Case A26038870

Summary

The veteran, who served in the United States Army from August 1974 to February 1976, appeals the denial of increased ratings for skin conditions and a right flank scar, as well as the denial of a Total Disability based on Individual Unemployability (TDIU). The Board granted an earlier effective date of November 30, 2012, for the TDIU and for Dependents' Educational Assistance (DEA) benefits, aligning with the date service connection for his back condition was established. The Board found that the veteran's service-connected back condition, along with other service-connected disabilities, rendered him unable to secure substantially gainful employment since November 30, 2012, as supported by a private vocational rehabilitation consultant's opinion. However, the Board denied an increased rating for his skin conditions (acne, pseudofolliculitis barbae, and scarring) beyond the existing 60 percent, finding that the evidence did not meet the criteria for a higher evaluation under the applicable diagnostic code. Similarly, the Board denied a compensable rating for his right flank scar, as it did not meet the criteria for size, pain, or instability under the relevant diagnostic codes. The veteran's service period was noted, and the decision referenced the limitations of the Direct Review docket, which restricts consideration to evidence of record at the time of the AOJ decisions.

Rationale

Vocational consultant opined Veteran unable to secure substantially gainful employment since November 30, 2012; Service-connected back condition primarily rendered Veteran unable to perform physical acts required of employment; Granted earlier effective date for TDIU aligned with service connection for back condition

Full Decision Text

Citation Nr: A26038870
Decision Date: 04/27/26	Archive Date: 04/27/26

DOCKET NO. 250306-521996
DATE: April 27, 2026

ORDER

Entitlement to an earlier effective date of November 30, 2012 for the award of a total disability rating based on individual unemployability (TDIU) is granted.

Entitlement to an earlier effective date of November 30, 2012 for the award of basic eligibility to Dependents' Educational Assistance (DEA) benefits based on permanent and total disability status is granted.

Entitlement to a rating in excess of 60 percent for scarring of the head and neck due to acne and pseudofolliculitis, to include acne of the back is denied.

Entitlement to a compensable rating for scar, right flank is denied.

FINDINGS OF FACT

1. Beginning November 30, 2012, the Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment.

2. The Veteran's DEA benefits were granted based on permanent and total disability status, consistent with the grant of his TDIU.

3. The Veteran's scarring of the head and neck due to acne and pseudofolliculitis, to include acne of the back required constant or near constant topical retinoids and oral immunosuppressive drugs over the past 12-month period.

4. The Veteran's right flank scar does not cover an area of 144 square inches or more and is not painful or unstable.

CONCLUSIONS OF LAW

1. The criteria for an earlier effective date of November 30, 2012 for the grant of a TDIU have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.160, 3.400.

2. The criteria for an earlier effective date of November 30, 2012 for the grant of basic eligibility to DEA benefits based on permanent and total disability status have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.160, 3.400.

3. The criteria for a rating in excess of 60 percent for scarring of the head and neck due to acne and pseudofolliculitis, to include acne of the back have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118, Diagnostic Codes (DCs) 7806, 7828.

4. The criteria for a compensable rating for scar, right flank have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.118, DC 7802.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from August 1974 to February 1976.

In the March 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the March 2024 and November 2024 agency of original jurisdiction (AOJ) decisions on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decisions on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If evidence was submitted during the period after the AOJ issued the decision, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

I. Earlier Effective Date

Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U
al Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

I. Earlier Effective Date

Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

1. Entitlement to an effective date earlier than May 21, 2020 for the grant of a TDIU.

2. Entitlement to an effective date earlier than May 21, 2020 for the grant of basic eligibility to DEA benefits based on permanent and total disability status.

By way of background, the Veteran was first granted service connection for acne of the face in an April 1982 rating decision, evaluated at 0 percent, effective June 16, 1981. Following a request for an increased rating, in a November 1995 rating decision, the Veteran's acne of the face evaluation was increased to 10 percent, effective April 28, 1995. Following another request for an increased rating, in a November 2005 rating decision, the Veteran's evaluation for acne of the face with residual scarring was increased to 30 percent, effective March 22, 2005. 

The Board notes that in April 2006, the Veteran submitted an application for a TDIU listing eczema, skin condition, and herniated disc disease as conditions preventing him from working. Following an updated VA examination, the AOJ issued an August 2006 rating decision increasing the Veteran's acne of the face with residual scarring evaluation to 60 percent, effective June 3, 2005, and denying a TDIU. The Board notes that at this time the Veteran was not service connected for any back conditions.

