Citation Nr: 22019376 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 17-04 817 DATE: April 1, 2022 ORDER Entitlement to service connection for a deviated septum is granted. Entitlement to an initial rating in excess of 10 percent for a residuals of a traumatic brain injury (TBI residuals) is denied. Entitlement to an initial rating in excess of 30 percent for painful and unstable scars is denied. Prior to September 22, 2021, entitlement to an initial compensable rating (higher than 0 percent) for scars of the head, face, or neck is denied. From September 22, 2021, entitlement to a disability rating in excess of 30 percent for scars of the head, face, or neck is denied. FINDINGS OF FACT 1. The Veteran's deviated septum is reasonably shown to be related to or caused by his active service, to include as due to being assaulted in 2007. 2. The Veteran's residuals of TBI are shown to have been productive of mild impairment of memory, but not symptoms warranting more than a level "1" in any category under Diagnostic 8045. 3. Throughout the appeal period, the Veteran had three different scars that were painful and unstable. At no time were five or more of the Veteran's scars described to be painful or unstable, with at least scar being both painful and unstable. 4. Prior to September 22, 2021, the Veteran's scars of the head, face, or neck were not characterized as having one characteristic of disfigurement. 5. From September 22, 2021, the Veteran's scars of the head, face, or neck were characterized as having visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, such as the nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips, or; with two or three characteristics of disfigurement. At no point during the appeal period were the Veteran's scars of the head, face, or neck characterized by visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes, ears, cheeks, or lips), or; with four or five characteristics of disfigurement. CONCLUSIONS OF LAW 1. The criteria have been met for service connection for a deviated septum. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria have not been met for an initial disability rating in excess of 10 percent for residuals of a TBI. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8045. 3. The criteria have not been met for an initial rating in excess of 30 percent for painful and unstable scars. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DC 7804. 4. Prior to September 22, 2021, the criteria have not been met for an initial compensable rating for scars of the head, face, or neck. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DC 7800. 5. From September 22, 2021, the criteria have not been met for a disability rating in excess of 30 percent for scars of the head, face, or neck. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DC 7800. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2005 to September 2009. These matters are before the Board of Veterans' Appeals (Board) on appeal from March 2016 and August 2018 rating decisions by the Department of Veteran Affairs (VA) Regional Office (RO). In June 2016 and September 2018, the Veteran submitted Notices of Disagreement with these rating decisions. In January 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference. A copy of the hearing transcript is of record and has been reviewed. This case was previously before the Board in July 2021 when it was remanded for additional development. The Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11. Vet. App. 268 (1998). In a February 2020 rating decision, the RO granted an earlier effective date of April 12, 2018, for the Veteran's service-connected scars of the head, face, or neck, increased the rating of the Veteran's service-connected painful and unstable scars from 20 percent to 30 percent, effective April 12, 2018, and increased the rating of the Veteran's service-connected TBI residuals from a noncompensable (0 percent) rating to 10 percent, effective April 12, 2018. In a November 2021 rating decision, the RO increased the Veteran's scars of the head, face, or neck from a noncompensable rating (0 percent) to 30 percent, effective September 22, 2021. As these decisions do not constitute full grants, these issues remain on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). During the period of the appeal, in a November 2021 Rating Decision, the RO granted service connection for sleep apnea. Therefore, that claim has been resolved and is no longer before the Board on appeal. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1101. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain disabilities, including arthritis, organic neurological disorders, and psychoses, are presumed to be serviced-connected if they manifest to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. Entitlement to service connection for a deviated septum is granted. The Veteran contends that his deviated septum is related to active service, to include as due to an assault in 2007. In an October 2021 VA examination report, the Veteran was diagnosed with a deviated septum. The examiner opined that it was less likely than not that the claimed condition was incurred in or caused by the claimed in-service, injury, event, or illness. The rationale was that the first record in the Veteran's claims file of a deviated septum was in 2016, where a nasal bones x-ray was obtained and showed a minimal deviation of the nasal septum to the right