Citation Nr: 21041006 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-61 194 DATE: July 7, 2021 ORDER Entitlement to a 30 percent rating for linear scars, status post left orchiectomy, lymph dissection, and right hand injury, effective August 27, 2015, is granted. FINDING OF FACT The evidence of record indicates that the Veteran's status post left orchiectomy scar is painful and unstable; the Veteran's lymph dissection and right hand scars are painful but not unstable, and no scars were shown to cause a separately compensable limitation of motion. CONCLUSION OF LAW The criteria for entitlement to a 30 percent rating for linear scars, status post left orchiectomy, lymph dissection, and right hand injury have been met effective August 27, 2015. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.118, Diagnostic Code (DC) 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1992 to August 1996. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in September 2020. The hearing transcript is of record. The Board remanded the claim in February 2021 for further development by the RO. The case has been returned to the Board for further appellate action. Following remand, the Board granted a 20 percent rating for the Veteran's scars, effective March 18, 2021, in a March 2021 rating decision. As this is not a full grant of the issues, the claim remains in appellate status and the Board will proceed to adjudicate the same. Entitlement to a 30 percent rating for linear scars, status post left orchiectomy, lymph dissection, and right hand injury A disability rating is determined by the application of 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 conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as 'staged ratings.' Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's scars are rated under DC 7804. 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 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 code, when applicable. The Veteran underwent a VA examination in October 2015. The examiner noted a linear scar, status post orchiectomy; a linear scar, status post abdominal lymph node dissection; and linear right hand injury scars. A single scar, the mid-abdomen scar, was noted as painful. No unstable scars were noted. No scars both painful and unstable were noted. The right hand scars were noted as having a length of 2 cm and 0.8 cm. The anterior trunk scars were noted as having lengths of 38 cm and 7 cm. No scars were noted to cause limitation of function or impact the ability to work. The Veteran underwent a second VA examination in May 2018. No scars were noted as painful or unstable. The examiner noted that a right hand scar had a length of 1 cm and the anterior trunk scars had lengths of 30 cm and 7 cm respectively. No scars were noted to cause limitation of function or impact the ability to work. The Veteran underwent a third VA examination in March 2021. The examiner noted four scars as a correction of a previous diagnosis: namely, the right hand injury was clarified as being two traumatic laceration scars of the dorsum 5th digit and the dorsum 2nd digit. The surgical scar of the midline abdomen from the lymph node dissection and the surgical scar of the left inguinal area from the left orchiectomy were also noted. The Veteran reported intermittent protrusion of staples of the abdominal wound once or twice per year; the last episode was approximately 14 years ago, and the abdominal and inguinal scars have been stable since. The Veteran reported that the right hand scar was stable. The examiner noted that the Veteran also had a history of a wrist tendon injury in 2020 with a subsequent surgery. The Veteran reported current symptoms of the abdominal and inguinal scars as tenderness and pain, to include as due to movement and weather. He also reported pruritis in the left inguinal scar; this occurs 3-4 times per month and last from 30 minutes to all day. The Veteran reported current symptoms of the right hand scars as pain and pain with use. The examiner noted the presence of four painful scars; no scars were unstable. The right hand scars were noted to have a length of 1.2 by 0.1 cm and 2.1 and 0.1 cm, respectively. Both were tender to palpation but not unstable nor did they have underlying soft tissue damage. The anterior trunk scars were noted to have a length of 37 by 0.7 cm and 6.1 by 0.5 cm, respectively. Both were tender to palpation but not unstable nor did they have underlying soft tissue damage. The combined total area for the right hand scar was 0.33 cm2 and for the anterior trunk, 28.95 cm2. The examiner noted that the scars do not result in limitation of function. The examiner indicated that no deep tissue involvement was noted for any scar. The examiner also noted functional impact. The anterior trunk scars limit the Veteran's ability to lift more than 50 pounds and limit his repetitive bending and lifting of lighter weights to 20 to 30 minutes before needing a break. They also limit impact activities and sit-ups. Sitting requires shifting every 30 minutes. Right hand use was limited, to include tool usage and gripping to 20 to 30 minutes. The examiner also noted that a review of treatment records did not show evidence of right