Citation Nr: 0007482 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 95-10 114 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE 1. Entitlement to a rating greater than 10 percent for disfiguring scars of the face and head due to a service- connected wound with multiple lacerations of the face and head, and history of mild concussion. 2. Entitlement to a rating greater than 10 percent for symptomatic scars of the face and head due to a service- connected wound with multiple lacerations of the face and head, and history of mild concussion. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The veteran served on active duty from November 1955 to January 1959. This matter comes to the Board of Veterans Appeals (Board) on appeal from a January 1994 rating decision of the Department of Veterans Affairs (VA) regional office (RO) in Winston- Salem, North Carolina, that denied the veteran's claim for a compensable evaluation for a service-connected wound with multiple lacerations of the face and head, and history of mild concussion. This matter was previously before the Board in January 1997 at which time it was remanded to the RO for further evidentiary development. In a rating decision in July 1997, the RO assigned a 10 percent rating for scarring that was tender and painful on objective demonstration. This matter was also before the Board in July 1998 at which time the case was again remanded to the RO for further evidentiary development. In a RO rating decision in October 1999, the RO assigned a separate 10 percent rating for disfiguring scars of the head and face. The RO further assigned a separate noncompensable rating for limitation of function of the left eyebrow. The Board has separated and recharacterized the issue as noted on the title page of this decision to reflect the RO rating decisions of July 1997and October 1999. FINDINGS OF FACT 1. The veteran's facial and head scars are no more than moderately disfiguring. 2. The veteran's facial and head scars are not poorly nourished, with repeated ulceration. 3. The veteran's facial and head scars are tender and painful at times. 4. The veteran's facial scars produce mild functional loss of the left eyebrow. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for disfiguring scars of the head and scalp have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.118, Diagnostic Code 7800 (1999). 2. The criteria for a rating in excess of the currently assigned 10 percent rating for symptomatic scarring of the face and head have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804, 7805 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran's service medical records show that he was admitted to a U.S. Naval Hospital in May 1956 following an automobile accident. Findings at that time revealed several lacerations of the face and head with no nerve or artery involvement. The lacerations of the face and scalp were sutured and the veteran was placed on bed rest. He was examined by a neurosurgical consultant who found him to be free of central nervous system and peripheral nerve injury. The veteran's sutures were removed approximately four days later and the wounds were noted to be healing without complication. The veteran was discharged approximately two weeks after admission and was given a clinical diagnosis of wound, lacerated, multiple of face and head, no artery or nerve involvement. In May 1957 the veteran presented to a plastic surgery clinic requesting cosmetic surgery to his nose and forehead. In April 1958 the veteran underwent outpatient surgery for his facial scars. The surgery included excision of scars and foreign bodies, and paring and sandpapering of scars. A June 1958 service medical record shows that the veteran's face had improved. At the veteran's separation examination in December 1958, he was noted to have three 1/2 inch scars over his right eye, including on his forehead, and one 1/2 scar over his left eye. He also had a 3/4 inch scar to the right of his mouth, and a 1/2 inch scar to the left of his nose. In a rating decision in April 1971, the RO granted service connection for multiple laceration wounds of the face and head, and assigned a noncompensable evaluation. In June 1993 the veteran sent a note to the Board requesting some "help". The RO interpreted this note as a claim for an increased rating for his service-connected multiple laceration wounds of the face and head. Later, in July 1993, the RO received a letter from the veteran stating his belief that he was entitled to more than what he was receiving. An undated VA treatment record notes that the veteran had scar tissue formation on his forehead with tenderness on palpation, and no inflammation. At a VA examination in September 1993, the veteran was found to have multiple pliable nontender scars of the face and forehead. The skin on his face was otherwise normal. Pictures were taken of the veteran's face revealing scarring above and below the left eye and on the forehead. The veteran was diagnosed as having multiple scars and changes of the face and forehead that were best depicted in the