painful left inguinal hernia repair scar. However, acompensable rating for the left inguinal hernia repair scar prior to September 24, 2020 is not warranted because the evidence does not show that the left inguinal hernia repair scar was painful or unstable prior to this date. At the time of the VA examination in November 2011, the Veteran denied pain associated with the scar, and it was not unstable. Likewise, the scar was not painful or unstable at the time of the VA examinations in August 2014 and February 2019. There is no probative evidence that on any particular date prior to September 24, 2020, the Veteran's left inguinal hernia scar was painful or unstable. Further, a rating greater than 10 percent under Code 7804 is not warranted from September 24, 2020 because the Veteran's left inguinal hernia repair scar is not shown to be manifested by three or four scars that are unstable or painful. To the contrary, there is only 1 known left inguinal hernia repair scar. The Veteran, in October 2017 testimony, and in other statements, reported that when his hernia reoccurs, or when he is having pain from it, it also affects the superficial part of his hernia, which is the scar. However, the scar is not part of his hernia. They are separate and impairment for each disability is rated separately under separate Diagnostic Codes. While he reported "pain in that area" in October 2017 testimony, pain from the hernia or the contact dermatitis rash is not compensable under the Veteran's scar rating. The Veteran also testified that his scar was painful and unstable; however, his scar was not documented as painful or unstable during the November 2011, August 2014, or February 2019 examinations. Further, in October 2017 testimony, the Veteran reported when he is having pain, he tends to rub or scratch the area, and it gets inflamed, and then he puts some cream on it to make it (his service connected contact dermatitis) settle, and he takes some medication for the pain. He also testified that in 2014, his VA physician helped him suppress the pain by having him wear a hernia belt, which he is also wearing now. However, this reported pain does not appear to be scar pain, however, but instead reflects his hernia and/or his rash were symptomatic. Further, while the Veteran, as a layperson, is competent to report the symptoms he has experienced, he has not been shown to have the requisite knowledge or training to be deemed competent to differentiate the etiology of his pain as related to his left inguinal hernia repair scar or to determine if the scar is unstable. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Such competent evidence concerning the nature and extent of the Veteran's left inguinal hernia repair scar has been provided by the VA examiners' findings which directly address the criteria under which the Veteran's left inguinal hernia repair scar is evaluated throughout the appeal period. The Board finds these VA examiners' findings to be competent, objective, and probative evidence of record, and as such, the Board finds these VA examination reports to be more probative than the Veteran's assertions of that his scar is painful and unstable. The preponderance of the evidence is against the assignment of a compensable rating for the left inguinal hernia repair scar based on area affected or functional loss at any time during the appeal period prior to September 24, 2020, and against a rating in excess of 10 percent from that date. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, there is no reasonable doubt to be resolved in the Veteran's favor and the appeal must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. M. ESPINOZA Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lawson 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.