Citation Nr: 22016173 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 08-20 227 DATE: March 21, 2022 ORDER Entitlement to a compensable rating for residuals of cellulitis, other than scars, is denied. FINDING OF FACT For the entire period on appeal, the Veteran's residuals of cellulitis have been manifested by three scars on the bilateral lower legs that did not affect the underlying soft tissue, were not painful or unstable; had an area less than 144 square inches (929 square centimeters); and did not result in limitation of motion or other disabling effect. CONCLUSION OF LAW The criteria for a compensable rating for residuals of cellulitis, other than scars, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Codes 7800- 7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Marine Corps from April 1975 to March 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision from a Department of Veterans Affairs (VA) Regional Office, where a noncompensable rating for service-connected residuals of cellulitis, then characterized solely as scars, was confirmed and continued. In May 2017, the Veteran testified at a videoconference before a Veterans Law Judge who is no longer employed by the Board, and a transcript of the hearing has been associated with the claim file. By correspondence dated in November 2021, the Veteran was offered the opportunity to testify at another hearing; however, he did not respond within 30 days. Therefore, the Board will continue review of the appeal. The Board remanded these matters to the agency of original jurisdiction (AOJ) for further development in January 2011, September 2017, March 2019, and August 2020. During the pendency of the appeal, a March 2014 rating decision by the AOJ granted service connection for painful scars of the lower extremities, as residuals of cellulitis, assigning a 20 percent rating under Diagnostic Code 7804 from February 27, 2007, and continued to deny the Veteran's current claim for a compensable rating for residuals of cellulitis, other than scars. Pursuant to the August 2021 remand, the Veteran underwent a May 2021 VA contract examination, and the AOJ issued an October 2021 Supplemental Statement of the Case and returned the matter to the Board for further appellate consideration. The Board finds there has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Now the matters before the Board. The Veteran seeks a compensable disability rating for residuals of cellulitis, other than scars, which is currently evaluated under Diagnostic Code 7802. See 38 C.F.R. § 4.71a, Diagnostic Codes 7802. Governing Laws and Regulations Increased Disability Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4 . The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, it will assign the lower rating. Id. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In every instance where the schedule does not provide a 0 percent rating for a diagnostic code, a 0 percent rating will be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). The Board will also consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, it is essential that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Rating Criteria for Skin Disabilities The diagnostic criteria for disorders of the skin are found at 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. The Board notes that VA amended the criteria for rating skin disabilities during the claim period, effective from August 13, 2018. With regard to the effective date of the new criteria, VA indicated in the Supplementary Information to the Final Rule that its "intent is that the 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 Veteran's claim in this case was pending prior to the August 13, 2018 effective date of the new criteria, and therefore, the Board will consider both the old and new criteria and apply the more favorable criteria. Prior to August 13, 2018 DC 7800 provides for burn scars of the head, face or neck, scars of the head, face or neck due to other causes, or other disfigurement of the head, face, or neck. See 38 C.F.R. § 4.118, DC 7800. Under DC 7801 a 10 percent rating is assigned for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear with an area or areas of at least 6 square inches (39 sq. cm) but less than 12 square inches (77 sq. cm). See 38 C.F.R. § 4.118 , DC 7801 Under DC 7802 a 10 percent rating is assigned for scars not of the head, face or neck, which are superficial and nonlinear and cover an area of 144 square inches or greater. See 38 C.F.R. § 4.118, DC 7802. Under DC 7804, one or two scars that are unstable or painful warrant a 10 percent rating. A 20 percent rating requires three or four scars that are unstable or painful. A 30 percent rating requires 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. 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. Scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an additional rating under DC 7804, when applicable. See 38 C.F.R. § 4.118, DC 7804. Under DC 7805, any disabling effects of other scars (including linear scars), and other effects of scars rated under DCs 7800, 7801, 7802, and 7804 not considered in a rating provided under DCs 7800-7804 are to be rated under an appropriate DC. See 38 C.F.R. § 4.118, DC 7805. Since August 13, 2018 DC 7800 remained the same. DC 7801 was amended to remove "deep and nonlinear scars" which was replaced with "underlying soft tissue damage." DC 7802 was amended to remove "superficial and nonlinear" and was replaced with "not associated with underlying soft tissue damage." Note (1) now provides that for purposes of DCs 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Note (2) changed to a separate evaluation may be assigned for each affected zone of the