close-up photographs. In a January 1994 rating decision, the RO continued the veteran's noncompensable rating for facial and head scars. At a VA examination for scars in June 1997, the veteran complained of tenderness over multiple scars, especially in the area overlying his left eyebrow. He also complained of numbness on his forehead. One examination he was found to have multiple cross-hatched scars over his left eyebrow. In addition, he had a linear scar over his right eyebrow measuring approximately 6 centimeters in length. There was also a linear scar descending vertically from his right eyebrow which was approximately 4 centimeters in length, and a regularly firm scar located on the left side of the tip of the veteran's nose. In addition, there was a 3 centimeter angulated linear scar on his right cheek. The veteran also had multiple irregular scars scattered about the forehead secondary to the traumatic event as stated above. Regarding a diagnosis, the examiner stated that the veteran's complaints were attributable to the scar including tenderness overlying the scar site, most particularly notable over the left eyebrow and the one on the nose, and numbness of the veteran's forehead. The examiner said that the scars, while obvious on close examination, were not at present disfiguring. He said that in essence, the scars in and of themselves were a source of tenderness and discomfort for the veteran as well as numbness. He said that he had reviewed the veteran's claims file. In a July 1997 rating decision, the RO increased the veteran's service-connected wound with multiple lacerations of the face and head, and history of mild concussion, to 10 percent disabling on the basis that the scarring was tender and painful on objective demonstration. At a VA examination in August 1998, the veteran complained of forehead tenderness. The examiner noted that he had reviewed the veteran's claims file, including service medical records showing plastic surgery in 1958 for several scar removals and foreign body removals from the veteran's forehead and eyebrows. He noted that the veteran's present symptoms included tenderness in multiple scars and numbness on the left side of the forehead. He also noted that the veteran was not using anything to treat the scars at that time. Findings revealed a 2 centimeter linear scar on the veteran's occiput on the right, and a 1.5 centimeter linear scar on the occiput on the left. There was also a 2 centimeter vertical scar on the left eyebrow, and a 1 centimeter vertical scar on the right eyebrow. There were two scars on the tip of the nose, both vertically oriented. The first scar was 1 centimeter in length and the other was 1.5 centimeters in length. There was a 4 centimeter scar on the left forehead. There were two scars on the right forehead - a 1 centimeter scar in the temporal region and a 1.5 centimeter scar over the right eyebrow. The examiner stated that there were significant symptoms particularly with the scars around the veteran's eyebrows, each of which were considerably tender. The veteran also noted tenderness on the scars on the back of his head. The texture of those were atrophic, and there was no ulceration or breakdown of skin. The scars were depressed and not elevated. There was moderate underlying tissue loss on the left eyebrow, and no significant tissue loss on the other scars. The color of the scars compared to normal skin was equivalent. There was significant disfigurement, particularly in the symmetry of the eyebrows related to the scars around the left eyebrow. There was mild limitation of function around the eyebrow scars, particularly the left eyebrow which somewhat limited mobility of that eyebrow. Color photographs were taken of the back of the veteran's head and face. II. Legal Analysis The veteran's claim for increased ratings for scars of the head and face is well grounded meaning plausible. The file shows that the RO has properly developed the evidence, and there is no further VA duty to assist the veteran with his claim. 38 U.S.C.A. § 5107(a) (West 1991). Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The history of the veteran's service-connected residuals of a wound with multiple lacerations of the face and head has been considered, although the present level of disability is of primary concern when determining whether he is entitled to higher ratings. Francisco v. Brown, 7 Vet. App. 55 (1994). The criteria for rating disfiguring scars of the head, face and neck are found under 38 C.F.R. § 4.118, Diagnostic Code 7800. Under this code, a 10 percent rating is warranted for moderately disfiguring scars and a 30 percent rating is warranted for severe scars, especially if producing a marked unsightly deformity of eyelids, lips or auricles. A 50 percent rating is warranted for complete or exceptionally repugnant deformities of one side of face or marked or repugnant bilateral disfigurement. A Note following Code 7800 states that when in addition to tissue loss and cicatrization there is marked discoloration, color contrast, or the like, the 50 percent rating may be increased to 80 percent, the 30 percent to 50 percent, and the 10 percent to 30 percent. For superficial scars that are poorly nourished with repeated ulceration a 10 percent rating is warranted. 