Citation Nr: 21042559 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 15-44 085 DATE: July 13, 2021 ORDER Entitlement to a compensable rating for a right arm scar (the residuals of a tuberculosis (TB) test) is denied. FINDING OF FACT The Veteran's right arm scar is stable and non-tender with a total area of less than 929 square centimeters. CONCLUSION OF LAW The criteria for a compensable rating for a right arm scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, DC 7802, 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active service with the United States Army from May 1986 to August 1995, April 2006 to June 2007, and May 2009 to May 2011. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019 and March 2021, the Board remanded the claim for development including a new VA examination. The Veteran was afforded a new VA examination in April 2021. After a Supplemental Statement of the Case (SSOC), the claim is back before the Board. Increased Rating Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Additionally, the evaluation of the same disability under several DCs, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); see also 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.1, 4.2. As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. In rating cases, separate ratings can 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, 126 (1999). VA's determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he should have a compensable rating for his right arm scar. In November 2015, he stated he had total and permanent disfiguring with hyperpigmentation. He also reported a history of tender and unstable scarring. See VA 21-4138, Statement in Support of Claim received November 2015. The Veteran's right arm scar is currently rated under DC 7805 effective May 19, 2011, as noncompensable. Under Diagnostic Code 7802, for scars, not of the head, face, or neck, that are not associated with underlying soft tissue damage, a 10 percent rating is warranted for area or areas of 144 square inches (929 square centimeters). 38 C.F.R. § 4.118, DC 7802. Under Diagnostic Code 7804, for scars that are unstable or painful, a 10 percent rating is warranted for one or two scars; a 20 percent is warranted for three to four scars; a 30 percent rating is warranted for five or more scars. 38 C.F.R. § 4.118, DC 7804. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, DC 7804, Note (1). 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. 38 C.F.R. § 4.118, DC 7804, Note (2). Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an additional rating under Diagnostic Code 7804, when applicable. 38 C.F.R. § 4.118, DC 7804, Note (3). Under Diagnostic Code 7805, other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800 to 7804 under an appropriate diagnostic code. 38 C.F.R. § 4.118, DC 7805. The Board finds that the preponderance of the evidence is against a finding that the Veteran's right arm scar is compensable. The Veteran had a VA examination of his scar in February 2012. At that time, the Veteran's scar was not painful, or unstable. The examiner noted that there was no frequent loss of covering skin over the scar. The scar was on the Veteran's right upper extremity and measured one centimeter by one centimeter. See VA Examination received February 2012. Then in April 2021, the Veteran had another VA examination. The Veteran reported that the right arm scar had its onset around 1988 when he had a TB test. He reported that the scar developed on his right forearm and had stayed about the same since then. The Veteran had a scar measuring 1.5 centimeters by 1.5 centimeters on his right upper extremity. The examination reported that the Veteran's right arm scar was not painful or unstable. The scar was not tender to palpitation. The total area of the one scar was 2.25 centimeters squared. See C&P Exam received April 2021. As noted above, this scar has been rated under DC 7805 effective May 19, 2011. The DC 7805 for "other" scars is a noncompensable code. The Board has considered the other Diagnostic Codes pertaining to scars, but a higher rating for the Veteran's "other" scar is not supported by any other relevant DCs. The Veteran did not have scarring on the head, neck, or face. The Veteran also did not have one scar or multiple scars equaling 929 square centimeters. The Veteran's one scar did not involve underlying soft tissue damage. Lastly, the Veteran's scar does not appear to be unstable or painful, making Diagnostic Code 7804 inapplicable. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects and that the Veteran is competent to report observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran reported that his scar had a history of being tender and unstable. However, the Board noted that the Veteran referenced his military records of his scar being tender in June 1990, and in 1992. These particular incidents, the Veteran points to, as a history of a tender scar are from prior to his leaving the service, and long before he filed this claim. The Veteran's statements do not clearly support that he continues to have an ongoing or chronically tender scar on his right arm or that the scar has been tender or unstable at any time since he filed this claim. See VA 21-4138 received November 2015, VA Examination received February 2012, C&P Exam received April 2021. Moreover, the Board finds the evidence in the VA examinations to be significantly more probative than the Veteran's lay assertions. On both examinations, the scar was not tender, and stable. Therefore, the Board finds that a rating under DC 7805 is appropriate for the Veteran's non-tender and stable scar of his right arm. Additionally, medical records do not show, that the Veteran's scar is manifested by any disabling effects that would meet one of the compensable rating criteria provided under Diagnostic Codes 7800 to 7804. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a compensable rating for his scar. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.