In June 2008, the Veteran requested service connection for depression as secondary to his skin conditions and again requested a TDIU due to his skin conditions. In a July 2008 rating decision, the AOJ proposed to reduce the rating for the Veteran's acne of the face with residual scarring from 60 percent to 0 percent. In response, the Veteran requested another VA examination for his skin conditions. In a June 2009 rating decision, the AOJ granted service connection for adjustment disorder with mixed emotional features, evaluated at 30 percent, effective July 1, 2008; denied a TDIU; and deferred an evaluation for the Veteran's acne. In a separate June 2009 rating decision, the AOJ decreased the Veteran's acne of the face with residual scarring evaluation from 60 percent to 10 percent, effective September 1, 2009. The Veteran submitted buddy statements and additional medical evidence in support of his skin claim, but in February 2010, the AOJ issued a rating decision continuing the 10 percent rating. The Board notes that within this rating decision, the AOJ also granted service connection for asthma and bullous emphysema, status post bullectomy, residuals of acute respiratory disease, effective July 1, 2008, evaluated at 10 percent. Following additional evidence from the Veteran, the AOJ issued another March 2010 rating decision continuing the 10 percent rating for acne of the face with residual scarring and increasing the Veteran's asthma and bullous emphysema rating to 30 percent, effective July 1, 2008, based on his required daily use of an inhaler.

In June 2010, the Veteran requested service connection for pseudofolliculitis barbae. Following a VA examination, in January 2011, the AOJ issued a rating decision granting service connection for pseudofolliculitis barbae evaluated at 0 percent, effective June 2, 2010, the date of claim. Following additional medical evidence submitted by the Veteran and another VA examination, the AOJ issued a March 2012 rating decision continuing the Veteran's acne of the face with residual scarring evaluation at 10 percent.

In April 2012, the Veteran submitted a skin diseases disability benefits questionnaire completed by a VA PA. However, a report of general information dated May 23, 2012 notes "Veteran called today to CANCEL his 023 claim dated 04/27/2012 for Acne and Barbae conditions. Please cancel this claim. Thanks
 a rating decision granting service connection for pseudofolliculitis barbae evaluated at 0 percent, effective June 2, 2010, the date of claim. Following additional medical evidence submitted by the Veteran and another VA examination, the AOJ issued a March 2012 rating decision continuing the Veteran's acne of the face with residual scarring evaluation at 10 percent.

In April 2012, the Veteran submitted a skin diseases disability benefits questionnaire completed by a VA PA. However, a report of general information dated May 23, 2012 notes "Veteran called today to CANCEL his 023 claim dated 04/27/2012 for Acne and Barbae conditions. Please cancel this claim. Thanks."

A review of the file shows that while the Veteran had several other claims pending during this time, he did not request any increased rating for his skin conditions again until June 2020, when he submitted a statement in support of claim contending that he was unable to work due to his adjustment disorder, skin conditions, and asthma. At the same time, he submitted a fully developed claim requesting an increased rating for his adjustment disorder, pseudofolliculitis barbae, and acne of the face and back, as well as another application for a TDIU. The Board notes that prior to these June 2020 filings, VA had acknowledged a May 21, 2020 intent to file.

Following updated VA examinations, the AOJ issued an August 2020 rating decision increasing the Veteran's adjustment disorder with mixed emotional features of anxiety and depression to 50 percent, effective May 21, 2020, and also issued a November 2020 rating decision granting an increased evaluation of 50 percent for the Veteran's scarring of the head and neck due to acne and pseudofolliculitis barbae, to include acne of the back, effective May 21, 2020. In the same rating decision, the AOJ denied a TDIU and continued to evaluate the Veteran's asthma and bullous emphysema at 30 percent.

In December 2020, the Veteran filed a supplemental claim again requesting a TDIU. The AOJ denied this request in a rating decision that same month. In April 2021, the Veteran filed another supplemental claim again requesting a TDIU. Following updated VA examinations for the Veteran's service-connected conditions, the AOJ issued a February 2022 rating decision increasing the Veteran's scarring of the head and neck due to acne and pseudofolliculitis barbae, to include acne of the back to 60 percent, effective April 22, 2021; granting service connection for a scar, right flank as secondary to the Veteran's service-connected asthma and bullous emphysema, status post bullectomy, residuals of acute respiratory disease, evaluated at 0 percent effective April 22, 2021; and continuing to deny a TDIU. 

The Board notes that in August 2022 the AOJ issued a rating decision granting service connection for intervertebral disc syndrome (IVDS) with degenerative arthritis and right lateral recess extruded disc at L5 with spinal stenosis, evaluated at 40 percent, effective June 13, 2022. Within this same rating decision, the Veteran was also granted service connection for radiculopathy of the right lower extremity and an incisional scar for his back surgery, both also effective June 13, 2022, and evaluated at 10 and 0 percent respectively.

