Citation Nr: 21041093 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 18-29 226 DATE: July 8, 2021 ORDER Entitlement to a compensable rating for a ventral hernia scar prior to July 1, 2018 is denied. Entitlement to a rating in excess of 10 percent for a ventral hernia scar from July 1, 2018 to January 31, 2021 is denied. Entitlement to a rating in excess of 20 percent for a ventral hernia scar from February 1, 2021 is denied. FINDINGS OF FACT 1. Prior to July 1, 2018, the Veteran had one ventral hernia scar that was not painful or unstable and did not have an area of at least 6 square inches (39 sq. cm). 2. From July 1, 2018 to January 31, 2021, the Veteran had one ventral hernia scar that was painful, but not unstable, and did not have an area of at least 6 square inches (39 sq. cm). 3. From February 1, 2021, the Veteran had one ventral hernia scar that was painful and unstable; but did not cover an area of at least 6 square inches (39 sq. cm). CONCLUSIONS OF LAW 1. The criteria for a compensable rating for a ventral hernia scar prior to July 1, 2018 have not been met. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7805. 2. The criteria for a disability rating in excess of 10 percent for a ventral hernia scar from July 1, 2018 to January 31, 2021 have not been met. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7804. 3. The criteria for a disability rating in excess of 20 percent for a ventral hernia scar from February 1, 2021 have not been met. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty training in the Army National Guard from October 1979 to April 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to a compensable rating for the Veteran's service-connected ventral hernia scar under DC 7805. In February 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The matter was Remanded in March 2021 for additional development. An VA examination was conducted in April 2021 that substantially complies with the directives of that Remand. By a rating action dated in April 2021, the rating assigned for the Veteran's ventral hernia scar was increased to 10 percent, effective from July 1, 2018, and to 20 percent, effective from February 1, 2021. INCREASED RATING As noted above, the RO granted a 10 percent evaluation effective July 2, 2018 and a 20 percent evaluation effective February 1, 2021 under DC 7804. The RO assigned these ratings without discontinuing the earlier, noncompensable rating under DC 7805 that was assigned from April 23, 1980. The Board will consider both scar ratings (under DC 7804 and DC 7805) on appeal, as they relate to the same scar. See 38 C.F.R. § 19.35. With consideration that if ratings are to be assigned under various diagnostic codes, none of the symptomatology of any one condition should duplicate, or overlap, the symptomatology of another condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In this way, so-called "pyramiding" is avoided. See 38 C.F.R. § 4.14 (2016). The Board notes that VA amended the criteria for rating skin disabilities during the claim period, effective from August 13, 2018. With regard to the effective date of the new criteria, VA indicated in the Supplementary Information to the Final Rule that its "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." The Veteran's claim in this case was pending prior to the August 13, 2018 effective date of the new criteria, and therefore, the Board will consider both the old and new criteria and apply the more favorable criteria. Prior to August 13, 2018 DC 7800 provides for burn scars of the head, face or neck, scars of the head, face or neck due to other causes, or other disfigurement of the head, face, or neck. See 38 C.F.R. § 4.118, DC 7800. Under DC 7801 a 10 percent rating is assigned for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear with an area or areas of at least 6 square inches (39 sq. cm) but less than 12 square inches (77 sq. cm). See 38 C.F.R. § 4.118, DC 7801 Under DC 7802 a 10 percent rating is assigned for scars not of the head, face or neck, which are superficial and nonlinear and cover an area of 144 square inches or greater. See 38 C.F.R. § 4.118, DC 7802. Under DC 7804, one or two scars that are unstable or painful warrant a 10 percent rating. A 20 percent rating requires three or four scars that are unstable or painful. A 30 percent rating requires five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an additional rating under DC 7804, when applicable. See 38 C.F.R. § 4.118, DC 7804. Under DC 7805, any disabling effects of other scars (including linear scars), and other effects of scars rated under DCs 7800, 7801, 7802, and 7804 not considered in a rating provided under DCs 7800-7804 are to be rated under an appropriate DC. See 38 C.F.R. § 4.118, DC 7805. Since August 13, 2018 DC 7800 remained the same. DC 7801 was amended to remove "deep and nonlinear scars" which was replaced with "underlying soft tissue damage." DC 7802 was amended to remove "superficial and nonlinear" and was replaced with "not associated with underlying soft tissue damage." Note (1) now provides that for purposes of DCs 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Note (2) changed to a separate evaluation may be assigned for each affected zone of the body. Combine the separate evaluations under § 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 this diagnostic code. DCs 7804 and 7805 were unaffected by the revisions. 