SCARS DUE TO OTHER CAUSES, NOT OF THE HEAD, FACE, OR NECK

Summary

The veteran, who served from September 1969 to September 1971 and again from January 1976 to May 1996, appealed the denial of an initial compensable rating for scars on his left knee. The veteran claimed that scars resulting from surgical procedures to correct his service-connected left knee disabilities warranted a rating higher than 0 percent. The Board reviewed the evidence, including two VA examinations. The January 2019 examination noted two scars totaling approximately 1.2 square centimeters and found them not unstable or painful. A subsequent September 2020 examination, following another surgery, measured three scars with a combined area of approximately 8.3 square centimeters. The Board applied Diagnostic Code 7802, which pertains to scars not on the head, face, or neck. Under this code, a 10 percent rating requires a combined scar area of at least 929 square centimeters. The Board found that the veteran's scars, measuring less than 10 square centimeters, did not meet the threshold for any compensable rating under the applicable diagnostic codes. The Board denied the claim, finding the evidence persuasively against the claim and therefore the benefit-of-the-doubt doctrine was not applicable. The veteran's claim for an initial compensable rating for left knee scars is denied.

Rationale

Scars measured less than 10 sq cm, far below the 929 sq cm threshold for a 10% rating under DC 7802.; Applicable diagnostic codes (7800-7805) were reviewed, and only DC 7802 was deemed potentially applicable.; Scars were not painful or unstable, nor were they on the head, face, or neck, nor burn scars.

Full Decision Text

Citation Nr: A22009603
Decision Date: 05/24/22	Archive Date: 05/24/22

DOCKET NO. 210923-187421
DATE: May 24, 2022

ORDER

Entitlement to an initial compensable rating for scars, left knee is denied.

FINDING OF FACT

The Veteran's post-surgical scars on his left knee, and are neither painful nor unstable, and measure less than 6 square inches, or 39 square centimeters.

CONCLUSION OF LAW

The criteria for an initial compensable rating for scars, left knee, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.118, Diagnostic Code (DC) 7802.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from September 1969 to September 1971, and from January 1976 to May 1996.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office.

The Veteran timely appealed to the Board by submitting a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement (NOD)) in September 2021. He selected the evidence submission review lane, which allowed him 90 days following the receipt of his NOD to submit additional evidence. 38 C.F.R. § 20.202(b)(3).

Entitlement to an initial compensable rating for scars, left knee.

The Veteran claims that his scars, due to surgical procedures to correct his service-connected disabilities in his left knee, warrant a disability rating in excess of 0 percent.

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

A claimant is entitled to the benefit-of-the-doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When the evidence supports the claim or is in relative equipoise, the claim will be granted. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If the preponderance of the evidence weighs against the claim, it must be denied. Id; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Diagnostic Codes 7800 to 7805 pertain to scars. 38 C.F.R. § 4.118. The Schedule of ratings for the skin were amended effective August 13, 2018. See 83 Fed. Reg. 32,592 (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. Prior to August 13, 2018, the Board will consider the former version of the diagnostic codes only (former code); however, for the period beginning August 13, 201
 App. 518, 519 (1996).

Diagnostic Codes 7800 to 7805 pertain to scars. 38 C.F.R. § 4.118. The Schedule of ratings for the skin were amended effective August 13, 2018. See 83 Fed. Reg. 32,592 (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. Prior to August 13, 2018, the Board will consider the former version of the diagnostic codes only (former code); however, for the period beginning August 13, 2018 the Board will consider both the old and amended version (amended code) of the diagnostic codes and rate based on whichever is most favorable to the Veteran. The relevant diagnostic codes in this case were not significantly changed.

The Board notes that the relevant DC is 7802 (scars due to other causes, not of the head, face, or neck). Under DC 7802, the only compensable rating possible is a 10 percent rating for a scar (or scars) with a combined area that is 144 square inches (929 square centimeters) or greater. 

DC 7800 does not apply as it pertains to scars of the hear, face, or neck. DC 7801 does not apply since that rating schedule only pertains to burn scars, and 7804 does not apply since the Veteran's scars are neither painful nor unstable (more on this below). Finally, DC 7805 does not apply since, as noted above, the Veteran's condition is evaluated under another applicable diagnostic code.

The Veteran's scars are due to two surgeries in the 1970s, as well as a February 2019 total knee arthroplasty. While the scars are referenced in multiple places in the Veteran's medical files, the only in-depth examination specifically addressing the severity and extent of his scars was a January 2019 VA examination. At the time, the examiner noted two scars on the Veteran's left knee, one with an area of 7.5cm by 0.1cm, and the second measuring 4.5cm by 0.1cm, for a total approximate area of around 1.2 square centimeters. The examiner noted that the Veteran's scars were not unstable, nor were they painful or tender. 

In September 2020 a VA examination of the Veteran's left knee noted that the Veteran had three scars on his left knee. This is due to the fact that in between the first VA examination in January 2019 and September 2020, the Veteran had undergone another surgery on his left knee. The examiner measured the first scar as being 18cm by 0.3cm, the second as 7cm by 0.3cm, and the third scar measured 4cm by 0.2cm. The total combined area for the three scars was approximately 8.3 square centimeters. 

The Board finds that the medical evidence does not show that a 10 percent rating under DC 7802 is warranted. This is because the Veteran's scars measure, at most, a total combined area of a little less than 10 square centimeters, far less than the required 929 square centimeters. Furthermore, DCs 7800, 7801, 7804, and 7805 do not apply as the Veteran's scars are not affecting his head, face, or neck, not due to burns, are not painful or unstable, and are otherwise fully contemplated by DC 7802.

The Veteran's claim is denied. In denying a higher rating, the Board finds that the evidence is persuasively against such aspect of the Veteran's claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and an increased rating for left knee scars is not warranted.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

 

 

Richard Kettler

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Neville, 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.