Citation Nr: 22051224 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 17-22 244 DATE: September 8, 2022 ORDER An initial disability rating of 10 percent, and no higher, for an anterior trunk scar (right hernia scar) for the period on appeal prior to January 28, 2022, is granted. A disability rating in excess of 10 percent for a right hernia scar for the period on appeal beginning January 28, 2022, is denied. A compensable disability rating for residuals of right inguinal hernia (right hernia residuals) is denied. FINDINGS OF FACT 1. During the entire appellate period, the Veteran's service-connected right hernia scar manifested with discomfort and tenderness; two or more scars that are painful, deep and nonlinear scars covering an area or areas of at least 6 square inches (39 sq. cm), superficial and nonlinear scars covering an area or areas of at least 144 square inches (929 sq. cm.), or any disabling effects not considered under Diagnostic Codes 7800-7805 have not been shown. 2. The persuasive evidence of record does not show that the Veteran's right hernia is recurrent, readily reducible, and well supported by truss or belt. CONCLUSIONS OF LAW 1. For the period on appeal prior to January 28, 2022, the criteria for an initial disability rating of 10 percent for a right hernia scar have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code, 7804. 2. For the period on appeal beginning January 28, 2022, the criteria for a disability rating in excess of 10 percent for a right hernia scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code, 7804. 3. The criteria for a compensable disability rating for right hernia residuals have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.114, Diagnostic Code 7338. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1987 to January 1988. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a September 2021 decision, the Board remanded these issues for additional development, to include VA examinations, which has been substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that a temporary total (100 percent) rating is in effect for right hernia residuals for the period from October 2, 2015, to December 1, 2015. As the maximum rating has already been awarded for this period, the matter of an increased rating for this period is moot and will not be addressed herein. The Board has considered whether an inferred claim for a TDIU has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran's current employment status is unknown. Although the Veteran has reported that he has quit two jobs due to pain, the Veteran and his representative have not alleged, and the record does not suggest, that he is unable to obtain and maintain any employment due solely to his service-connected disabilities. As such, a Rice claim is not raised. Doucette v. Shulkin, 28 Vet. App. 366 (2017). INCREASED RATINGS Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation 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. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Furthermore, the selection of diagnostic codes or applicable rating criteria is not protected and may be appropriately revised if the action does not result in the reduction of compensation. See 38 C.F.R. §§ 3.951, 3.957. The Board has reviewed the entire record but will only discuss the evidence necessary to explain its decision. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence); see Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). VA is responsible for determining whether the evidence persuasively favors one side or another. 38 C.F.R. § 4.3. When there is an approximate or nearly equal balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran and the claim will be granted on the merits. 38 U.S.C. § 5107(b). When the evidence persuasively favors against the claims of the Veteran, the benefit of the doubt doctrine is inapplicable, and the claim will be denied on its merits. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021). Right Hernia Scar The Veteran asserted that a higher disability rating was warranted for his service-connected right hernia scar. The Veteran is currently in receipt of a noncompensable disability prior to January 28, 2022, and a 10 percent disability rating, thereafter, under Diagnostic Code 7804 for his right hernia scar. In evaluating scar residuals, the Board notes that during the appeal period, changes were made to certain Diagnostic Codes under 38 C.F.R. § 4.118. Effective August 13, 2018, VA amended its regulations governing skin disabilities. VA's intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 13, 2018). As the Veteran filed his claim before the August 13, 2018 effective date, the Board will consider whether either the old or new rating criteria is more favorable to the Veteran. Diagnostic Code 7800 (which was unchanged by the 2018 amendments), contemplates scars of the head, face, or neck. 38 C.F.R. § 4.118, Diagnostic Code 7800. Under Diagnostic Code 7800, for disfigurement of the head, face, or neck, a 10 percent disability rating is warranted for scarring with one characteristic of disfigurement. A 30 percent disability rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or two or three of the characteristics of disfigurement. A 50 percent disability rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or four or five characteristics of disfigurement. An 80 percent disability rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or six or more characteristics of disfigurement. 