body. Combine the separate evaluations under § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. DCs 7804 and 7805 were unaffected by the revisions. Facts and Analysis The Veteran contends he is entitled to a compensable rating for residuals of cellulitis and testified that when the scars on his legs were "fresh, the first 10, 20 years, there was muscle loss" and his legs caused discomfort and embarrassment at the beach or pool. See May 2017 Board Hearing Transcript, at 37. He also asserts that he feels pressure and muscles tightness under the scar tissue on his legs from the cellulitis and has muscle cramps. Id., at 38-39. In this case, VA obtained several examinations. The Board finds the examination reports, when considered together, to be thorough and complete and sufficient upon which to base a decision with regard to this claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). These examinations, along with the remaining evidence of record, contain sufficient findings to rate the Veteran's service-connected disabilities under the appropriate diagnostic criteria. During a January 2020 VA contract muscle examination, reporting bilateral leg tingling, itching, tightness, and cramping related to removal of cellulitis. The examiner reviewed the evidentiary record, noting the Veteran complained of leg cramps and was treated for Achilles tendonitis in August 2018. See August 27, 2018 Wilkes-Barre VA Medical Center treatment record. Upon examination, the January 2020 examiner determined the Veteran had a non-penetrating muscle injury to the lower left leg that was not associated to any scar. See January 30, 2020 VA muscle contract examination, at 6. There were also not any fascial defects associated with a muscle injury. Id. The Veteran's muscle substance and function were not affected by a muscle injury, and there was no muscle atrophy attributed to the injured muscle group. Id, at 7-8. In January 2020 and June 2021, the Veteran underwent VA contracted scar examinations. The examiners reviewed the evidentiary record and conducted in-person examinations, noting the Veteran had three scars on the legs. The total area for both scars on the right lower leg was approximately 49.5 cm2 . The total area of the scar on the left lower leg was 6.75 cm2. No scars were painful, unstable, or tender to palpitation. Also, both examiners determined none of the scars had underlying soft tissue damage. The January 2020 examiner noted the Veteran's concern that the scars caused him to become uncomfortable and embarrassed in public if anyone saw his lower legs, while the May 2021 examiner indicated that the scars did not result in a functional limitation. The May 2021 scar examiner also conducted a May 2021 skin examination, noting the Veteran's cellulitis was last active in 2015, and that he had not been treated with medication for any skin condition in the past twelve months. See May 2021 Skin VA contract examination, at 3. Upon examination, the Veteran did not have any characteristic lesions, but residual scarring from cellulitis was noted. Id., at 11. Moreover, in a May 2021 VA contracted medical opinion, the examiner revealed an inability to find medical literature to support a connection between the Veteran's symptoms and cellulitis residual. Therefore, the examiner opined that it was less likely than not that any muscle cramping, leg tightness, or other muscular symptoms are residuals of the Veteran's service-connected cellulitis. Based on the evidence of record, the Board finds that a compensable rating under Diagnostic Code 7802 is not warranted. The Veteran had three scars on his lower legs, and none were painful or unstable with an area of or areas of 144 square inches (929 square centimeters). The Board notes that the Veteran is competent to report tightness, pressure, itching, and cramping in his legs, and he is credible in his claim that the appearance causes him discomfort and embarrassment. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, to the extent that the Veteran asserts these symptoms are a residual of his service connected cellulitis, he is not competent to render an opinion on the cause or etiology because he does not have the requisite medical knowledge or training, and the matter is beyond the ability of a lay person to observe. The Board has considered whether a compensable rating would be warranted under Diagnostic Codes 7800, 7801, or 7804. However, a rating under 7800 is not warranted as the Veteran does not have a scar of the head, face, or neck. A rating under 7801 is not warranted as the Veteran does not have a scar or scars that are deep and/or associated with the underlying soft tissue. A rating under 7804 is not warranted as the Veteran was previously assigned a separate rating of 20 percent for three lower leg scars that were either unstable or painful. 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7801, 7804. Additionally, the record demonstrates that there is no additional limitation of motion or disabling effect due to the Veteran's lower leg scars. The medical evidence reveals no other findings, signs or symptoms, complications or conditions that are the result of the scars. Accordingly, a compensable disability rating is not warranted under Diagnostic Code 7805. Based on the above, the Board concludes that the preponderance of the evidence is against the claim for a compensable skin evaluation. As such, the benefit of the doubt doctrine does not apply. See Gilbert, 1 Vet. App. at 55-56; 38 U.S.C. § 5107. The claim for entitlement to a compensable rating for residuals of cellulitis, other than scars is denied. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Gipson, 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.