side. Additionally, multiple visits dated from 2016 and forward showed that the Veteran sought treatment for his deviated septum. The VA examiner noted that according to the Veteran's "subjective history," the Veteran was assaulted somewhere between 2007 and 2009, where he obtained multiple facial blows. The examiner reported that an injury to the nose could cause a deviated septum. However, the examiner noted that there was no documentation that the Veteran obtained a deviated septum at that time. The examiner pointed out that the Veteran has had multiple altercations since leaving active service where he could have sustained facial trauma resulting in the deviated septum. Because of this, the examiner found that there was no nexus. Analysis The Board finds that the October 2021 VA opinion is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The October 2021 opinion seemed to disregard the Veteran's competent and credible statements that he injured his face in 2007. Additionally, the VA examiner opined that the Veteran's deviated septum could have been caused by other physical altercations the Veteran was involved in, when there is no evidence to support this. Because of this, the Board finds that the October 2021 VA opinion is speculative. Id. Although a causal relationship has not been demonstrated through the foregoing October 2021 VA opinion, nor otherwise shown through competent medical opinion evidence, the absence of a "valid medical opinion" is not an absolute bar to service connection. Davidson v. Shinseki, 581 F.3d at 1316. The Board finds the reports by the Veteran, including his January 2021 testimony, of being assaulted in service in 2007 and injuring his face and nose, to be competent, credible, and accurate evidence establishing an injury that caused his deviated septum. 38 C.F.R. §§ 3.303. Based on the above analysis, the Board determines that at the very least, the evidence is evenly balanced for and against ("in relative equipoise") as to whether the Veteran's deviated septum was caused by active service. Resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for a deviated septum is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 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 required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. 1. Entitlement to an initial rating in excess of 10 percent for TBI residuals is denied. The Veteran contends that his TBI residuals are more severe than the initial 10 percent rating currently assigned effective April 12, 2018. The Veteran's TBI residuals are rated under 38 C.F.R. § 4.124a, DC 8045. Legal Criteria Under Diagnostic Code 8045 for residuals of TBI, there are three main areas of dysfunction listed that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, DC 8045. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgement, decision making, spontaneity, and flexibility in changing actions when they are not productive. Cognitive impairment is evaluated under a table that governs the evaluation of cognitive impairment and other residuals of TBI not otherwise specified. Cognitive impairment can also be manifested, and sometimes may only be manifested, by subjective symptoms. Subjective symptoms are also evaluated under the table governing cognitive impairment and other residuals of TBI not otherwise specified, unless the subjective symptom has a distinct diagnosis which may be evaluated under another diagnostic code, such as migraine headaches. Id. Emotional/behavioral dysfunction related to TBI is evaluated under the diagnostic code for mental disorders when there is a diagnosis of a mental disorder. When no mental disorder is diagnosed, emotional/behavioral symptoms of TBI are evaluated under the table governing evaluation of cognitive impairment and other residuals of TBI not otherwise specified. Id. Physical (including neurological) dysfunction related to TBI is generally rated under an appropriate diagnostic code for the physical disability, such as joint or extremity pain, loss of sensation, hearing loss, seizures, etc. Id. The table governing the evaluation of cognitive impairment and other residuals of TBI not otherwise specified contains 10 facts of TBI related to cognitive impairment and subjective symptoms, and rates these criteria by numeric levels from 0 to 3, and in some instances, with a fifth level designated "total." Not every fact has all the numeric levels. A noncompensable (0 percent) evaluation is assigned where the highest numeric level of any facet is 0; a 10 percent evaluation is warranted where the highest numeric level of any fact is 1; a 40 percent evaluation is awarded where the highest numeric level of any facet is 2; a 70 percent evaluation is awarded where the highest evaluation of any fact is 3; and a 100 percent evaluation is assigned where the highest numeric level of any facet is total. Id. The first facet of cognitive impairment and other residuals of TBI not otherwise specified table (Table) is memory, attention, concentration, and executive functions. The Table assigns a level of 0 where the veteran reports no complaints of impairment of memory, attention, concentration, or executive functions; a level of 1 where a veteran reports complaints of mild loss of memory (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances finding words, or often misplacing items, attention, concentration, or executive functions, but where these complaints are not accompanied by objective