Citation Nr: A22024524 Decision Date: 12/02/22 Archive Date: 12/02/22 DOCKET NO. 211221-207046 DATE: December 2, 2022 ORDER From January 31, 2020, a single rating of 10 percent under Diagnostic Code 7804, but no higher, for two surgical scars of the left buttock, is granted. A compensable rating under Diagnostic Code 7802 for two surgical scars of the left buttock is denied. FINDINGS OF FACT 1. From January 31, 2020, the Veteran has two painful, stable scars of the buttock. 2. The Veteran's buttock scars are not associated with any underlying soft tissue damage, and they are less than 929 square centimeters in total area affected. CONCLUSIONS OF LAW 1. From January 31, 2020, the criteria for a disability rating of 10 percent, but no higher, for two surgical scars of the left buttock, are met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.118, Diagnostic Code 7804. 2. The criteria for a compensable disability rating for two surgical scars of the left buttock are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7802. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1968 to April 1970. In August 2021, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the issue of an increased rating for his surgical scars, most recently addressed in a May 2021 rating decision. As will be discussed in greater detail below, the Veteran's claim has been continuously pursued through several supplemental claims and a claim for Higher Level Review, since an initial claim for service connection for residuals of pilonidal cyst removal received by VA on January 31, 2020. See January 2020 VA Form 20-0995 Supplemental Claim Application. In response to the August 2021 supplement claim, the agency of original jurisdiction (AOJ), in November 2021, issued the supplemental claim decision on appeal, which implicitly found that new and relevant evidence had been received as this decision considered all evidence received up to that time, and denied the claim on the merits based on the evidence of record at the time of that decision. Therefore, the Board may only consider the evidence of record at the time of the decision on appeal and any evidence submitted during an applicable evidentiary window. In a December 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). In May 2022, the Veteran testified at a video virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. 1. Evaluation of two residuals surgical scar, left buttock The Veteran seeks an increased rating for his surgical scars, which are rated under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7802 and DC 7804. The Veteran argues that only one of his scars has been rated as painful, and he requests that both scars be listed as painful. See May 2021 and August 2021 VA Forms 21-4138 Statement In Support of Claim. By way of procedural history, the Veteran's scars were previously rated under only DC 7802, based on a rating decision from April 2020 which discussed only one V-shaped surgical scar. That rating decision stemmed from the Veteran's initial claim for service connection, received by VA on January 31, 2020. See January 2020 VA Form 20-0995, Supplemental Claim Application. The Veteran did not expressly appeal the initial April 2020 rating decision. Instead, he filed a new claim for service connection in June 2020, again for residuals of his underlying pilonidal cystectomy, utilizing a VA Form 21-526EZ claim form. Yet, still within the applicable appeal period to appeal the April 2020 decision, the Veteran appealed a December 2020 rating decision which had decided that issue, by submitting a March 2021 VA Form 20-0995 Supplemental Claim Application and new and relevant evidence was added to the record, to include April 2021 VA examination reports. Then, a December 2020 rating decision addressed the same underlying disabilityresiduals of pilonidal cyst removalas the April 2020 rating decision had. The December 2020 decision continued the previous 0 percent rating under DC 7802, but it also granted a new rating of 10 percent under DC 7804 based upon a finding that the Veteran's residuals of surgery manifested as painful scars. Considering the above, and specifically considering the Veteran's filing of a supplemental claim in March 2021 within the required appeal time frame to appeal the April 2020 rating decision, the Board finds the Veteran has continuously pursued his claim since his initial January 31, 2020, claim for service connection. See 38 C.F.R. § 3.2500(c). Thus, the rating period on appeal extends to approximately January 31, 2020. 38 C.F.R. § 3.2500(h). *** Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1995). A veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35 (1993). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The effective date for an increase will typically be the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o). However, for an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date; otherwise, the effective date will be the date of receipt of the claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2). For earlier effective date increased rating claims, if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(2); VAOPGCPREC 12-98 (Sept. 23, 1998). Scars are rated under 38 C.F.R. § 4.118, DCs 7800 through 7805. DC 7800 rates various scars of the face, head or neck, which is not applicable here. DC 7801 rates scars not of the head, face or neck, that are associated with underlying soft tissue damage, which is also not applicable here. DC 7802 rates scars not of the head, face or neck, that are not associated with underlying soft tissue damage. Under DC 7802, a scar with an area of 144 square inches (929 square centimeters) or greater warrants a 10 percent disability rating. There is no DC 7803. DC 7804 provides ratings for other unstable or painful scars. A 10 percent rating is assigned for one or two scars that are unstable or painful. A 20 percent rating is assigned for three or four scars that are unstable or painful. A 30 percent rating is assigned for five or more scars that are unstable or painful. Note (2) to DC 7804 instructs that if one or more scars are unstable and painful, then