hand functional loss due to his right hand scars, and the functional decrease in right hand usage is most likely due to the wrist injury that required surgical repair. The right hand scars did not show evidence of localized scar adhesions or damage to localized tendinous function upon examination. Turning to the lay evidence of record, the Veteran testified at the September 2020 Board hearing that his orchiectomy scar is itchy, and this leaves the skin red, raw and blistered. The lymph dissection scar is painful and unstable with staples coming through; he also stated that this limited his bending and twisting. Finally, he stated that the 5th digit scar causes his finger to not move like it used to. On review of the record, the Board finds that, affording the Veteran the benefit of the doubt, the disability picture presented more accurately reflects a 30 percent disability rating, but no higher, throughout the appellate period. The March 2021 VA examiner clarified that the Veteran has four painful scars. Though no VA examiner identified the presence of unstable scars, the Veteran reported itchy, raw, blistered skin on the orchiectomy scar. The March 2021 examiner noted pruritis on this scar. As such, the Board, affording the Veteran the benefit of the doubt, finds that the orchiectomy scar is both painful and unstable. This finding results in the application of Note (2) of DC 7804, which provides that if one or more scars are both painful and unstable, 10 percent shall be added to the evaluation based on the total number of scars. Thus, the Board finds that the Veteran's scars warrant the maximum 30 percent rating available under DC 7804. The Board acknowledges the Veteran's contention that the lymph dissection scar is also unstable; however, the March 2021 VA examination clarified that the intermittent protrusion of staples has not occurred during the appellate period. The Board notes that, even if it found that this scar was both painful and unstable, this finding would not affect the rating. Note (2) provides for a single additional 10 percent regardless of the number of scars both painful and unstable. Here, the Veteran is already in receipt of the maximum available rating. The Board has considered whether the Veteran is entitled to a higher disability rating under alternative diagnostic codes. However, the evidence does not show the Veteran suffers from symptoms better represented by another diagnostic code. Thus, a higher rating under another diagnostic code is not warranted. The evidence of record reveals that the Veteran's scars are not deep and nonlinear, associated with underlying soft tissue damage, or affect the head, face, or neck. Additionally, the Veteran's scars do not cover an area or areas of 144 square inches or greater. Therefore, DCs 7800 through 7802, are not applicable. Moreover, the Board finds that the evidence of record does not reflect any additional disabling effects or limitation of function of the scars under DC 7805 that are not already contemplated by the 30 percent rating under DC 7804, granted herein. The March 2021 VA examiner noted that activities such as repetitive bending, lifting and sitting were limited due to the anterior trunk scar; however, he also reported that the Veteran's scars did not result in a limitation of function. Moreover, functional limitation of the right hand was most likely due to a non-service-connected wrist injury. The Board acknowledges the Veteran's competent and credible reports of relevant observable symptoms, as set out in the VA treatment records and examinations. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, these lay statements are consistent with the assigned rating. To the extent that the Veteran believes that a higher rating is warranted, this belief is outweighed by the remaining evidence of record, as summarized above. The Board recognizes the Veteran's contention that separate ratings are warranted for each scar. See May 2021 appellate brief. However, DC 7804 provides for a collective rating. While the Board is sympathetic to the Veteran's assertions, the Board is bound by the applicable law and regulations. Under the facts and procedural history of the appeal, the effective date of August 27, 2015, is assigned. 38 C.F.R. § 3.400. The Board finds that it is not factually ascertainable that an increase in severity occurred within the year preceding receipt of the claim. The Board also notes that the Veteran submitted an intent to file a claim, received on February 25, 2013; however, the Veteran's complete application was not received within one year. As such, VA will not consider the complete claim filed as of the date of receipt of the intent to file. 38 C.F.R. § 3.155. In sum, the Board finds that a disability rating of 30 percent, but no higher, effective August 27, 2015, is warranted for the Veteran's abdominal scar, inguinal scar, and two right hand scars. To the extent that the Veteran contends entitlement to a higher rating, the preponderance of the evidence is against the claim; there is no reasonable doubt to be resolved; and any further increased rating is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Minaya, 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.