evidence on testing; a level of 2 where objective testing reveals evidence of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment; a level of 3 where objective testing reveals evidence of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment; and a total level objective testing reveals evidence of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. Id. The second facet of the Table is judgment. The Table assigns a level of 0 for normal judgment; a level of 1 for mildly impaired judgment, being occasionally unable to identify, understand, weigh alternatives, understand the consequences of choices, and make a reasonable decision for complex or unfamiliar decisions; a level of 2 for moderately impaired judgment, being usually unable to identify, understand, weight the alternatives, understand the consequences of choices, and make a reasonable decision for complex or unfamiliar decisions while having little difficulty with simple decisions; a level of 3 for moderately severely impaired judgment, being occasionally unable to identify, understand, weigh the alternatives, understand the consequences of choices, and make a reasonable decision for even routine and familiar decisions; and a total level of impairment for severely impaired judgment, being unable usually unable to identify, understand, weigh the alternatives, understand the consequences of choices, and make a reasonable decision for even routine and familiar decisions. Id. The third facet of the Table is social interaction. The Table assigns a level of 0 for social interaction that is routinely appropriate; a level of 1 for social interaction that is occasionally inappropriate; a level of 2 for social interaction that is frequently inappropriate; a level of 3 for social interaction that is inappropriate most or all of the time. Id. The fourth facet of the Table is orientation. The Table assigns a level of 0 where a veteran is always oriented to person, time, place, and situation; a level of 1 where a veteran is occasionally disoriented to one of the four aspects (person, time, place or situation) of orientation; a level of 2 where a veteran is occasionally disoriented to two of the four aspects of orientation or often disoriented to one aspect of orientation; a level of 3 where a veteran is often disoriented to two or more of the four aspects of orientation; and a total level where a veteran is consistently disoriented to two or more of the aspects of orientation. Id. The fifth facet of the Table is motor activity with an intact motor and sensory system. The Table assigns a level of 0 for normal motor activity; a level of 1 for motor activity that is normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities despite normal motor function); a level of 2 for motor activity that is mildly decreased or with moderate slowing due to apraxia; a level of 3 for motor activity that is moderately decreased due to apraxia; and a total level where motor activity is severely decreased due to apraxia. Id. The sixth facet of the Table is visual and spatial orientation. The Table assigns a level of 0 for normal visual-spatial orientation; a level of 1 for mildly impaired visual or spatial orientation, occasionally getting lost in unfamiliar surroundings, difficulty reading maps or following directions, but able to use assistive devices like a GPS; a level of 2 for moderately impaired visual and spatial orientation, usually getting lost in unfamiliar surroundings, difficulty reading maps, following directions, judging distances, and difficulty using assistive devices such as a GPS; a level of 3 for moderately severely impaired visual spatial orientation, getting lost even in familiar surroundings, unable to use assistive devices such as a GPS; and a total level for severely impaired visual and spatial orientation, being unable to touch or name the parts of the body, identify the relative position in space of two objects, or find the way from one room to another in a familiar environment. Id. The seventh facet of the Table is subjective symptoms. The table assigns a level of 0 for subjective symptoms that do not interfere with work, instrumental activities of daily living, or work, family, or other close relationships; a level of 1 for three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living, or work, family, or other close relationships; and a level of 2 for three or more subjective symptoms that moderately interfere with work, instrumental activities of daily living, or work, family, or other close relationships. Id. The eighth facet of the Table is neurobehavioral effects. The Table assigns a level of 0 for one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction; a level of 1 for one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction or both but do not preclude them; a level of 2 for one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them; and a level of 3 for one or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others. Id. The ninth facet of the Table is communication. The Table assigns a level of 0 where a veteran is able to communicate by spoken and written language and to comprehend spoken and written language; a level of 1 where comprehension or expression, or both, of either spoken language or written language is only occasionally impaired, where a veteran continues to have the ability to express complex ideas; a level of 2 where a veteran has an inability to communicate either by spoken language, written