Citation Nr: 21030477 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 19-22 872 DATE: May 19, 2021 ORDER Entitlement to a disability rating of 10 percent, but no higher, for a right inguinal herniorrhaphy scar is granted. FINDING OF FACT The Veteran's right inguinal herniorrhaphy scar is productive of pain. CONCLUSION OF LAW The criteria for a disability rating of 10 percent, but no higher, for a right inguinal herniorrhaphy scar are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Codes (DCs) 7800-7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1975 to October 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board videoconference hearing in May 2021 before the undersigned Veterans Law Judge. A transcript of the hearing has not yet been associated with the file. However, the Board notes this is of no prejudice to the Veteran as the Board is granting the appeal, and a copy of the hearing transcript will be associated with the claims file in the ordinary course of business. Entitlement to a disability rating for a right inguinal herniorrhaphy scar The Veteran seeks a 10 percent disability rating for his right inguinal herniorrhaphy scar. Disability evaluations (ratings) are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. § Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. See 38 C.F.R. § 4.7. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Effective August 13, 2018, VA amended its regulations governing skin disabilities. VA's intent is that the 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. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 13, 2018). As the Veteran filed his claim before the August 13, 2018 effective date, the Board will consider whether either the old or new rating criteria is more favorable to the Veteran. At the outset, the Board notes that DC 7801, 7802 and 7805 are not for application as the Veteran's scars are not deep and are linear and there are no additional disabling effects associated with the Veteran's scars. Under both the old and new rating criteria, DC 7804 provides disability ratings for scars that are unstable or painful. A 10 percent rating is warranted for one or two scars that are unstable or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful. A 30 percent rating is warranted for five or more scars that are unstable or painful. Note (1) states 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, an additional 10 percent should be added to the evaluation based on the total number of unstable or painful scars. Note (3) states that scars evaluated under DC 7800, 7801, 7802, or 7805 may also receive an evaluation under this DC, when applicable. 38 C.F.R. § 4.118, DC 7804. On examination in December 2018, the VA examiner noted that the Veteran had an 8 x. 02 cm scar of the right inguinal area. The December 2018 VA examiner checked a box indicating that the Veteran's scar was not painful or unstable and commented that the scar was barely visible. However, the VA examiner noted that the Veteran's scar caused impairment, such as increased pain with driving, repeated right leg movement, and prolonged standing. The examiner also noted the Veteran's report of on-going pain since his second hernia repair surgery in May 1978, and the Veteran's description of continuous pain relieved with sitting or with lying on his left side. Based on the Veteran's assertions and examination findings, his scar is productive of pain. The Board notes that the Veteran is competent to report symptoms capable of lay observation, such as pain. Layno v. Brown, 6 Vet. App. 465 (1994). Although on examination in December 2018, findings were essentially normal, it was noted that the Veteran reported ongoing, chronic pain. Additionally, the Veteran's medical reports demonstrate that he complained of abdominal pain in the area of his scar. After resolving all doubt in the Veteran's favor, the Board finds that the Veteran's lay statements and the testimony provided by the Veteran during his May 2021 hearing are credible. In light of the foregoing, the assignment of a 10 percent rating under the more appropriate DC 7804 is warranted. 38 C.F.R. § 4.118, DC 7804. The assignment of an evaluation higher than 10 percent is not warranted. As noted, findings associated with the Veteran's scar are essentially normal. Additionally, the record does not show, nor does the Veteran contend, that he has more than one painful scar with numbness. Additionally, the Board notes that the Veteran specifically seeks a 10 percent rating. See February 2019 Notice of Disagreement. During the May 2021 hearing, the Veteran and his representative indicated that there were no other problems with the hernia and acknowledged the scar does not meet the measurement requirements for higher or separate ratings. The 10 percent rating is based on the Veteran's complaints, the December 2018 VA examination report, as well as VA medical reports, which reveal pain. Any functional impairment due to pain of the scar is contemplated by the assigned 10 percent rating. The record establishes that the Veteran has pain of the right inguinal herniorrhaphy scar. The criteria for an initial rating of 10 percent, but no higher, are met. The appeal is granted. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Battaile 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.