Citation Nr: 21042216 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 12-97 897A DATE: July 12, 2021 ORDER From October 17, 2004 to April 24, 2014, a 20 percent rating is granted for service-connected right-hand burn scar residuals. FINDING OF FACT The probative evidence of record including multiple VA treatment records and the Veteran's own competent and credible testimony support a finding that, from October 17, 2004 to April 24, 2014, the Veteran's right-hand burn scar residuals have been both unstable and painful. CONCLUSION OF LAW From October 17, 2004 to April 24, 2014, the criteria have been met for an initial 20 percent rating for right-hand burn scar residuals. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from March 1974 to March 1977, October 1994 to March 1995, November 1995 to July 1997, and November 2003 to October 2004. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision. In November 2018, a hearing was held before the undersigned; a transcript of the hearing is associated with the record. The Board remanded these matters in April 2019, March 2020 and December 2020. The Board notes that the Veteran's evaluation for service-connected right-hand burn scar residuals was combined with his surgical bilateral knee scars on April 25, 2014. The Veteran has not appealed the rating of this combined evaluation and therefore this issue is not before the Board. From October 17, 2004 to April 24, 2014, a 20 percent rating is granted for service-connected right-hand burn scar residuals. Legal Criteria VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after 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. Prior to August 13, 2018, Diagnostic Code 7801, was for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear. Under these criteria, a scar with 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 scar with an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) warrants a 20 percent rating. A scar with an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) warrants a 30 percent rating. A scar with an area or areas of 144 square inches (929 sq. cm.) or greater warrants a 40 percent rating. 38 C.F.R. § 4.118. Prior to August 13, 2018, Note 1 to Diagnostic Code 7801 instructed that a deep scar is one associated with underlying soft tissue damage. Id. Since August 13, 2018, a 10 percent rating is assigned for burn scars or scars due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. Diagnostic Code 7801 was otherwise unchanged by the August 13, 2018 amendments. Prior to August 13, 2018, Diagnostic Code 7802, was for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that were superficial and nonlinear. Under these criteria, a scar with an area or areas of 144 square inches (929 sq. cm.) or greater warrants a 10 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7802 instructed that a superficial scar was one not associated with underlying soft tissue damage. Id. Since August 13, 2018, Diagnostic Code 7802 is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7802 was otherwise unchanged by the August 13, 2018 amendments. A 10 percent rating is assigned when there are one or two scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note (1). Diagnostic Code 7804 was not changed by the August 13, 2018, amendments. Any disabling effects not considered in a rating under diagnostic codes 7800-04 should be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. Diagnostic Code 7805 was not changed by the August 13, 2018, amendments. Factual Background A July 2005 private treatment note indicates that the Veteran has burn scars of the right hand. The Veteran indicated that he has burning pain in his right hand. A June 2007 VA treatment record indicates that, as of 2004, the Veteran has a diagnosis of bilateral chemical burns of the hands with residual unstable scarring in both thumb web spaces. The Veteran's burn scar of the right hand was measured at 6 cm by 7 cm. See January 2021 VA examination. A December 2007 private treatment note indicates that the Veteran has itching, shedding and crusting of the right hand and he must wear burn gloves. A March 2010 VA treatment indicates that the Veteran has a history of burns on his right hand with contractions and has times when his skin gets worse and opens. The Veteran reported that he must wear burn gloves. At a December 2010 VA examination, the conducting physician indicated that the Veteran had a scar on his right hand as a result of a chemical burn which results in skin breakdown every two to four weeks. At a May 2011 VA treatment, the Veteran reported that he his chemical burn in his right hand continues to bother him greatly. The Veteran testified at the Board hearing that when the skin falls off of his right hand twice a month and it feels like having several paper cuts. The Veteran testified that he has excruciating pain in his right hand. Analysis The Board finds that from October 17, 2004 to April 24, 2014, an initial 20 percent rating is granted for service-connected right-hand burn scar residuals. The evidence shows that during this time period, the Veteran's burn scar residuals of the right hand were both painful and unstable. This is consistent with the findings of the June 2007 VA treatment which indicates that as of 2004, the Veteran has a diagnosis of bilateral chemical burns of the hands with residual unstable scarring in both thumb web space. The Board also assigns probative value to the Veteran's competent and credible testimony which indicates that his right-hand burn scars causes him excruciating pain. Accordingly, the Board finds that the preponderance of the evidence is in favor of a finding that the Veteran's burn scar residuals of the right hand were both painful and unstable. Thus, an initial 20 percent rating is warranted for the entire appellate period under DC 7804. What remains for consideration is whether a still higher, 40 percent rating is warranted for the Veteran's right-hand burn scar residuals. The Board notes that the Veteran's right-hand burn scar is 42 cm2 and accordingly does not meet the criteria for a higher rating under DC 7801. The Board also notes that the Veteran does not have three or four scars which are unstable and painful or five or more scars which are unstable or painful during this time period and accordingly does not meet the criteria for a higher rating under DC 7804. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander Bahus 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.