language, or both, more than occasionally but less than half of the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half of the time, and can generally communicate complex ideas; a level of 3 where a veteran is unable to communicate either by spoken language, written language, or both, at least half of the time but not all of the time, or to comprehend spoken language, written language, or both, at least half of the time, relying on gestures or other alternative modes of communication and able to communicate basic needs; and a total level where there is a complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both, with an inability to communicate basic needs. Id. The final facet of the Table is consciousness. The Table assigns a total rating where a veteran has persistently altered state of consciousness, such as a vegetative state, minimally responsive state, or coma. Id. Factual Background In a July 2018 VA examination report for TBI residuals, the Veteran was diagnosed with a TBI. The Veteran stated that the above condition began around 2007, when he was out walking with a friend and a group of Marines assaulted him and beat him up. He reported that he was "knocked out" for a few minutes. The Veteran noted that he had multiple facial, head, and eye injuries. He stated that the assault occurred on Saturday, but did not report it until Monday. Since then, the Veteran reported that he would forget names, dates, directions, people's faces, numbers, conversations, etc. and had to write things down. The VA examiner noted that a complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions was made by the Veteran, but there was no objective evidence of this on testing. The examiner noted that the Veteran subjectively complained of memory loss, described as "I forget what people are telling me. I tend to misplace my car keys, glasses, etc." When the Veteran's cognitive impairment was assessed, he was asked to remember objects/words, and the Veteran was able to remember 1 out of 3 objects after 3 and 5 minutes. Serial 7's subtraction starting at 100 showed that the Veteran had difficulty with this also. The Veteran had difficulty repeating 5 random numbers forward and backwards. The examiner noted that the Veteran forgot things easily, and sometimes the question had to be repeated. The Veteran had some memory problems, forgetting dates, details, etc. The Veteran's judgment was normal. His social interaction was routinely appropriate. He was always oriented to person, time, place, and situation. The Veteran's motor activity was normal. His visual spatial orientation was normal. The Veteran had no subjective symptoms. He had no neurobehavioral effects. The Veteran was able to communicate by spoken and written language and to comprehend spoken and written language. His consciousness was normal. The Veteran had no subjective symptoms or any mental, physical, or neurological conditions or residuals attributable to his TBI. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms. He had no scars related to his TBI. The Veteran's residuals of TBI had no functional impact on his ability to work. In a July 2018 VA opinion, the examiner noted that the Veteran's TBI residuals, specifically his subjective memory problems, might actually be from his already-service-connected posttraumatic stress disorder (PTSD). The examiner reported that the Veteran had PTSD symptoms consisting of anxiety, estrangement, poor concentration, exaggerated startle response, decreased interest, hypervigilance, negative emotional state, persistent negative beliefs, intrusive memories and nightmares, avoidance of triggers, sleep disturbance, agitation, and short temper. According to the VA examiner, the Veteran's TBI examination showed no residuals, no effect on work, and the suggestion of memory issues were more from PTSD. In a July 2018 VA examination report for headaches, the Veteran was diagnosed with migraines. The Veteran stated that his headaches come and go. He reported that he gets a pounding/pulsating headaches on the left and right sides of his head, but only one side only. He noted that it would go away after a few hours. The Veteran's treatment plan included taking medication for his headaches. He experienced headache pain that was pulsating or throbbing head pain. The Veteran also experienced non-headache symptoms associated with his headaches described as sensitivity to light and changes in vision. The duration of his headaches typically lasted less than 1 day and were located on the right side of his head. The VA examiner noted that the Veteran's headaches were not characteristic prostrating attacks, and he did not have very prostrating and prolonged attacks productive of severe economic inadaptability. The examiner noted that the Veteran's headaches impacted his ability to work in that he had limited concentrating during a headache. In a September 2021 VA examination report for residuals of TBI, the Veteran was diagnosed with a traumatic brain injury. The Veteran stated that he was involved in an altercation in 2007 while serving in the Marines. He noted that he was beaten up in the face and head and was knocked out "for about a minute." Post-service, the Veteran went to school and completed an associate degree for math. He then worked as a heavy equipment mechanic and facility maintenance for five years. At the time of the examination, the Veteran worked for GSA as facility maintenance for office