Citation Nr: 22010584 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 15-41 187 DATE: February 24, 2022 ORDER Entitlement to a rating in excess of 10 percent for scar of the left dorsal wrist is denied. FINDING OF FACT The Veteran has one scar on the left dorsal wrist that is painful but not unstable. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for scar of the left dorsal wrist have not been met. 38 U.S.C.§§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7804 and 7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1974 to January 1981 when he was honorably discharged. This matter comes before the Board of Veterans' Appeals (Board) from a January 2014 rating decision, initially issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's representative filed an informal hearing presentation (IHP) in August 2014 after the rating decision that claimed the Veteran was due a rating of at least 10 percent for the painful scar on his left wrist. In a September 2014 Board decision, it was determined that the IHP constituted a notice of disagreement. The VA had not issued any statement of the case (SOC) and the Board returned the increased rating claim for the left wrist scar for the issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). In October 2016, the RO issued another rating decision granting the Veteran a rating of 10 percent for the painful scar on the left dorsal wrist. However, the VA also issued a supplemental statement of the case (SSOC) in October 2016, confirming and continuing the noncompensable rating for the Veteran's service-connected scar on the left dorsal wrist. A February 2019 rating decision showed the Veteran's receipt of a 10 percent disability rating for a painful left wrist scar, as well as a noncompensable rating for a left wrist scar. In March 2019, the Veteran had a hearing before a Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the electronic claims file. The VLJ clarified the issue of two separate ratings for the left wrist scar. The Veteran identified at the hearing that the left wrist had a single scar and the VLJ determined that the Board hearing would address the one scar and would address the issue of entitlement to an evaluation in excess of 10 percent. During the pendency of the Veteran's appeal, the Board sent a letter to the Veteran, informing him that the VLJ who conducted his hearing was no longer able to participate in the adjudication of his decision. The Board notified the Veteran that he had the right to request another hearing if he so chooses. 38 U.S.C. § 7107(c); 38 C.F.R. §§ 19.3(b), 20.707. Additionally, the Board notified the Veteran that if he did not respond within 30 days of the letter, the Board would assume that he did not want another hearing and would proceed accordingly. In February 2021, the Veteran submitted a letter declining the opportunity for another Board hearing. In an August 2019 decision, the Board remanded the issue for further development and specifically to protect the Veteran's due process rights, as the issue of the left wrist scar was not addressed in the SSOC. Caffrey v. Brown, 6 Vet. App. 377 (1994); 38 C.F.R. § 3.327(a). The matter returned to the Board in March 2021 and was remanded again after the July 2019 VA examination was found to be inadequate due to the fact that the examiner failed to discuss any of the Veteran's symptoms as discussed in the Board hearing or lay statements in the record. In August 2021, the VA issued a letter to the Veteran, informing him that his representative (Military Order of the Purple Heart) may no longer represent him before the VA. The letter fully informed the Veteran of various actions that he could take in respect to the removal of the representative. The Veteran was then provided 30 days to respond to the letter, but he did not. Based on the notice, the Board deemed the Veteran self-represented and went forward with consideration of the claim. The issue returned to the Board again in September 2021 and the Board remanded the matter once more for an addendum opinion to offer further clarification to determine whether the Veteran's scar had blistering that made it equivalent to an unstable scar and to distinguish between functional impairment caused by the Veteran's left wrist scar, opposed to functional impairment caused by his other service-connected left wrist disabilities. The Board is satisfied that there was substantial compliance with its remand orders and is now prepared to fully adjudicate the issue at hand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a rating in excess of 10 percent for scar of the left dorsal wrist The Veteran seeks entitlement to a disability rating in excess of the current 10 percent evaluation for his scar of the left dorsal wrist. Specifically, the Veteran claims that the scar has progressed and worsened since the 10 percent rating was granted. Disability evaluations are 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 the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, assignment of staged ratings would be permissible. See Fenderson v. West, 12 Vet. App. 119 (1999). During the pendency of the appeal, the criteria for evaluating certain disabilities of the skin were revised, effective August 13, 2018. See 38 C.F.R. § 4.118, (Diagnostic Codes 7801, 7802, 7805, and 7806). The amended regulations are only applicable to claims received on or after August 13, 2018, or where a claimant requests readjudication under the new criteria. See 83 Fed. Reg. 32592 (August 13, 2018) (codified at 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7805, 7806). The Veteran has not specifically requested consideration under the revised criteria of Codes 7801, 7802, 7805, or 7806. Additionally, the Veteran's 10 percent rating is assigned under Diagnostic Code 7804, which was not changed. Therefore, the amended criteria do not play a substantial role in the claim and the Board will use the old criteria in adjudicating the Veteran's claim. Under Diagnostic Code 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, with a maximum 30 percent rating warranted for 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. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1). If one or more scars are both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (2). Scars can also receive separate evaluations under Diagnostic Codes 7800, 7801, 7802, and 7805, despite also being rated under Diagnostic Code 7804. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (3). Under Diagnostic Code 7801, a 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear, at least 6 square inches (39 square centimeters). Id. Higher ratings are available for deep and linear scars that affect a larger area, measuring at least 12 square inches. A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801, Note (1). Under Diagnostic Code 7802, a maximum 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are superficial (not associated with soft tissue damage) and nonlinear, affecting an area or areas of 144 square inches (929 sq. cm.) or greater. Id. Under Diagnostic Code 7805, any other scars, including linear scars, are to be rated based on any disabling effects and the appropriate diagnostic code for such effects. Diagnostic Code 7805 directs that any disabling effects not considered in Diagnostic Codes 7801 through 7804 should be evaluated under the appropriate diagnostic code. This instruction essentially directs that scars may be rated for the functional impairment caused by the scar. In October 2013, the Veteran received a VA examination. The examiner found the scar to be superficial and nontender, with no ulceration or skin breakdown. It was noted that there was no abnormal texture, asymmetry, induration, inflammation, edema, or keloid formation. Additionally, the examiner did not find any underlying soft tissue loss or disabling effects. The examination also noted that the total area of the scar was not greater than 39 square centimeters (six square inches). In October 2015, the Veteran was evaluated at the University of CaliforniaSan Diego. The examiner examined the scar and determined it to be a well-healed longitudinal incision across the midline of the dorsal wrist. It was noted to be soft, well-healed and distinctly hypersensitive along the incision. The scar was not found to be unstable or to have a total area greater than 39 square centimeters. The Veteran received another VA examination in September 2016. The Veteran reported that the scar is hypersensitive, and he is forced to wear protective padding around it to avoid contact. He reported intense pain if he bumps or hits the scar. The scar is found to be painful but not unstable and not with a total area greater than 39 square centimeters. In March 2018 the Veteran had another VA examination. The Veteran was found to have one painful scar on the left dorsal wrist. The scar was not found to be unstable. The scar was tender on palpation and measured at 9 centimeters. The total area of the scar was less than 39 square centimeters. Finally, the examiner did not find the scar to cause the Veteran any limitation of function. In March 2019 the Veteran was afforded the opportunity to testify at a Board hearing before a VLJ. The Veteran testified that the scar was tender, superficial, and painful. He reported that it affected his movement and his grip while also decreasing his endurance. The Veteran claimed that he experienced intense itching around the scar and that it would occasionally blister and bleed. He stated that the pain and itch never go away. The Veteran states that the scar blisters about once a week. Furthermore, he reported that he has used an anti-itch cream which has lightened the pain but was unable to stop the itching. Finally, it was noted at the hearing that the Veteran had a second surgery which has increased the size of the left wrist scar. The Veteran also submitted two buddy statements into the record in March 2019. The first, from Mr. C.A. stated that he observed the Veteran's complaints of intense itching along with bout of redness and swelling of the left wrist, as well as a decreased grip. The second statement, from Mr. E.L.F. noted that the Veteran had a limited range of motion in the left wrist as well as blistering, redness, and obvious swelling of the hand. Mr. E.L.F. also reported that the Veteran had decreased function and usage of the left hand and that he wears a wrist brace and sleeve to protect the wrist every day. Lay evidence that is submitted in the record must be competent and credible. Competent lay evidence is any evidence not requiring that the proponent have any specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2). While the lay statements may be competent to testify to symptoms, the Veteran's friends are, in this case, not competent to provide an opinion regarding the specific issue of an increased rating for the service-connected scar on the left dorsal wrist. As lay people, the Veteran and his friends do not have the education, training, and experience to offer a medical diagnosis or an opinion as to a potential increase in severity of the condition. They also do not possess the requisite training and education to offer an opinion as to whether the Veteran's scar is causing these symptoms they have reported, or if the symptoms are due to the Veteran's other service-connected left wrist disabilities. Therefore, it is outside the competence of the Veteran and his friends in this case because the record does not show that they have the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). In July 2019, the Veteran was again seen for a VA examination. The examiner diagnosed the Veteran with a scar on the left dorsal wrist, related to his left wrist condition. The scar was not found to be painful or unstable upon the examination. Additionally, the scar was found to not have underlying soft tissue damage and was measured to be 1 square centimeter, far below the 39 square centimeters needed for an increased rating. Finally, the examiner found that the scar did not cause the Veteran any limitation of function. The Veteran had another VA examination performed in May 