Citation Nr: 22011933 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 16-31 071 DATE: March 2, 2022 ORDER Entitlement to an initial compensable rating for surgical scar from a status post left salpingo-oophorectomy associated with left salpingo oophorectomy ("status post left salpingo-oophorectomy scar ") is denied. FINDING OF FACT For the entire period on appeal, the Veteran's status post left salpingo-oophorectomy scar has not resulted in one painful scar. CONCLUSION OF LAW The criteria for an initial compensable rating for service-connected status post left salpingo-oophorectomy scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Codes 7804, 7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from February 2002 to February 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran was scheduled for a March 2019 hearing. However, the Veteran failed to appear for her scheduled hearing and did not present a good cause for her absence. Based on the foregoing, the Board finds that the request for a hearing is deemed withdrawn. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. The Veteran's service-connected status post left salpingo-oophorectomy scar disability has been evaluated under Diagnostic Code 7805. During the pendency of the appeal, the applicable rating criteria for scars were amended, effective August 13, 2018. VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the Veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. The Board notes that the skin regulations were amended effective August 13, 2018. However, these changes did not substantively alter the content of the diagnostic codes applicable to this claim. Diagnostic Code 7804 provides a 10 percent rating for one or two unstable or painful scars. A 20 percent rating is warranted for three or four unstable or painful scars. A 30 percent rating is warranted for five or more unstable or painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7804. Diagnostic Code 7805 provides that scars (including linear scars) not otherwise rated under Diagnostic Codes 7800-7804 are to be rated based on any disabling effects not provided for by those codes. In addition, the effects of scars otherwise rated under Diagnostic Codes 7800-7804 are to be considered. 38 C.F.R. § 4.118, Diagnostic Code 7805. 1. Entitlement to an initial compensable rating for status post left salpingo-oophorectomy scar is denied. The Veteran filed a claim for entitlement to service connection for status post left salpingo-oophorectomy scar in November 2014. In a February 2015 rating decision, the RO granted service connection for status post left salpingo-oophorectomy scar with a noncompensable rating effective November 18, 2014. The Board finds that the Veteran's status post left salpingo-oophorectomy scar is consistent with a noncompensable rating. By way of background, in the April 2007 VA examination, the examiner noted that her horizontal scar was about 3.5 inches and at the widest point was 0.5 or 0.75 inches wide. See April 2007 VA Examination. A review of the records shows that the Veteran was afforded a VA examination in January 2015 wherein the examiner noted that the Veteran denied having painful and/or unstable scars. On examination, she had a 10 centimeter (cm) linear scar on the anterior trunk. There were no deep or superficial non-linear scars. The examiner determined that her scars did not cause a functional impact. The findings from the January 2015 VA examination are consistent with the records. The Board notes that despite the extensive medical records associated with the file the records show that the Veteran never complained of scar-related pain or frequent loss of covering of the skin. She complained of hearing loss, skin disability, depression, restless leg syndrome, and other impairments. However, she did not complain of a scar-related pain. For instance, in a May 2015 VA treatment record she complained of IUD complications, painful intercourse, and abdominal cramping but did not complain of any pain related to her scar. See July 2018 CAPRI. In a May 2017 VA treatment record it was noted that she has a four-inch linear scar on the left lower abdomen from status post removal of the left ovary and fallopian tube. See July 2018 CAPRI. No complaint or report regarding pain was noted. Even when in June 2021 she presented problems of fibroid uterus and IUD removal she did not complain of scar related pain. See January 2022 CAPRI. Based on a review of the pertinent evidence, the Board concludes that, for the entire appeal period, the Veteran's scar was not of a size to warrant a compensable rating and did not result in functional impairment or other disabling effects nor did she have a painful or unstable scar. As noted above, the Veteran's scar is currently rated as noncompensable under Diagnostic Code 7805, which provides that other scars (including linear scars), not otherwise rated under Diagnostic Codes 7800-7804 and including the effects of such scars otherwise rated under those codes, are also to be rated based on any disabling effects not provided for by Diagnostic Codes 7800-7804. 