buildings. He reported that he got headaches 3-4 times a month, that went away in a day or so. He also noted that he felt anxious and restless all the time. During the examination, the Veteran made a complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but there was no objective evidence of this on testing. His judgement was normal. The Veteran was always oriented to person, time, place, and situation. His motor activity was normal. Visual spatial orientation was normal. The Veteran had subjective symptoms that did not interfere with work, instrumental activities of daily living, or work, family or other close relationships. These included mild or occasional headaches, and mild anxiety. The examiner noted that the Veteran's headaches went away in a day or so, and that he felt anxious and restless all the time. The Veteran had one or more neurobehavioral effects that did not interfere with workplace or social interaction. The examiner reported that the Veteran had a temper issue. The Veteran was going to counseling, but COVID ended that. At the time of the examination, the Veteran was receiving virtual counseling. The Veteran was able to communicate by spoken and written language and comprehend spoken and written language. His consciousness was normal. He had no subjective symptoms or any mental, physical, or neurological conditions or residuals attributable to his residuals of TBI. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms. The examiner noted that none of the conditions attributable to the Veteran's TBI impacted his ability to work. The Veteran had scars associated with his residuals of TBI, but those will be discussed in the section concerning his service-connected scars below. The Board notes that throughout the appeal period, the Veteran received medical treatment for his residuals of TBI. These treatment reports did not measure the severity of his TBI residuals and did not evaluate the nature, extent, and severity during the appeal period. Analysis Based on this evidence, the Board finds that the residuals of the Veteran's TBI do not meet the criteria for a rating higher than 10 percent at any point during the appeal period. 38 C.F.R. § 4.124a, DC 8045. The criteria for a rating in excess of 10 percent would require one of the facets of this condition to have a numerical value of 2 or higher. Id. The evaluations of the Veteran's TBI impairment have simply not demonstrated this level of impairment on any of the examinations throughout the appeal period, and the rest of the medical evidence is similar to these examination reports. On objective testing during VA examinations at multiple points throughout the appeal period, these deficits that the Veteran reported could not be substantiated on cognitive testing. The 10 percent evaluation encompasses memory and attention deficits of precisely this type. Id. The Board finds that the July 2018 and September 2021 VA examination reports and opinions, describing the Veteran's residuals of TBI, are the most probative evidence of record because the examiners reviewed the claims file and provided detailed rationales. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). While the Veteran is competent (qualified) to observe his TBI residuals, primarily centered on his memory, headaches, and psychological symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms, as reflected by the applicable VA diagnostic criteria. Additionally, he does not have the training or credentials to determine the proper disability evaluations concerning his residuals of TBI. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board notes that the Veteran is already service connected for PTSD, evaluated as 30 percent disabling from October 16, 2014, and 70 percent disabling from April 12, 2018. See November 2021 Rating Decision codesheet. The Veteran is separately compensated for his mental health diagnosis in compliance with the rating code's preference that subjective symptoms such as headaches or mental health symptoms be rated according to their more specific rating codes and that neurobehavioral effects be rated under the schedule of ratings for mental health disorders where a mental disorder is diagnosed. 38 C.F.R. § 4.124a, DC 8045. The Board further notes that eliminating the Veteran's separate compensation for his service-connected PTSD and compensating him under the TBI rating code would not be advantageous, even if the Veteran received the highest numeric level for his PTSD symptoms as a subjective symptom, and the highest numeric level for his mental disorder as a neurobehavioral TBI symptom. Subjective symptoms such as anxiety are only eligible for a maximum numeric level of 2 under the Table, which would equate to a 40 percent rating. Id. Based on this analysis, the evidence does not support that the Veteran has symptoms, other than those that are better compensated under specific rating codes, that would warrant a rating for impairment due to TBI greater than 10 percent. Id. The rating code shows a preference that subjective and psychiatric symptoms are to be rated under their specific rating codes. Because of this, there is no advantage to the Veteran in discontinuing his separate ratings and re-rating his psychiatric symptoms as residuals of his TBI. The Board finds that a disability rating in excess of 10 percent for residuals of a TBI are not warranted. Id. 1. Entitlement to an initial rating in excess of 30 percent for painful and unstable scars is denied. 