1. Entitlement to a compensable rating for a ventral hernia scar prior to July 1, 2018 is denied. In March 2017, the Veteran was afforded a VA examination (VAX). He had one surgical scar on his trunk/epigastric area that was linear and measured 7.5 cm. He did not have any scars or disfigurement of the head, face, or neck. He did not have any scars on his right or left upper or lower extremities. He reported that the scar had remained stable. The VA examiner determined that his surgical scar was not painful or unstable. There are no relevant treatment records for this period that address the nature and severity of the Veteran's ventral hernia scar. A compensable rating is not warranted prior to July 1, 2018. The Veteran had one ventral hernia scar that was not painful or unstable and did not have an area of at least 6 square inches (39 sq. cm). Consideration has been given to the Veteran's February 2021 hearing testimony wherein he reported having pain since he got his surgery for his stomach. He described the pain as being inside the scar, and it hurt when he touched or rubbed his scar. He felt like the scar limited his motion, as it felt like it pulled when he moved. The statement is inconsistent with the evidence of record. The March 2017 VA examiner clearly indicated that the scar was not painful. The contemporaneous findings of the March 2017 examination are found to be more probative than history reported by the Veteran nearly four years later. Curry v. Brown, 7 Vet. App. 59, 68 (1994); see also See Pond v. West, 12 Vet. App. 341, 345 (1999) (finding that the Board can consider the personal interest of a veteran in its credibility determination). The Board has considered whether a higher rating would be warranted under 7800, 7801, or 7802. However, a rating under 7800 is not warranted as the Veteran does not have a scar of the head, face, or neck. A rating under 7801 is not warranted as the Veteran does not have a scar or scars with an area or areas of at least 6 square inches (39 sq. cm.). A rating under 7802 is not warranted as the Veteran does not have a scar or scars with an area or areas of 144 square inches (929 sq. cm.). Thus, the Board concludes that the preponderance of the evidence is against the claim for a compensable rating prior to July 1, 2018 for a ventral hernia scar. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply and both aspects of the claim must be denied. See 38 U.S.C. § 5107(b); see also, e.g., Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"). 2. Entitlement to a rating in excess of 10 percent for a ventral hernia scar from July 1, 2018 to January 31, 2021 is denied. 3. Entitlement to a rating in excess of 20 percent for a ventral hernia scar from February 1, 2021 is denied. In July 2018, the Veteran was afforded another VAX. He had one surgical scar on his trunk/epigastric area that was linear and measured 8 cm. He did not have any scars or disfigurement of the head, face, or neck. He did not have any scars on his right or left upper or lower extremities. His scar was mildly tender to palpation and painful. His scar on his trunk/epigastric area was not unstable with frequent loss of covering of skin over the scar. The scar on his trunk was not due to burns. The Veteran was afforded another VAX in April 2021. He had one surgical scar on his trunk/epigastric area with underlying tissue damage that measured approximately 4.0 cm squared. His one surgical scar was on his trunk/epigastric area was painful, hypopigmented, and unstable. He had loss of covering of skin over the scar. He reported daily persistent pain, itching, and redness. He did not have any scars or disfigurement of the head, face, or neck. He did not have any scars on his right or left upper or lower extremities. The scar on his trunk was not due to burns. A rating in excess of 10 percent from July 1, 2018 to January 31, 2021 is not warranted under DC 7804. Treatment records do not indicate that the Veteran had an unstable scar. The July 2018 VAX indicated that his scar was not unstable. Thus, the weight of the evidence is against a finding that his scar was unstable from July 1, 2018 to January 31, 2021. A rating in excess of 20 percent is not warranted from February 1, 2021. The Veteran is service connected for one scar. In order to be entitled to a 30 percent rating he would have to have five or more scars that are unstable or painful. This is simply not the case. The existing VA treatment records do not contradict these findings. It is again noted that the Veteran testified that his scar was unstable. However, prior to the February 2021 examination, there is simply no objective medical evidence supporting this contention. Rather, as noted, the July 2018 VAX provided clear findings that the scar was not unstable. The Board has considered whether a higher rating would be warranted under 7800, 7801, or 7802. However, a rating under 7800 is not warranted as the Veteran does not have a scar of the head, face, or neck. A rating under 7801 is not warranted as the Veteran does not have a scar or scars with an area or areas of at least 6 square inches (39 sq. cm.). A rating under 7802 is not warranted as the Veteran does not have a scar or scars with an area or areas of 144 square inches (929 sq. cm.). A separate compensable rating under DC 7805 is not warranted. The Veteran's painful scar resulting in limitation of motion and unstable scar are symptoms fully contemplated by pain mentioned in DC 7804. In this case, the Board finds that to assign separate compensable ratings under DC 7804 and DC 7805 would violate the prohibition against pyramiding. See 38 C.F.R. § 4.14; also see Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Thus, the Board concludes that the preponderance of the evidence is against the claim for a rating in excess of 10 percent from July 1, 2018 to January 31, 2021 and a rating in excess of 20 percent from February 1, 2021 for a ventral hernia scar. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply and both aspects of the claim must be denied. See 38 U.S.C. § 5107(b); see also, e.g., Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Smith, 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.