Citation Nr: 22018159 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 20-19 301 DATE: March 28, 2022 ORDER Entitlement to an increased rating in excess of 10 percent for a right wrist scar is denied. REMANDED Entitlement to an increased rating in excess of 10 percent for a right wrist disability is remanded. FINDING OF FACT The Veteran has one linear, painful but not unstable scar of the right wrist, measuring at most 3 square centimeters. CONCLUSION OF LAW The criteria for entitlement to an increased rating in excess of 10 percent for a right wrist scar have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.118, Diagnostic Code 7800 - 7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1996 to November 1999. This case comes on appeal of a November 2018 rating decision. The Veteran testified at a virtual tele-hearing before the Board in July 2021. A transcript of that hearing is of record. This case was previously before the Board in December 2021. At that time, the Board observed that the single issue of entitlement to a compensable rating for a right wrist scar had, in fact, also involved the Veteran's contention that she was entitled to a higher rating for the underlying right wrist disability. Although the agency of original jurisdiction (AOJ) had developed the Veteran's appeal related to her scar, it had not developed the appeal related to the underlying disability. The Veteran had also claimed that her right wrist scar had worsened since her most recent examination. Therefore, the Board remanded the issue of the right wrist scar for an updated examination. The Board simultaneously remanded the issue of the underlying right wrist disability to instruct the AOJ to issue a statement of the case. The Board will discuss this further below. Following the Board's remand, the Veteran was afforded new examinations. Then, in January 2022, the AOJ issued a rating decision in which it granted entitlement to a rating of 10 percent for the right wrist scar, and a separate rating of 10 percent for the underlying wrist disability, effective the date of the Veteran's claim. However, the Veteran is presumed to seek the maximum benefit available and this represents only a partial grant of benefits sought. AB v. Brown, 6 Vet. App. 35, 38 (1993). Entitlement to an increased rating in excess of 10 percent for a right wrist scar As addressed above, the Veteran filed the claim of entitlement to a compensable rating for a right wrist scar in May 2018. In its January 2022 rating decision, the AOJ granted entitlement to a rating of 10 percent, effective the date of the claim. At issue, then, is whether entitlement to a rating in excess of 10 percent is warranted for the right wrist scar. The Board must also consider whether it is factually ascertainable during the one-year period prior to the claim that the scar warranted a compensable rating. Disability evaluations are determined by the application of the facts presented to the 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. § 4.1. 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. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. (1999); Hart v. Mansfield, 21 Vet. App. (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. Generally, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Scars are rated under Diagnostic Codes 7800 7805 within 38 C.F.R. § 4.118. Pursuant to the rating schedule, Diagnostic Code 7800 rates scars of the head, face, and neck. Diagnostic Code 7801 rates scars not of the head, face, or neck, that are deep and nonlinear (under former criteria, prior to August 13, 2018), or are associated with underlying soft tissue damage (under current criteria). Diagnostic Code 7802 rates scars not of the head, face, or neck, that are superficial and nonlinear (under former criteria, prior to August 13, 2018), or that are not associated with underlying soft tissue damage (under current criteria). Diagnostic Code 7804 rates scars that are unstable or painful. Diagnostic Code 7805 rates scars that are not covered under any of the previous Diagnostic Codes, with the instruction to evaluate any other disabling effects under an appropriate Diagnostic Code. Essentially this means that scars are evaluated based on their location, their depth, their linear or nonlinear qualities, their stability, and their pain, as well as any other effects they may cause. In a July 2018 wrist conditions examination, the examiner recorded observation of a vertical scar at the radial aspect of the right wrist, measuring 4 centimeters by .5 centimeters. When asked for an addendum to address whether the scar was painful, the examiner reported that it was not. The Veteran, however, has testified that she has experienced pain from the scar throughout the period on appeal. In January 2022, the Veteran underwent a more comprehensive scar examination. There, the examiner noted current symptoms of constant pain, itching, and burning in the right wrist, with associated symptoms of numbness and tingling with the scar. The Veteran also experienced weakness in the right wrist. The examiner observed that there was one painful, linear scar, measuring 3 centimeters by 1 centimeter. It was not unstable, nor was there frequent loss of the covering of skin. The scar was not due to burns. The right wrist scar was tender to palpation and had underlying soft tissue damage. It also resulted in limitation of motion. There is no other relevant evidence specifically related to the right wrist scar during the period on appeal. Here, noting