2. Prior to September 22, 2021, entitlement to an initial compensable rating (higher than 0 percent) for scars of the head, face, or neck is denied. 3. From September 22, 2021, entitlement to a disability rating in excess of 30 percent for scars of the head, face, or neck is denied. As there is considerable overlap in the applicable evidence for the Veteran's claims, the Board will discuss them together. Legal Criteria Under DC 7800 for scars of the head face or neck, or other disfigurement of the head face or neck, a 10 percent rating is warranted for one characteristic of disfigurement. 38 C.F.R. § 4.118, DC 7800. A 30 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or; with two or three characteristics of disfigurement. Id. A 50 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement. Id. The maximum 80 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characteristics of disfigurement. Id. Note (1): The 8 characteristics of disfigurement, for purposes of evaluation under 38 C.F.R. § 4.118 are: (1) Scar 5 or more inches (13 or more cm.) in length (2) Scar at least one-quarter inch (0.6 cm.) in length (3) Surface contour of scar elevated or depressed on palpation (4) Scar adherent to underlying tissue (5) Skin hypo-or-hyper-pigmented in an area extending six square inches (39 sq. cm.) (6) Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.) (7) Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.) (8) Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.) Note (2): Rate tissue los of the auricle under DC 6207 and anatomical loss of the eye under DC 6061 or DC 6063, as appropriate. Note (3): Take into consideration unretouched color photographs when evaluating under these criteria. Note (4): Separately evaluate disabling effects other than disfigurement that are associated with individual scar(s) of the head face, or neck, such as pain, instability, and residuals of associated muscle or never injury, under the appropriate diagnostic code(s) and apply § 4.25 to combine the evaluation(s) with the evaluation assigned under this diagnostic code. Note (5): The characteristic(s) of disfigurement may be caused by one scar or by multiple scars; the characteristic(s) required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. Under DC 7804 for scar(s), unstable or painful, a 10 percent rating is warranted for one or two scars that are unstable or painful. § 4.118, DCs 7804. A 20 percent rating is warranted for three or four scars that are unstable or painful. Id. The maximum 30 percent rating is warranted for five or more scars that are unstable or painful. Id. Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): 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. Note (3): Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. Factual Background The Veteran contends that his painful and unstable scars, and his scars of the head, face, or neck are more severe than the evaluations assigned. For his painful and unstable scars (head, face, or neck), the Veteran is rated 30 percent under DC 7804, effective April 12, 2018. For his scars of the head, face, or neck, the Veteran was rated as noncompensable (0 percent) from April 12, 2018, and 30 percent from September 22, 2021, under DC 7800. 38 C.F.R. § 4.118, DCs 7804 and 7800. Prior to September 22, 2021 In an August 2018 VA examination report, the Veteran was diagnosed with scars on his forehead and scars on his neck. He had no scars on the trunk or extremities, but he did have scars or disfigurement of the head, face, or neck. The VA examiner noted that the Veteran had three scars of the head, face, or neck that were painful. The Veteran reported that both scars over his right eyebrow were painful to the touch and the scar on his neck area was large and painful. The examiner also noted that the Veteran had three scars that were unstable, with frequent loss of covering of skin over the scar. The Veteran reported that the scars were big and unstable. None of the Veteran's scars were due to burns. The first scar was located on the Veteran's forehead and measured 1.2cm x 0.1cm. The second scar was located on the Veteran's forehead and measured 1.2cm x 0.1cm. The third scar was located on the Veteran's forehead and measured 1.6cm x 01.cm. The Fourth scar was located on the Veteran's forehead and measured 1.0cm x 0.1cm. The Fifth scar was located on the Veteran's neck and measured 2.0cm x 0.1cm. None of the scars had elevation, depression, adherence to underlying tissue, or missing underlying soft tissue. None of the scars had abnormal pigmentation or texture of the head, face, or neck. There was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. None of the scars of the head, face, or neck resulted in limitation of function or motion. From September 22, 2021 In a September 2021 VA examination report for TBI residuals, the examiner noted that the Veteran had multiple scars on his face and chest which he attributed to his altercation in 2007. The Veteran had 2 scars above his right eye measuring 3cm x 0.2cm wide that were tender to touch. He had a scar on the middle of his forehead measuring 2cm x 0.1cm that was nontender. The Veteran had a scar on the left side of his nose measuring 2cm x 0.1cm that was nontender. In an October 2021 VA examination report for scars/disfigurement, the Veteran was diagnosed with multiple scars/disfigurements. Diagnosis #1 was linear superior to right eye, lower