an additional 10 percent should be added to the total evaluation based on the above criteria. DC 7805 instructs that for other disabling effects not considered in a rating provided under DCs 7800-7804, the rater should evaluate under another appropriate diagnostic code. *** The Veteran underwent a VA examination for his claim in March 2020. The examiner documented a well-healed, linear, transparent non-tender V-shaped (3.5 and 2.5 cm) surgical scar in the cleft of the buttock. The Veteran reported there had been no reoccurrences of the pilonidal cyst, and that there were no signs of eczema upon examination. The examiner did not utilize VA's formatted disability questionnaire for scars. Notably, the examiner made no comment of whether the scars had been palpated or otherwise manipulated upon examination to determine if they were painful on palpation. See March 2020 Compensation and Pension (C&P) Examination, pp. 2-4. At a later VA examination in April 2021, the examiner utilized VA's formatted Scars / Disfigurement Disability Benefits Questionnaire. The examiner documented two scars on the posterior trunk over the buttock cleft, of lengths 4 and 3 centimeters respectively, each approximately 0.5 centimeters wide. This yielded a total area of approximately 3.5 square centimeters when considering both scars. Each scar was tender upon palpation. There was no underlying tissue damage, hypopigmentation, hyperpigmentation, induration or inflexibility, nor abnormal texture noted for either scar. Neither scar was unstable. The examiner commented that the scars became more painful after sitting on a hard surface for over 60 minutes. See April 2021 C&P Examination. The Board observes a slight discrepancy between the two examiners findings, namely that the first examiner described a single V-shaped scar with two legs of 3.5 and 2.5 centimeters, where the second examiner described these two legs of the V-shape as each constituting a separate scar. Additionally, the second examiner estimated the lengths of the two scars to be slightly longer than the first examiner, noting lengths approximately one-half centimeter longer for each, when compared against the first examiner's notations of the two legs of the V-shape. Resolving the discrepancy of evidence in the Veteran's favor, the Board finds that there are two separate scars, and accepts the larger of the length and area estimates. 38 C.F.R. § 4.3. After reviewing the competent lay and medical evidence, the Board finds that a compensable evaluation is not warranted under DC 7802. Even considering the longer of the size estimates of the Veteran's scars, they total to approximately 3.5 square centimeters, are not thus shown in the record to be greater in area than 144 square inches (929 square centimeters). However, under DC 7804, the Board finds that a 10 percent evaluation is warranted for one or two unstable or painful scars. In this case, as the Veteran has two painful scars from his surgery, a 10 percent evaluation is warranted, in contemplation of both those scars. As neither of the Veteran's scars are shown in the record to be unstable and painful, Note (2) to DC 7804 does not apply. A higher rating of 20 percent or more is not warranted under DC 7804 because there are not three or more unstable or painful scars shown in the record. Indeed, the Veteran testified that he has 2 scars from operation on his pilonidal cyst. August 2022 Hearing Transcript, p.7. The first VA examiner in 2020 did not document any reports of pain for the Veteran's scars. However, the record does not show that the examiner palpated the scar nor inquired about pain upon sitting, each of which were shown in the later examination to have caused pain. The Veteran is competent to report that his scars are painful, and he has credibly done so. Resolving reasonable doubt in the Veteran's favor on this material issue, the Board concludes that the scar condition did not worsen during the appeal period, but rather the Board finds the scars were painful throughout the appeal period, since the Veteran's application for service connection. Thus, the 10 percent rating under DC 7804 should be applied from January 31, 2020. 38 C.F.R. § 3.400(o). As a final consideration, the Veteran and his representatives have repeatedly argued that one of the Veteran's scars on his buttocks is rated as compensable under DC 7804, while the other is rated as noncompensable under DC 7802. The Veteran argues that he should receive two compensable ratings under DC 7804. See, e.g., August 2022 Hearing Transcript, p.2; May 2021 and August 2021 VA Forms 21-4138 Statement In Support of Claim. The facts of this case do not support the award of a compensable rating for each scar. There may have been some confusion based on prior rating actions. The Board's reading of the relevant DCs leads to the following: The assignment of a 10 percent evaluation via this decision under DC 7804 for "one or two scars that are unstable or painful." Additionally, the existing noncompensable evaluation under DC 7802 considers the total area of the two scars together. [Thus, if the area of the scars increases, a change in the rating under DC 7802 may be warranted.] The rating decisions during the appeal process have described that the Veteran has two painful scars and they noted that the Veteran's two scars did not add to an area of greater than 144 square inches or 929 square centimeters. Thus, it is improper to say that the Veteran has one scar with a noncompensable rating and another with a compensable rating. Rather, the Veteran has two scars that are rated togetherthey are assigned a non-compensable rating under DC 7802 (area less than 144 square inches), and they are now both assigned a single compensable rating under DC 7804 (both painful) from January 31, 2020. Accordingly, for the reasons described above, from January 31, 2020, entitlement to a single rating of 10 percent under Diagnostic Code 7804, but no higher, for two surgical scars of the left buttock, is granted. 38 C.F.R. §§ 4.1, 4.3, 4.7. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hermsdorfer, 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.