In January 2023, the Veteran requested a higher-level review of the February 2022 rating decision. In response, the AOJ issued a March 2023 rating decision, finding clear and unmistakable error in the evaluation of the Veteran's scarring of the head and neck due to acne and pseudofolliculitis barbae, to include acne of the back, establishing the 60 percent evaluation from May 21, 2020, the date of the intent to file; finding clear and unmistakable error of the assigned effective date for scar, right flank, instead assigning a July 1, 2008 effective date, consistent with the date service connection was granted for the conditions from which the scar resulted (asthma and bullous emphysema); and finding a duty to assist error with regard to the TDIU claim.

In July 2023, the Veteran submitted a TDIU vocational assessment report completed by a vocational rehabilitation consultant opining that the Veteran has been unable to work due to his service-connected disabilities since at least November 2012. In a November 2023 rating decision, the AOJ granted DEA benefits, effective July 20, 2023, as well as granted service connection for radiculopathy of the left lower extremity for both the fem
 flank, instead assigning a July 1, 2008 effective date, consistent with the date service connection was granted for the conditions from which the scar resulted (asthma and bullous emphysema); and finding a duty to assist error with regard to the TDIU claim.

In July 2023, the Veteran submitted a TDIU vocational assessment report completed by a vocational rehabilitation consultant opining that the Veteran has been unable to work due to his service-connected disabilities since at least November 2012. In a November 2023 rating decision, the AOJ granted DEA benefits, effective July 20, 2023, as well as granted service connection for radiculopathy of the left lower extremity for both the femoral and the sciatic nerves and granted an earlier effective date for the Veteran's back conditions to July 20, 2023, increasing his total combined rating to 100 percent.

In January 2024, the Veteran filed a supplemental claim and requested an increased rating for his skin conditions and scar, as well as a TDIU as part and parcel of the increased rating scar, right flank claim. In a March 2024 rating decision, the Veteran's scarring of the head and neck due to acne and pseudofolliculitis barbae, to include acne of the back was continued at 60 percent, and his scar, right flank was continued at 0 percent. In a separate July 2024 rating decision, TDIU was denied due to no new and relevant evidence being submitted. In October 2024, the Veteran requested a higher-level review arguing that a TDIU is not moot due to the Veteran's current 100 percent combined rating and that an effective date back to at least July 2008 should be considered. In a November 2024 rating decision, the AOJ granted a TDIU and DEA benefits effective May 21, 2020, the date of the intent to file for the Veteran's increased rating skin claims. The instant appeal ensued.

The Board notes that following additional review, the AOJ granted an earlier effective date of November 30, 2012 for the Veteran's IVDS with degenerative arthritis and right lateral recess extruded disc at L5 with spinal stenosis. See August 2022 rating decision. The Veteran was also granted service connection for a right foot sesamoiditis, status post right third toe injury, evaluated at 10 percent, effective October 17, 2012. See April 2020 rating decision. 

Specifically, the Veteran's representative has contended that the Board must consider entitlement to a TDIU since July 1, 2008, the period on appeal for the Veteran's increased rating claim for his right flank scar, because the Veteran has not worked in a substantially gainful capacity since March 2005, and his service-connected disabilities have caused physical and mental health limitations. The Veteran's representative further contends that the Board must find the Veteran is entitled to a TDIU from at least November 30, 2012, consistent with the vocational rehabilitation consultant's findings. 

A thorough review of the file shows that the Veteran has not been able to follow or secure substantially gainful employment due to his service-connected disabilities since November 30, 2012. Specifically, the Veteran's private vocational rehabilitation consultant opined that "the Veteran's service-connected back condition and right foot condition, since at least November 2012, in addition to his right lower extremity radiculopathy since February 2019, have at least as likely as not precluded his ability to meet employer expectations of adequate pace and productivity." Later in his report, the vocational rehabilitation consultant opined "Furthermore, in my vocational opinion, the Veteran has at least as likely as not been unable to satisfy employer standards of adequate pace, productivity, reliability, and interpersonal workplace communication due to symptoms associated with his service-connected adjustment disorder with mixed emotional features of anxiety and depression associated with scarring [of the] head and neck due to acne and pseudofolliculitis, to include acne of the back since at least November 2012 and continuing to the present." Finally, the vocational rehabilitation consultant opined "In conclusion, in my vocational opinion, it is at least as likely as not that [the Veteran] has been unable to secure and follow substantially gainful employment, in any occupation regardless of skill or exertional level, since at least November 2012 and continuing to the present, due to his service-connected adjustment disorder, asthma, right foot condition, and back condition. It is my vocational opinion that the Veteran's service-connected right lower extremity radiculopathy has at least as likely as not further precluded [the Veteran] from securing and following substantially gainful employment, to include unskilled sedentary employment, since at least February 2019." Accordingly,
 to the present." Finally, the vocational rehabilitation consultant opined "In conclusion, in my vocational opinion, it is at least as likely as not that [the Veteran] has been unable to secure and follow substantially gainful employment, in any occupation regardless of skill or exertional level, since at least November 2012 and continuing to the present, due to his service-connected adjustment disorder, asthma, right foot condition, and back condition. It is my vocational opinion that the Veteran's service-connected right lower extremity radiculopathy has at least as likely as not further precluded [the Veteran] from securing and following substantially gainful employment, to include unskilled sedentary employment, since at least February 2019." Accordingly, the Board finds that a TDIU due to service-connected disabilities is warranted since November 30, 2012.