scar, residual of assault. Diagnosis #2 was linear superior to right eye, above lower scar, residual of assault. Diagnosis #3 was keloid scar, anterior neck, residual of assault. Diagnosis #4 was indentation right forehead, residual of assault. The Veteran had no scars on his trunk or extremities. He had scars or disfigurement of the head, face, or neck. None of the Veteran's scars had underlying tissue damage. According to the VA examiner, none of the scars of the head, face, or neck were painful, or unstable. Additionally, none of the scars of the head, face, or neck were due to burns. The first scar located superior to the right eye, lower scar, measured 1.8cm x 0.1cm. The second scar located superior to the right eye, above the lower scar, measured 1.5cm x 0.1cm. The third scar located on the anterior neck measured 2.5cm x 0.8cm. The fourth scar located on the right forehead measured 2cm x 0.1cm. Scar #3 had elevation, depression, adherence to underlying tissue, or missing underlying tissue. Scar #4 had surface contour depressed on palpation. Scar #1 and Scar #2 had hypopigmentation. Scar #3 had hyperpigmentation. The approximate combined total area of the Veteran's scars was 2.5cm. sq. There was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. The Veteran's scars did not result in limitation of function or motion. They did not impact his ability to work. The examiner noted that all the Veteran's scars were palpated with no physical or verbal signs of tenderness or pain. All the scars were stable. In a subsequent October 2021 VA examination report for skin diseases, the Veteran was diagnosed with scar conditions. Specifically, the Veteran was diagnosed with scars of the face that were stable, and scars of the neck that were hypopigmented, raised and linear, and the Veteran claimed caused a tingling sensation. The Veterans scars of the face and neck covered less than 5 percent of his total body area and less than 5 percent of his exposed area. The examiner noted that the Veteran's neck scar was keloid linear, hypopigmented, had a raised face, and was linear in appearance. The Veteran also had a keloid scar below the neck midline, a linear scar on and slightly above his right eyebrow, left nose, and right forehead. The VA examiner noted that the Veteran had a below neck keloid scar, hypopigmented and raised in appearance that measured 1inch x 0.3inch. The Veteran had a right forehead scar that measured 1.5inch x 1inch. A right eyebrow scar that measured 0.5inch x 0.1inch. Another right eyebrow scar that measured 8inch x 0.1inch. A left nose scar that measured 0.25inch x 0.1inch. In a subsequent October 2021 VA examination report for scars/disfigurement, the Veteran was diagnosed with multiple scars. The first was a keloid linear raised scar with surrounding erythema, lower neck, trauma residual. The second was a forehead scar, linear, trauma residual. The third was a right eyebrow linear scar, trauma residual. The fourth was a right eyebrow linear scar, trauma residual. The fifth was a left nose scar, linear, trauma residual. The Veteran had no scars on the trunk or extremities. He had scars or disfigurement of the head, face, or neck. None of the Veteran's scars were with or without underlying tissue damage. The Veteran's first scar was located on his neck. His second scar was located on his forehead. His third and fourth scars were located on his right eyebrow. His fifth scar was located on the left side of his nose. The VA examiner reported that one of the Veteran's scars of the head, face, or neck was painful, the scar below his neck. It was characterized as pain with palpation of scar. None of the Veteran's scars were unstable, with frequent loss of covering of skin over the scar. Additionally, none of his scars were due to burns. The Veterans first scar, located on his neck, measured 2.54cm x 0.762cm. His second scar, located on his forehead, measured 3.81cm x 0.254cm. His third scar, located on his right eyebrow, measured 1.27cm x 0.254cm. The Veteran's fourth scar, located on his right eyebrow, measured 2.032cm x 0.254 cm. The Veteran's fifth scar, located on the left side of his nose, measured 0.634cm x 0.254cm. There was elevation, depression, adherence to underlying tissue, or missing underlying soft tissue on scar #1. There was abnormal pigmentation or texture of the head, face, or neck. Scars #1-4 had hypopigmentation. Scar #1 additionally had abnormal texture that was irregular. The approximate total area of the head, face, and neck with hypo-or-hyperpigmented areas measured 3.747cm sq. The approximate total area of the head, face, and neck with abnormal texture measured 1.94 cm sq. There was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. None of the Veteran's scars resulted in limitation of function or motion. The Veteran noted that he felt tingling/nerve damage on his forehead scar and neck scar. The Veteran's scars did not impact his ability to work. The Board notes that throughout the appeal period, the Veteran received medical treatment for his scars. These treatment reports did not measure the severity of his scars and did not evaluate the nature, extent, and severity during the appeal period. Analysis Concerning the Veteran's painful and unstable scars, the Board concludes that an initial rating in excess of 30 percent is not warranted. § 4.118, DC 7804. Reviewing the various VA examination reports, the Veteran was noted to have three different scars that