Citation Nr: 22016368 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 16-54 496 DATE: March 22, 2022 ORDER Prior to November 17, 2021, entitlement to an increased evaluation of 10 percent, but no higher, for a left posterior lateral mid-trunk circular scar is granted. Since November 17, 2021, entitlement to an evaluation in excess of 10 percent for a left posterior lateral mid-trunk circular scar is denied FINDING OF FACT Throughout the period on appeal, the Veteran's left posterior lateral mid-trunk circular scar has been painful, but stable. CONCLUSIONS OF LAW 1. Prior to November 17, 2021, the criteria for an increased rating of 10 percent, but no higher, for a left posterior lateral mid-trunk circular scar have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Codes 7802, 7804. 2. Since November 17, 2021, the criteria for an evaluation in excess of 10 percent for a left posterior lateral mid-trunk circular scar have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Codes 7802, 7804. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Navy from December 1974 to January 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision by an agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA), continuing a noncompensable rating for left posterior lateral mid-trunk circular scar. In January 2019, the Board remanded the issue to obtain updated medical records and a new VA new examination to determine the current nature and severity of the Veteran's service-connected circular skin scar left posterior lateral mid trunk (previously diagnosed as s/p stab wound to left posterior axillary line (chest)). In July 2021, the Board again remanded the issue due to missing medical records and for a new VA examination, as examinations in December 2019 and June 2020 were determined to be inadequate for adjudication. In August 2021, VA asked the Veteran to provide a release to allow VA to request records from additional/outstanding private treatment records, or to provide the records himself. To date, no response has been received. Substantial compliance with the Board's prior remand orders is demonstrated. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). In December 2021, while this remand was pending, the AOJ issued a rating decision changing the applied diagnostic codes and criteria. Since 1995, the left chest scar was rated 0 percent disabling under Code 7805, which directed that a scar be rated based on the "limitation of function of [the] part affected." 38 C.F.R. § 4.118 (1995). Effective October 23, 2008, the criteria Code were changed to direct that scars should first be rated under Codes 7800 (head, face, or neck), 7801 (other body parts with underlying soft tissue damage), 7802 (other body parts without underlying soft tissue damage), or 7804 (unstable and/or painful), and then any other effects should be rated under an appropriate Code. These provisions have been substantively unchanged by amendments in 2012 and 2018. 38 C.F.R. § 4.118 (2009). The AOJ changed the applied Code to 7802, for a scar of the body (not of the head, face, or neck) and continued the noncompensable evaluation, as a compensable rating was only assignable for affected areas of 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118. The AOJ also assigned a separate, 10 percent rated under Code 7804, for a scar that is unstable and/or painful, effective November 17, 2021. Rating under these Diagnostic Codes simultaneously is expressly permitted by the current rating schedule. 38 C.F.R. § 4.118. The Board will consider both Codes 7802 and 7804 herein. With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. The Veteran has not advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Increased Rating Disability evaluations 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. 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). 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. 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). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). As is discussed above, the scar is currently rated under Codes 7802 and 7804. No compensable rating is warranted under Code 7802, as the scar measures only 1.5 x 1.5 cm, or 2.25 sq. cm., well below 969 sq. cm. For Code 7804, based on stability and pain of the scar, 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. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Since November 17, 2021, the Veteran's scar has been evaluated under Diagnostic Code 7804, for unstable or painful scars. The Veteran has no more than one scar. In August 2013, the Veteran submitted a Statement in Support of Claim. The Veteran stated his scar hurts when he moves and does not hurt when he is resting. In December 2013, the Veteran was afforded a VA scar examination. While the Veteran reported that the scar was "not painful per se...Veteran can feel some pain inside the deep tissue of the scar area," the examiner noted that the scar was neither painful nor unstable. The examiner reported the scar measured 1 centimeter (cm) by 1 cm. A chest x-ray to assess the Veteran's complaints of deep tissue pain sensation intermittent in character at his left posterior lateral mid trunk was taken, but did not indicate any underlying damage. In his August 2014 Notice of Disagreement (NOD), the Veteran contended that pain caused by his stab wound occurs when he has a sudden, unusual twist in his body. He indicated that the pain was worse when he twists in his sleep, resulting in back pain. The Veteran stated he took over the counter (OTC) medications to relieve his pain. The Veteran's VA medical records contain complaints and treatment of the Veteran's left back pain. In December 2019, the Veteran was afforded another VA scar examination. The examiner stated the Veteran "was staffed (sic) on the left side of his cheeks (sic) in the posterior" and "does not have recurrent pain on the scar." On examination, the Veteran exhibited a posterior left lateral axilla scar measuring 1.5 centimeters in diameter and no "scars of the trunk or extremities" which were painful or unstable. The AOJ determined that the December 2019 examination report was insufficient for rating purposes as it did not indicate whether the posterior trunk scar was tender to palpation and requested an addendum to the report. A June 2020 addendum to the December 2019 VA examination report stated that the examiner who conducted the December 2019 examination was unavailable. A reviewing VA physician provided speculative language regarding whether or not the Veteran's scar was painful. Both exams are inadequate for adjudication and haven no probative value. In November 2021, the Veteran was afforded a new VA scar examination. Upon examination, the examiner found the scar was 1.5 cm by 1.5 cm and tender to palpation. Throughout the period on appeal, the Veteran's statements regarding the pain from his scar have remained consistent. The Veteran is competent to report that the sensation of pain that he feels at the site of his scar. Additionally, VA treatment records show that the Veteran has complained of pain in the area of his scar since at least December 2013. Additionally, VA examiners in December 2013 and November 2021 noted the Veteran experienced pain in relation to his scar. After careful review of the evidence of record, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's competent and credible statements are sufficient to establish that his left posterior lateral mid-trunk circular scar is painful. Under Code 7804, an assignment of a 10 percent rating, but no higher, for the single scar of the back is warranted throughout the appeal period. There are consistent complaints of pain at the scar site before and after November 17, 2021, and the compensable rating is warranted for both stages. Because the Veteran has no more than one scar and the scar is stable, a higher rating of 20 percent under Code 7804 is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; the weight of the evidence is persuasively against the Veteran's claim, and the doctrine is not applicable. 38 U.S.C. § 5107(b). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lauren Barletta 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.