38 C.F.R. § 4.118. The eight characteristics of disfigurement for the purposes of rating under 38 C.F.R. § 4.118 are: scar of 5 in. or more (13 or more centimeters (cm.)) in length; scar at least 1/4 in. (0.6 cm.) wide at its widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding 6 sq. in. (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 sq. in. (39 sq. cm.); underlying soft tissue missing in an area exceeding 6 sq. in. (39 sq. cm.); and skin indurated and inflexible in an area exceeding 6 sq. in. (39 sq. cm.). Id., Note (1). The pre-amended Diagnostic Code 7801 provided disability ratings for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2017). In contrast, the amended Diagnostic Code 7801 contemplates 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 (August 13, 2018). Both the old and new criteria provide that a 10 percent rating is awarded when the area of the scar(s) covers at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). A 20 percent rating is warranted when the area of the scar(s) covers at least 12 square inches (77 square centimeters) but less than 72 square inches (456 square centimeters). A 30 percent rating is warranted when the area of the scar(s) covers at least 72 square inches (456 square centimeters) but less than 144 square inches (929 square centimeters). A 40 percent rating is assigned when the area of the scar(s) covers at least 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, Diagnostic 7801. Note (1) to the pre-amended Diagnostic Code 7801 stated that a deep scar is one associated with underlying soft tissue damage. Prior to August 13, 2018, Diagnostic Code 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, Diagnostic 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, Diagnostic Code 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. Under both the old and new rating criteria, Diagnostic Code 7804 provides disability ratings for scars that are unstable or painful. 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. Note (1) states 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, an additional 10 percent should be added to the evaluation based on the total number of unstable or painful scars. Note (3) states that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. 38 C.F.R. § 4.118, Diagnostic 7804. Under the old rating criteria, Diagnostic Code 7805 provided that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 under an appropriate Diagnostic Code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2017). The Board notes that this diagnostic code is largely unchanged under the new amendments apart from the replacement of the phrase "(including linear scars)" with "and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, or 7804." 38 C.F.R. § 4.118, Diagnostic Code 7805 (August 13, 2018). In every instance where the schedule does not provide a 0 percent rating for a diagnostic code, a 0 percent rating will be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. Turning to the evidence of record, in a January 2016 VA hernia examination, the Veteran reported concerns. The Veteran's right hernia scar that was not painful or greater than 39 square centimeters. One scar was 2.0 centimeters by 0.25 centimeters, was healing, linear, purplish coloring, non-tender, and there was no active inflammation. The other scar was 24.0 centimeters by 0.50 centimeters, linear, healing, purplish coloring, non-tender, and there was no active inflammation. The Veteran reported decreased sensation around the perimeter of the scar. At a January 2017 VA scar examination, the Veteran was found to have a nonpainful 9-centimeter scar. In his April 2017 substantive appeal, the Veteran reported pain due to his hernia and that there is a likelihood his hernia could reappear. The scar was "deformed, bulging, and cause[d] an uneasy discomfort." In a February 2018 VA hernia examination, the Veteran was found not to have an unstable or painful scar. The scar was 13 centimeters by 0.25 centimeter. The scar was smooth and well healed. In January 2022, the Veteran was afforded a VA examination. The Veteran was assessed with a post-surgical hernia repair scar 12.4 centimeters by 0.2 centimeters. He complained of swelling slightly above and on the mons pubis. It was noted to have improved since onset. The scar was not noted to be painful or unstable, but there was residual swelling, and the scar was tender to palpation. Following a review of the record and applicable legal criteria, for the reasons detailed below, the Board finds that a 10 percent disability rating, and no higher, prior to January 28, 2022, is warranted. The Board also finds that a disability rating in excess of 10 percent is not warranted at any point during the entire appeal period. First, there is an approximate or nearly equal balance of positive and negative evidence as to whether a 10 percent compensable disability rating is warranted under Diagnostic Code 7804, for a painful scar, prior to January 28, 2022. In this regard, although the medical evidence of record does not show that the Veteran experienced a painful or unstable scar, the Veteran has consistently and competently reported experiencing swelling and discomfort during the entire appeal period. The Veteran is certainly competent to describe his observations and the Board finds that his statements are credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). These statements are supported by the finding in the January 2022 VA examination that a scar was tender to palpation. As such, resolving the benefit of the doubt in favor of the Veteran, the Board finds that a 10 percent disability rating, prior to January 28, 2022, under Diagnostic Code 7804. Next, regarding the entire period on appeal, there is no indication that the Veteran has two or more or unstable or