When reviewing the available medical evidence before this time, the Board notes that since July 1, 2008 the Veteran was only granted service connection for his skin conditions, asthma and bullous emphysema, and adjustment disorder. VA treatment records note that the Veteran stopped working as a car salesman in March 2005 due to his back conditions. A VA examination from August 2006 noted that the Veteran's only functional limitations due to his skin condition was that "sun-sensitivity prevents him from working outside." 

A September 15, 2007 letter from the Social Security Administration (SSA) notes that the Veteran was granted disability benefits beginning March 7, 2005 due to severe impairments of "back problems, asthma, hypertension, and obesity." The Board notes that of these conditions, the Veteran is only service connected for asthma prior to November 30, 2012.

In a June 2008 letter from his private physician with regard to his asthma and emphysema, it was noted that the "[Veteran] continues to have reduced exercise capacity and wheezing on a daily basis I am currently treating him symptomatically with an Albuterol inhaler to be used as needed for wheezing. In addition, I am adding a steroid inhaler for maintenance therapy."

At a July 2008 VA examination for his skin conditions, the examiner again noted that it was hard for the Veteran to be outside due to his sun sensitivity, but that he was "unemployed due to medical disability from back".

At a February 2009 VA examination for the Veteran's adjustment disorder it was noted that "He is not working. He last worked in March of 2005. He was a sales consultant at a [car] dealership. He was there five years. He worked full time. He quit work when he had back surgery and hasn't been back." With regard to functional impairment, the examiner opined "The Veteran's psychiatric symptoms result in mild impairment of employment and social functioning and it is my opinion that his psychiatric condition does not preclude employment."

At an April 2009 VA examination for his respiratory conditions, the examiner opined that the Veteran had a moderate limitation to chores and shopping, a mild limitation to traveling, severe limitation to exercise, and sports and recreation were prevented by his asthma and emphysema. However, the examiner noted that the Veteran's feeding, bathing, dressing, toileting, and grooming were not affected and that the Veteran was not currently employed. Finally, in a July 2009 letter from his private physician it was again noted that the "[Veteran] continues to have reduced exercise capacity and wheezing - on a daily basis. He has been treated symptomatically with Albuterol inhalers to be used as needed for wheezing, also a steroid inhaler for maintenance therapy."

The Board notes that the evidence of record strongly points to the Veteran's inability to perform the physical acts required of employment primarily due to his service-connected back conditions as noted by his private rehabilitation consultant, for which service connection was granted on November 30, 2012. The Board finds that the evidence does not persuasively support a finding that a TDIU is warranted from July 1, 2008. Instead, the medical evidence seems to indicate that with some limitations, the Veteran's skin conditions, asthma and emphysema, and adjustment disorder did not preclude employment. The Veteran stopped working due to his back which was not service connected until November 30, 2012. Moreover, the Veteran was granted SSA disability benefits in part due to his back and other non-service-connected conditions. As the persuasive evidence supports a finding that the Veteran's service-connected back condition primarily renders him unable to perform the physical acts required of employment, entitlement to a TDIU earlier than November 30, 2012, the date of service connection for his back condition, is not warranted.

For the purposes of?DEA?benefits, basic eligibility exists if a Veteran was discharged from service under conditions
 some limitations, the Veteran's skin conditions, asthma and emphysema, and adjustment disorder did not preclude employment. The Veteran stopped working due to his back which was not service connected until November 30, 2012. Moreover, the Veteran was granted SSA disability benefits in part due to his back and other non-service-connected conditions. As the persuasive evidence supports a finding that the Veteran's service-connected back condition primarily renders him unable to perform the physical acts required of employment, entitlement to a TDIU earlier than November 30, 2012, the date of service connection for his back condition, is not warranted.