that the Veteran's right wrist scar is not of the head or neck, Diagnostic Code 7800 does not apply. As the scar is associated with underlying soft tissue damage, Diagnostic Code 7801 may apply and Diagnostic Code 7802 does not apply. As the scar is painful, Diagnostic Code 7804 may apply. As there are disabling effects not evaluated under the other Diagnostic Codes, namely painful motion or limitation of motion, Diagnostic Code 7805 may apply. Under Diagnostic Code 7801, a 10 percent rating is warranted for a scar or scars covering an area or areas of at least 39 square centimeters, but less than 77 square centimeters. A 20 percent rating is warranted for a scar or scars covering an area or areas of at least 77 square centimeters but less than 465 square centimeters. A 30 percent rating is warranted for a scar or scars covering an area or areas of at least 465 square centimeters but less than 929 square centimeters. A 40 percent rating is warranted for a scar or scars covering an area or areas of 929 square centimeters or greater. Given that the Veteran's right wrist scar, at its largest measurement, is 3 square centimeters, a compensable rating under Diagnostic Code 7801 is not warranted. 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. A 30 percent rating is warranted for five or more scars that are unstable or painful. The Notes to Diagnostic Code 7804 instruct that 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, the rater is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Additionally, scars that are evaluated under the other scar Diagnostic Codes may also receive an evaluation under Diagnostic Code 7804, when applicable. Here, the Veteran has one painful scar that is not unstable. Therefore, under Diagnostic Code 7804, a rating of 10 percent, but no higher, is warranted. As will be further discussed in the remand portion below, the Veteran has been assigned a 10 percent rating for painful motion and limitation of motion of the right wrist. That portion of the disability's symptoms remain on appeal, however, they have been addressed appropriately in accordance with the rating schedule. Therefore, additional rating under Diagnostic Code 7805 is not warranted at this time. The Board has also considered that changes were made to 38 C.F.R. § 4.118 in August 2018, during the pendency of this claim. As such, for the period prior to August 2018, the Board must only consider the previous iteration of the regulation. For the period following the change in regulation, the Board must consider the version of the regulation most favorable to the Veteran. Here, prior to August 2018, Diagnostic Codes 7800 still applied only to scars of the head, face, and neck. Both Diagnostic Code 7801 and Diagnostic Code 7802 applied only to deep, nonlinear scars. Thus, neither of these codes would apply to the Veteran's scar. Diagnostic Codes 7804 and 7805 remained unchanged. Therefore, the evaluation of the Veteran's scar is the same under either version of the regulation. Accordingly, the evidence persuasively favors a finding that the Veteran's right wrist scar does not meet the criteria for a rating in excess of 10 percent throughout the period on appeal. Additionally, the Board notes that there is no evidence during the one-year period prior to the Veteran's May 2018 claim demonstrating that it was factually ascertainable that a compensable rating for the right wrist scar was warranted at that time. Therefore, there is no basis for a compensable rating prior to the date of the claim. REASONS FOR REMAND Entitlement to an increased rating in excess of 10 percent for a right wrist disability is remanded. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, in its December 2021 decision, the Board noted that the Veteran had submitted a timely notice of disagreement (NOD) regarding the issue of an increased rating for a right wrist disability, but had not been issued a statement of the case (SOC) on that matter. Therefore, the Board instructed the AOJ to issue the Veteran an SOC. Instead, concurrent with the January 2022 rating decision in which it granted entitlement to a 10 percent rating for a right wrist disability, the AOJ issued a supplemental statement of the case (SSOC) denying entitlement to a rating in excess of 10 percent for a right wrist disability. The AOJ then returned the issue to the Board. This action does not comply with the Board's remand instructions. Notably, the issuance of an SOC typically provides the Veteran with information on how to substantively appeal the denied issues to the Board, to include an explanation of the Veteran's rights to a Board hearing. In contrast, the issuance of an SSOC only includes a notice of 30 days to provide additional evidence. Importantly, the Veteran has not had the opportunity to provide hearing testimony regarding her right wrist disability. Therefore, the failure to issue an SOC, as instructed in the December 2021 remand, resulted in a due process deficiency, since the Veteran was not fully informed of her hearing rights. Accordingly, on remand, the AOJ should issue an SOC on the matter of an increased rating for a right wrist disability. (Continued on Next Page) The matters are REMANDED for the following action: Furnish the Veteran with a statement of the case pertaining to the issue of entitlement to an increased rating for her right wrist disability, other than scar. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Giaquinto, 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.