38 C.F.R. § 4.118, Diagnostic Code 7805. This includes, where applicable, diagnostic codes pertaining to limitation of function. However, the VA examination of record does not reflect that the Veteran's scar results in any limitation of motion or loss of function. As the evidence throughout the appeal period does not show any disabling effects due to the scar itself, compensable ratings are not warranted under Diagnostic Code 7805. The Board has also considered the applicability of other potentially applicable diagnostic criteria for rating the Veteran's scar but finds that no higher rating is assignable under any other diagnostic code. To that end, Diagnostic Code 7800 contemplates scars of the head, face, or neck. 38 C.F.R. § 4.118, Diagnostic Code 7800. As her scar is located on the anterior trunk, a compensable rating is not warranted under Diagnostic Code 7800. Diagnostic Code 7801 provides that burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) will be assigned a 10 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7801. As documented in the above-noted VA examination report, there is no evidence that her scar covers an area of at least 6 square inches, or that it is deep and nonlinear. Thus, Diagnostic Code 7801 is also inapplicable. Diagnostic Code 7802 pertains to burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater will be assigned a 10 percent rating. Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802. In this case, her scar does not cover a surface area of 144 square inches or greater. Her scar is about four inches and there is no indication that her scar covers a surface area of 144 square inches. Therefore, a compensable rating is not available under Diagnostic Code 7802. Diagnostic Code 7804 pertains to unstable or painful scars. One or two scars that are unstable or painful are rated at 10 percent disabling. Note (1) to Diagnostic Code 7804 provides that 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. In this regard, she stated that her scar is "sometimes painful, with continued numbness around the scar edges." See November 2014 VA 21-4138 Statement in Support of Claim. She claimed that her scar is adhered to underlying tissue on her stomach approximately 1.5 cm which creates a very significant 'shelf' of skin and is physically disfiguring. See March 2015 NOD. The Board acknowledges the case of Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), wherein the Court held that the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. In this case, however, the Board finds that despite the extensive medical records associated with the file there is no note of having any symptoms of scar related pain despite having several opportunities to endorse such pain especially when she had her gynecologist consultation. Had she been experiencing ongoing problems related to her scar-related pain the Board finds it reasonable to conclude that the Veteran would have reported these problems when she complained of IUD complications, painful intercourse, and abdominal cramping. See July 2018 CAPRI. Moreover, the records show that she complained of various impairments such as hearing loss, skin disability, depression, restless leg syndrome, and other impairments but never once endorsed having scar-related pain. Even when in June 2021 she presented problems of fibroid uterus and IUD removal she did not complain of scar related pain. See January 2022 CAPRI. Despite numerous opportunities to seek treatment for scar-related pain or at the least complain about her scar-related pain she did not do so. It stands to reason that if the Veteran had scar-related pain such would have been noted during one of her evaluations since 2013. Based on the foregoing, the Board is unable to credit the Veteran's statement that she has scar-related pain. See Caluza v. Brown, 7 Vet. App. 498 (1995) (holding that in weighing an applicant's credibility, the Board may consider any evidence of interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, and desire for monetary gain); see also Pond v. West, 12 Vet. App. 341 (1999) (noting that although Board must take into consideration a veteran's statements, it may consider whether self-interest may be a factor in making such statements). Therefore, based on the foregoing, the Board finds that the Veteran is not entitled to a compensable rating for her service-connected scar. As detailed above, there is no evidence that the Veteran's scar is deep or nonlinear, unstable or painful, or that the affected area is greater than 144 square inches. Further, the evidence of record does not show that the Veteran's service-connected disability is not manifested by any functional impairments. In sum, a compensable rating is not warranted for the Veteran's service-connected scar. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the evidence is against the Veteran's claim of entitlement to an increased rating. 38 U.S.C. § 5107. CHRISTOPHER SEPPANEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Noh, 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.