Citation Nr: 22019201 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 14-15 094 DATE: March 31, 2022 ORDER Entitlement to an evaluation of 10 percent, but no higher, for the residuals of multiple scar fragment wounds of the abdomen is granted. FINDING OF FACT The evidence shows that the Veteran has an abdomen scar that is painful, but not unstable. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, the criteria for an increased disability rating of 10 percent, but no higher for the residuals of multiple scar fragment wounds of the abdomen are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.118, Diagnostic Codes 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1968 to August 1970. The Veteran was awarded a Purple Heart Medal among his many awards and decorations. This claim comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA). The claim was remanded in a January 2018 Board decision for the RO to obtain a VA examination as the Veteran challenged the adequacy of a March 2013 examination. Following remand, in a January 2020 decision, the Board denied the claims. Subsequently, the Veteran appealed the decision to the United States Court of Veterans Appeals (Court). In a January 2021 Joint Motion for Remand (Joint Motion), the parties agreed that the Board failed to ensure substantial compliance with the January 2018 remand directives. While the AOJ had obtained a new VA examination in April 2018, the parties found the examiner did not follow the remand directives. Moreover, they agreed the Board failed to provide an adequate statement of reasons or bases in its decision as it did not adequately explain how it can find the Veteran competent and credible to report his observable symptoms of pain in his scar, yet find he is not entitled to compensable ratings for painful scar under 7804. The claim was remanded in a June 2021 Board decision for the RO to obtain a VA medical opinion and provide an explanation and opinion for the Veteran's assertion that he experiences constant problems and painful scarring in his abdomen area. The Veteran's claim was last adjudicated in an October 2021 supplemental statement of the case (SSOC). The Veteran continues to assert the claim of entitlement to a compensable evaluation for the residuals of an abdominal scar. Increased Ratings 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. § 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board acknowledges that the Veteran's abdominal scar has been rated under Diagnostic Code 7805 during the entirety of the period on appeal to reflect the Veteran's symptoms more accurately. See Read v. Shinseki, 651 F.3d 1296 (Fed. Cir. 2011) (It is permissible to switch Diagnostic Codes to reflect more accurately a claimant's current symptoms); Murray v. Shinseki, 24 Vet. App. 420 (2011) (It is impermissible to reduce disability compensation during the course of an increased rating claim). The Board is evaluating the Veteran's claim to solely determine if an increased evaluation is warranted. Entitlement to a compensable evaluation for the residuals of multiple fragment wounds of the abdomen As indicated in an April 2014 VA Form 9, the Veteran is seeking a compensable evaluation for his abdomen scar. The Veteran's abdomen scar is rated under Diagnostic Code 7805 for other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7805 was not changed by the August 13, 2018, amendments. Diagnostic Code 7805 instructs that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate Diagnostic Code. Prior to August 13, 2018, Diagnostic Code 7801, was for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear. Under these criteria, a scar with an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrants a 10 percent rating. A scar with an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) warrants a 20 percent rating. A scar with an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) warrants a 30 percent rating. A scar with an area or areas of 144 square inches (929 sq. cm.) or greater warrants a 40 percent rating. 38 C.F.R. § 4.118. Prior to August 13, 2018, Note 1 to Diagnostic Code 7801 instructed that a deep scar is one associated with underlying soft tissue damage. Id. Since August 13, 2018, Diagnostic Code 7801 is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic code 7801 was otherwise unchanged by the August 13, 2018, amendments. Prior to August 13, 2018, DC 7802 provided rating criteria for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear. 38 C.F.R. § 4.118, DC 7802 (2017). The amended version is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802 (August 13, 2018). Both versions state that a 10 percent disability rating is warranted when the area of the scar covers 144 square inches (929 square centimeters) or greater. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7804 was not changed by the August 13, 2018, amendments. Under Diagnostic Code 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating. Three or four scars that are unstable or painful scars warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. In February 2012, the Veteran was afforded a VA muscle injury examination. The examiner noted the Veteran's fragment wounds on the left side of his abdomen. The examiner noted that the Veteran's scars associated with the muscle injury are minimal and do not affect muscle substance or function, muscle strength testing was normal, no x-ray evidence of retained metallic fragments (such as shell fragments or shrapnel) in any muscle group was noted. The examiner further noted that the Veteran's muscle injuries do not impact his ability to work, such as resulting in an inability to keep up with work requirements due to muscle injuries. In March 2013, the Veteran was afforded a VA scar examination to determine the severity of his scars. The March 2013 examiner found no visible scars noted upon examination that day. The examiner did not diagnose the Veteran's abdomen scar as being painful or unstable. The examiner also noted that there are no functional or occupational limitations associated with the residuals of the Veteran's abdominal scarring. The examiner also noted that the Veteran did not experience any problems with his abdomen scar. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The March 2013 opinion diagnosed no visible abdomen scar and noted no problems or pain associated with the Veteran's abdomen scar. However, such conclusions were based, at least in part, on an inaccurate factual premise. The Veteran reports that during the examination, he reported experiencing constant pain in his abdomen due to his scar. This reporting of constant abdominal scar pain was not addressed by the examiner. Therefore, the Board assigns the March 2013 medical opinion no probative weight as to the presence of scars. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In an April 2018 VA scar examination, the examiner noted the Veteran's scar on his anterior trunk and indicated that the scar is well-healed. The examiner noted that the Veteran's scar is not painful or unstable, with frequent loss of covering of skin over the scar. The Veteran's abdomen scar was noted as superficial non-linear 0.1 cm in length and 0.1 cm. in width. The examiner indicated that the Veteran's scar did not result in limitation of function. Further, that the Veteran did not have any other pertinent physical findings, complications, signs and/or symptoms associated with any scar. In the remarks section, the examiner included a note addressing the Veteran's lay assertions that he experiences radiating pain and constant problems with the area of the wound on his abdomen. No particular rationale or opinion was provided concerning these assertions. However, the Board notes that the examiner marked that the Veteran's scar of the trunk and extremities was not reported to be painful or unstable. Regarding functional and occupational limitations, the examiner noted that the Veteran's abdomen scar does not impact his ability to work. The April 2018 examiner noted that the Veteran reported that his abdomen scar were not painful. However, such conclusions were based, at least in part, on an inaccurate factual premise. The Veteran reports that during the examination, he reported experiencing constant pain in his abdomen due to his scar. The examiner's marking on the examination that the Veteran did not experience scar pain is inaccurate when compared with the Veteran's statements in the record. Moreover, the examiner did not provide a reason for why he did not consider the Veteran's reporting of chronic residual scar pain in his abdomen, nor did he offer an explanation to refute the Veteran's reporting of chronic residual scar pain in his abdomen. Therefore, the Board assigns the April 2018 medical opinion low probative weight as to whether the scar was painful. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In an October 2021 VA scar examination, the examiner diagnosed the Veteran with the residuals of an abdomen scar due to multiple fragment wounds. The examiner noted that the Veteran's current symptoms were asymptomatic. The examiner noted in the negative for scars of the trunk or extremities other than the head, face, or neck. The examiner also noted in the negative for painful scarring of the extremities or scars with underlying tissue damage. The examiner noted in the negative for unstable scarring of the trunk or extremities or scarring resulting in frequent loss of covering of the skin. Scar 1 was noted to be 2 cm. in length and 0.5 cm. in width. Regarding functional or occupational limitations, the examiner noted that the Veteran's abdominal scarring does not impact his ability to work. The Board notes that the examiner's marking on the examination that the Veteran did not experience scar pain is inaccurate when compared with the Veteran's consistent statements of abdomen scar pain in the record. Moreover, the examiner did not provide a reason for why the Veteran's consistent reporting of a chronic painful residual abdomen scar is inaccurate, nor did he offer an explanation to refute the Veteran's reporting of chronic residual scar pain in his abdomen. Therefore, the Board assigns the April 2018 medical opinion low probative weight as to whether the scar was painful. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Competency is a legal determination as to whether a witness is qualified to make a statement. See 38 C.F.R. § 3.159(a)(1) (defining competent medical evidence) and 38 C.F.R. § 3.159(a)(2) (defining competent lay evidence). The competency of a lay person to provide a nexus opinion should be analyzed on an individual basis. Lay persons without adequate medical training or expertise are usually not competent to provide such an opinion or opine on the cause of particular symptoms. However, lay reports of continuous symptoms since service for a chronic disease may be sufficient for a continuity of symptomatology analysis under 38 C.F.R. § 3.303(b). The Board also reviewed the relevant evidence during the period on appeal noted in the Veteran's lay statements. The Veteran is competent to report issues such as the residual scar pain of healed abdominal wounds. See Jandreau v. Nicholson, 492 F. 3d at 1377, n. 4. In the March 2013 VA examination, the Veteran reported to the examiner that he experienced constant pain in wound area of his abdomen. The last Board remand found the Veteran reports of constant scar pain in his abdomen to be credible. Smith v. Wilkie, 32 Vet. App. 332 (2020). The Board notes that the Veteran's assertions that he experiences constant pain in the wound area of his abdomen to be credible. After a thorough review of the records, the Board finds that the evidence of record persuasively weighs in favor of granting a separate 10 percent evaluation under Diagnostic Code 7804 because, the evidence shows that the Veteran has 1 abdomen scar that is painful. As indicated in the record, since his March 2013 VA examination, the Veteran has consistently reported the symptomology of residual scar pain from his healed abdominal wounds. Subsequent VA scar examinations in April 2018 and October 2021 did not address the Veteran's abdomen scar pain reporting, or offer a plausible explanation to refute the Veteran's reporting of chronic residual scar pain in his abdomen. Importantly, as noted above, the prior remand found the Veteran's consistent reporting of a chronic painful abdomen scar to be competent and credible. The Board considered the assignment of a 20 percent evaluation during the entirety of the period on appeal and found that it was not warranted as the Veteran's symptoms did not more approximate a finding of three or four scars that are unstable or painful to warrant the assignment of a 20 percent evaluation under Diagnostic Code 7804. The examination reports appear to be accurate on the number of scars with the exception of the 2013 report. The Board has also considered the other Diagnostic Codes pertaining to scars. The Board considered the assigment of a higher 20 percent evaluation under Diagnostic Code 7801 and found that it was not warranted as there is no evidence of a scar with an area or areas of at least 12 square inches, but less than 72 square inches to warrant the assigment of a 20 percent evaluation under Diagnostic Code 7801. The Board also determined that, the Veteran's abdomen scar is not of the head, face, or neck, nor does it cover an area or areas of 144 square inches or greater. Therefore, Diagnostic Codes 7800 through 7802, both prior to and from August 13, 2018, are inapplicable. Finally, the evidence of record shows there are no other disabling effects not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805. As indicated in the record, there is no evidence that the residuals of the Veteran's abdomen scar has resulted in functional or occupational limitations. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Therefore, resolving all doubt in the Veteran's favor, the Board finds that the level of severity of the Veteran's abdominal scar satisfies the criteria for a separate evaluation of 10 percent under Diagnostic Code 7804 for the time period on appeal. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Elliot Harris 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.