were painful and unstable. Id. At no time during the appeal period were five or more of the Veteran's scars described to be painful or unstable, with at least scar being both painful and unstable. Id. Because of this, an initial disability rating in excess of 30 percent for painful and unstable scars is not warranted. Concerning the Veteran's scars of the head face or neck, prior to September 22, 2021, a compensable rating (higher than 0 percent) is not warranted. § 4.118, DC 7800. Reviewing the August 2018 VA examination report, prior to September 22, 201, the Veteran's scars of the head, face, or neck were not evaluated as having one characteristic of disfigurement. Id. Noted previously, the 8 characteristics of disfigurement, for purposes of evaluation under 38 C.F.R. § 4.118 are: (1) Scar 5 or more inches (13 or more cm.) in length, (2) Scar at least one-quarter inch (0.6 cm.) in length, (3) Surface contour of scar elevated or depressed on palpation, (4) Scar adherent to underlying tissue, (5) Skin hypo-or-hyper-pigmented in an area extending six square inches (39 sq. cm.), (6) Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.), (7) Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.), and (8) Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Id. Because of this, prior to September 22, 2021, an initial compensable rating for scars of the head, face, or neck is not warranted. From September 22, 2021, the Veteran's scars of the head, face, or neck do not warrant a disability rating in excess of 30 percent. Id. In September 2021 and October 2021 VA examination reports, the Veteran's scars of the head, face, or neck were characterized as having visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, such as the nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips, or; with two or three characteristics of disfigurement. Id. At no point during the appeal period were the Veteran's scars of the head, face, or neck characterized by visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes, ears, cheeks, or lips), or; with four or five characteristics of disfigurement. Id. Because of this, from September 22, 2021, a disability rating in excess of 30 percent of scars of the head, face, or neck is not warranted. The Board has considered the other Diagnostic Codes pertaining to scars. However, the Veteran's scars are superficial, not deep and nonlinear, are not associated with underlying soft tissue damage, and do not cover an area or areas of 39 square cm or greater. Because of this, Diagnostic Codes 7801, 7802, and 7805 are inapplicable. Id. The Board finds that the August 2018, September 2021, and October 2021 VA examination reports, describing the Veteran's painful and unstable scars, and scars of the head, face, or neck, are the most probative evidence of record because the examiners reviewed the claims file and provided detailed rationales. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). While the Veteran is competent (qualified) to observe his scar symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms, as reflected by the applicable VA diagnostic criteria. Additionally, he does not have the training or credentials to determine the proper disability evaluations concerning his scars. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Based on the above analysis, the evidence demonstrates that the Veteran's had three painful and unstable scars. Additionally, prior to September 22, 2021, his scars of the head, face, or neck did not have one characteristic of disfigurement. From September 22, 2021, the Veteran's scars of the head, face, or neck were characterized as having visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, such as the nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips, or; with two or three characteristics of disfigurement. The Veteran's scar symptoms are adequately contemplated by the already assigned initial ratings and current disability ratings. Because of this, an initial rating in excess of 30 percent for painful and unstable scars is not warranted. Likewise, prior to September 22, 2021, an initial compensable rating for scars of the head, face, or neck is not warranted. Finally, from September 22, 2021, a disability rating in excess of 30 percent for scars of the head face, or neck is not warranted. The Veteran and his Agent have not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Additionally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In the present case, as of the September 2021 VA examination report, the Veteran worked for GSA as facility maintenance for office buildings. He has not specifically argued, and the record does not otherwise reflect, that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. Accordingly, the Board concludes that a claim for a total disability rating has not been raised. The Veteran certainly may raise this claim in the future, should he choose to do so. The Board is sympathetic to the Veteran's reports and understands that his disabilities have significant effects on his daily life. However, his symptoms more nearly approximate the assigned ratings in this decision. The Board also notes that this decision does not leave the Veteran without recourse. If his disabilities should worsen in the future, he is free to file claims for increased disability ratings at that time. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Abrams, 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.