painful scars. Accordingly, the persuasive evidence of record does not show that a higher disability rating under Diagnostic Code 7804 is warranted at any time during the appeal period. The Board has also considered whether the Veteran is entitled to a separate or higher disability rating at any point during the appeal period under other applicable Diagnostic Codes. Here, the Veteran's right hernia scar is not a burn scar, is not at least 39 square cm, or 929 sq. cm, does not manifest with disfigurement on the head, face, or neck, and the disabling effects (pain) is considered under Diagnostic Code 7804. Accordingly, the Board finds that Diagnostic Codes 7800, 7801, 7802, and 7805 (to include the amended Diagnostic Codes) are not applicable in this case. In reaching the above determinations, the Board has considered all the Veteran's competent lay assertions. See Layno, 6 Vet. App. 465, 469-70. However, the Board finds that the objective medical findings by skilled professionals, which incorporate the Veteran's competent assertions, provide the most persuasive evidence regarding the limitations posed by the Veteran's right hernia scar. Accordingly, an initial 10 percent disability rating, and no higher for a right hernia scar prior to January 28, 2022, is granted. A disability rating in excess of 10 percent for a right hernia scar is denied. Right Hernia Residuals The Veteran asserted that a higher disability rating was warranted for his service-connected right hernia residuals. Here, the Veteran has been assigned a noncompensable disability rating for his right hernia residuals for the period on appeal prior to October 2, 2015, and beginning December 1, 2015, under Diagnostic Code 7338. 38 C.F.R. § 4.114. Under Diagnostic Code 7338, a noncompensable evaluation is warranted for a hernia that is small, reducible, or without true hernia protrusion; or that is not operated on but is still remediable. A 10 percent evaluation is warranted for recurrent postoperative hernias, readily reducible and well supported by truss or belt. A 30 percent evaluation is warranted for recurrent postoperative hernias or unopened irremediable hernias, not well supported by truss, or not readily reducible. A 60 percent evaluation is warranted for large, recurrent postoperative hernias that are not well supported under ordinary conditions and not readily reducible when considered inoperable. Turning to the evidence of record, August 2015 private treatment records shows the Veteran experiencing pain. The Veteran was assessed with minimal pain upon straining and bilateral inguinal hernia not incarcerated or strangulated and moderate in size. A September 2015 preoperative treatment record indicates that the hernia was non-recurrent. In September 2015, the Veteran was afforded a VA examination. The Veteran was noted to have a small right hernia, readily reducible and with no indication for support. In a January 2016 VA examination, the Veteran reported concerns. No right hernia was detected and there was no indication for support. In a January 2017 VA examination, the Veteran reported occasional swelling and denied bowel or bladder dysfunction. No hernia was detected and there was no indication for a supporting belt. In September 2016 claim, the Veteran reported pain and swelling. In a February 2018 VA examination, the Veteran reported that he continued to have pain and discomfort especially noted when he is active and performing any moderate to heavy lifting. He reported having to quit two jobs due to discomfort and pain associated with lifting in the past year. He lasted only "a few to several days." No hernia was detected and there was no indication for a supporting belt. In a January 2022 VA examination, the Veteran's right hernia was noted to be resolved but there was residual swelling. No hernia was detected. Following a review of the applicable legal criteria and the entirety of the evidence of record, a higher disability rating for the Veteran's right hernia residuals is not warranted in this case. Specifically, the evidence of record, to include lay assertions, treatment records, and VA examinations, do not show that the Veteran's right hernia was recurrent, readily reducible, and/or well supported by a truss or belt. Accordingly, a higher disability rating of 10 percent under Diagnostic Code 7338, which contemplates such symptoms, is not warranted. In reaching the above determination, the Board has considered the Veteran's competent lay assertions, to include his reports of pain and swelling. The Veteran is certainly competent to describe his observations and the Board finds that his statements are credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno, 6 Vet. App. 465, 469-70. However, the Veteran has not been shown to be competent to identify a specific level of disability. The Board finds that the objective medical findings by skilled professionals, which incorporate the Veteran's competent assertions, provide the most persuasive evidence regarding the limitations posed by the Veteran's right hernia residuals. In this case, the medical findings adequately address the criteria under which the disability is evaluated and clearly demonstrate that the degree of impairment over the period at issue. Therefore, the Board accords these findings greater weight than the Veteran's complaints as to any increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). (Continued on the next page) Accordingly, a compensable disability for right hernia residuals is not warranted, and the claim must be denied. Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kaufer, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.