2021. The examiner noted persistent pain, tenderness, and hypersensitivity around the scar along the dorsum of the left wrist and distal forearm. The Veteran also offered a credible history that he suffers from intermittent blistering and swelling of the area three to four times a year. The Veteran described the pain as burning but not unstable. The examiner did not find any underlying soft tissue damage on the examination but did state that the Veteran's scar impacted his ability to work as he is left hand dominant and the painful scar limits his ability to write, grasp objects, or generally use his left hand. The Veteran was noted to have undergone complete left wrist radiocarpal fusion at the Loma Linda VA Medical Center (VAMC) in 2019 and the current scar is a revision of the prior scar from the original 2006 surgery. While the scar is now longer (9.6 cm by 0.3 cm), the scar does not cover 39 square centimeters. Finally, the most recent VA examination was performed in October 2021. The Veteran is found to have a diagnosis of status post fusion of the left scaphoid, peripheral neuropathy of the left upper extremity, and a scar on the left dorsal wrist. The examiner notes that the Veteran's scar is related to the fusion of the left scaphoid and the peripheral neuropathy. However, the examiner states that the scar is not painful or unstable. The examiner noted that the Veteran uses a supportive brace on the left wrist daily and that the Veteran's condition has progressed since its onset. While the examiner noted that the Veteran had continued pain and wounds on the dorsum of the left hand, he found the scar of the left extremity to not be painful. It was reported that no scars were tender to palpation, unstable, with underlying soft tissue damage, or cover a total area of 39 square centimeters or more. The examiner also stated that the Veteran's left wrist scar does not impact his ability to work. The examiner remarked that the Veteran did have healing wounds consistent with blistering or skin covering loss, but the areas where this was apparent were adjacent and parallel to the well healed scar on the midline dorsal aspect of the Veteran's left wrist. The examiner found that the wounds on the left hand were related to the supportive brace that the Veteran wore, as the wounds were within the margins covered by the brace. Additionally, the scar was not inflamed and did not show any signs or damage and was well healed. Finally, the examiner stated that the Veteran's functional loss and inability to carry out daily living activities was due to the injured and surgically repaired wrist and not due to the scar on the wrist. The claims file also has a copious amount of VA medical treatment notes from the San Diego VAMC and Loma Linda VAMC, dating from September 2006 to June 2020. These VA medical records consistently noted the Veteran's left wrist disabilities, surgical repairs, and the left wrist scar. The medical treatment records found the scar to be painful at times but did not discuss the scar being unstable or covering a total area greater than 39 square centimeters. In the most recent VA treatment records, the scar is specifically described as well-healed. The VA examiners all concluded that the left wrist scar was not unstable. The examiners noted that the area of the scar was hypersensitive, while some examiners also found it to be painful. Yet, no medical treatment record or VA examination found the scar to be unstable. Additionally, while the Veteran has contended that it is both painful and unstable, neither the medical records in the file nor the VA examiners have found the scar to be unstable. As such, the 10 percent rating currently assigned under Diagnostic Code 7804 is appropriate for one painful scar. The most recent VA examination found that the scar did not impact his ability to work, and the probative evidence does not indicate any disabling effects not considered, or functional impairment. As such, a separate rating is not warranted based on any other provision of the rating schedule, to include Diagnostic Code 7805, at any time during the period of appeal. Finally, the Veteran's scar was not found to have any underlying soft tissue damage and at no point was it measured to cover a total area of 39 square centimeters or more. Therefore, the Veteran is not rated under Diagnostic Code 7801 or 7802. The Veteran's 10 percent rating under Diagnostic Code 7804 is confirmed and continued. The Board has also considered whether the Veteran's scar on the left dorsal wrist presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that an extraschedular rating is warranted, the threshold factor for extraschedular consideration. See 38 C.F.R. § 3.321 (b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("rating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). In the instant case, the Veteran has intermittent blistering and swelling of the left hand and wrist, as well as reports of the scar becoming itchy. However, this does not present an exceptional or unusual disability picture. The record also does not show any evidence that the Veteran has had frequent hospitalization due to the issues with the left wrist scar, nor is the left wrist scar found to have a marked interference on employment. Rather, the VA examinations and VA treatment records consistently show that the Veteran's other service-connected left wrist disabilities cause functional impairment rather than the scar of the left wrist. Therefore, the assigned schedular evaluation is adequate. The Board finds that the rating criteria reasonably describe the Veteran's disability. For these reasons, referral for consideration of an extraschedular rating is not warranted for this claim. In conclusion, the Board finds that the preponderance of the evidence is against the claim for a disability rating in excess of 10 percent for the Veteran's left wrist 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. The claim is denied. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.L. Aumiller, 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.