For the purposes of?DEA?benefits, basic eligibility exists if a Veteran was discharged from service under conditions other than dishonorable, and if he has a permanent and total service-connected disability.?38 U.S.C. § 3501;?38 C.F.R. §§ 3.807, 21.3021. There are other avenues through which basic eligibility may be granted; however, they involve factors not applicable here.?Id. 

The Board has determined that an earlier effective date of November 30, 2012 is warranted for the grant of the Veteran's TDIU. Since eligibility for DEA benefits is predicated on a finding of a permanent and total disability in this case, the effective date of such eligibility is the date permanent and total disability was awarded. Accordingly, entitlement to an earlier effective date of November 30, 2012 for the award of basic eligibility to DEA benefits based on permanent and total disability status is granted. 

II. Increased Rating

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

3. Entitlement to a rating in excess of 60 percent for scarring of the head and neck due to acne and pseudofolliculitis, to include acne of the back.

During the period at issue, the Veteran was most recently given a VA examination for his skin conditions in January 2024. Here, the examiner diagnosed pseudofolliculitis barbae, and scarring of the head and neck due to acne and pseudofolliculitis barbae, to include acne of the back. With regard to treatment within the past 12 months, the examiner noted that the Veteran was on corticosteroids or other immunosuppressive medications listing topical hydrocortisone 2.5% and triamcinolone 0.1% for six weeks or more, but not constant, topical retinoids of tretinoin 0.05% constantly or near constantly, and oral doxycycline 50 mg nightly constantly or near constantly. The examiner also noted daily use of benzoyl peroxide 10% wash used daily. With regard to affected areas, the examiner found that the Veteran's pseudofolliculitis barbae affected less than 5 percent of both total body area and exposed body area; while his acne affected less than 5 percent of his exposed body area and 5-20 percent of his total body area. Under specific skin conditions, the examiner noted that the Veteran's acne was deep acne and affects body areas other than the face and neck.

The Veteran's acne and pseudofolliculitis barbae has been rated by analogy as "acne" and "dermatitis or eczema" under 38 C.F.R. § 4.118, DC 7828-7806. VA is precluded from considering the same symptomatology associated with these service-connected disabilities when rating the service-connected skin disability because to do so would constitute pyramiding of compensation. 38 C.F.R. § 4.14.  DC 7806 offers a higher rating as it is evaluated under the General Rating Formula for the Skin. Under this formula, a maximum schedular rating of 60 percent is warranted when at least one of the following is present (1) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (2) constant or near-constant systemic therapy including, but not limited to, cortic
.118, DC 7828-7806. VA is precluded from considering the same symptomatology associated with these service-connected disabilities when rating the service-connected skin disability because to do so would constitute pyramiding of compensation. 38 C.F.R. § 4.14.  DC 7806 offers a higher rating as it is evaluated under the General Rating Formula for the Skin. Under this formula, a maximum schedular rating of 60 percent is warranted when at least one of the following is present (1) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (2) constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. 

Pursuant to DC 7806, the Veteran's acne and pseudofolliculitis barbae warrant the already assigned 60 percent rating due to his constant use of immunosuppressive drugs. The maximum rating available for dermatitis or eczema under DC 7806 is 60 percent. Therefore, entitlement to a rating in excess of 60 percent for scarring of the head and neck due to acne and pseudofolliculitis, to include acne of the back is not warranted.

4. Entitlement to a compensable rating for scar, right flank.

During the period at issue, the Veteran was most recently given a VA examination for his scar in January 2024. Here, the examiner noted the Veteran's right flank scar to be linear with some curvature, residual to lung surgery. The Veteran's right flank scar was not found to be painful or unstable and measured 30 cm. by 1 cm. or 30 sq. cm. The examiner listed the Veteran's right flank scar of the posterior trunk to have no underlying tissue damage.

The Veteran's scar is rated under DC 7802 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. Under DC 7802, a 10 percent rating is warranted for a scar that covers an area or areas of 144 square inches (929 sq. cm.) or greater. The Veteran's scar may also be separately rated under DC 7804, which applies to unstable or painful scars. Under DC 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. Note 1 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of the skin over the scar. Note 2 provides if one or more scars are both unstable and painful, VA is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars.

The Veteran's right flank scar does not cover an area of 144 square inches (929 sq. cm.) or greater, nor is it painful or unstable. Thus, a compensable rating is not warranted under DCs 7802 or 7804.

 

 

TANYA SMITH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Ruiz, 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.