38 C.F.R. § 4.118, Diagnostic Code 7803. For superficial scars that are tender and painful on objective demonstration, a 10 percent rating is warranted. 38 C.F.R. § 4.118, Diagnostic Code 7804. For scars that affect limitation of function, such scars are to be rated on limitation of function of part affected. 38 C.F.R. § 4.118, Diagnostic Code 7805. The veteran was shown at the August 1998 VA examination to have a number of scars on his face measuring between 5 millimeters and 4 centimeters in length. They include a scar located in the right occiput area (2 centimeters), one in the left occiput area (1.5 centimeters), one on the left eyebrow (2 centimeters) and one on the right eyebrow (1 centimeter). Additionally, a scar was noted on the right eyelid (5 millimeters), two on the tip of the veteran's nose (1 centimeter and 1.5 centimeters), one on the left forehead (4 centimeters), and two on the right forehead (1 centimeter and 1.5 centimeters). In assessing the degree of disfigurement caused by these scars, the evidence supports the current 10 percent rating for moderate disfigurement. In this regard, a VA examiner in June 1997 stated while the scars were obvious on close examination, they were not at present disfiguring. In contrast, a VA examiner in August 1998 stated that there was significant disfigurement, especially in the symmetry of the veteran's eyebrows related to the scars around the left eyebrow. In other words, the evidence depicts the disfiguring nature of the scars as falling somewhere between not disfiguring as stated by the 1997 VA examiner and significantly disfiguring as stated by the 1998 VA examiner. In short, the scars most approximate the current 10 percent rating for moderate disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800. In regard to an increased rating (to 30 percent) for tissue loss, cicatrization and marked discoloration, color contrast or the like, the evidence pertaining to these scars does not meet this criteria. See Note to Diagnostic Code 7800. In this respect, although the VA examiner in 1998 noted that there was moderate underlying tissue loss on the veteran's left eyebrow (with no tissue loss on the other scars), there was no color contrast. More specifically, the examiner said that that the color of the scars compared to normal skin was equivalent. Since there is no marked discoloration, color contrast or the like with respect to the veteran's facial scars, the criteria for an increased rating (to 30 percent) under Code 7800 for such scars have not been met. Id. In addition to the moderate level of disfigurement caused by the veteran's facial and head scars, these scars must also be considered in view of their symptomatology, i.e., whether the scars are poorly nourished subject to ulcerations, or whether they are tender and painful on objective demonstration. Diagnostic Codes 7803, 7804. Esteban v. Brown, 6 Vet. App. 259, 261-262 (1994). The scars on the veteran's face and head have not been shown to be poorly nourished, with repeated ulceration. In fact, a VA examiner in December 1998 said that there was no ulceration or breakdown of the skin. Thus, the criteria for a separate 10 percent rating under code 7803 have not been met. In regard to tenderness and pain on objective demonstration of these scars, the evidence quite clearly shows tenderness. This is based on the veteran's complaints of scar tenderness, in addition to examination findings. Findings at the 1998 examination showed that the scars around the veteran's eyebrows were considerably tender. Tenderness was also noted by the veteran on the scars on the back of this head. Similarly, the VA examiner in 1997 noted that there was tenderness overlying the scar site, particularly over the left eye. These findings sufficiently approximate a 10 percent rating under Code 7804 for scars that are tender and painful on objective demonstration. A higher than 10 percent rating is not warranted under this code since 10 percent is the maximum evaluation assignable under this code. See AB v. Brown, 6 Vet. App. 35 (1993). Consideration has also been given to a separate rating for limitation of function due to these scars, but a compensable evaluation for such limitation is not warranted by the evidence. In this respect, the VA examiner who conducted the July 1997 examination stated that the veteran's scars should not be causing any significant amount of physical limitation based on their location and appearance. The more recent VA examiner in 1998 stated that there was a mild limitation of function around the eyebrow scars, partially in the left eyebrow which somewhat limited mobility of that eyebrow. These findings showing mild limitation of function of the eyebrows warrant a noncompensable rating under Code 7805, but do not warrant a compensable rating in view of the location and mild nature of this loss. Consideration has been given to 38 C.F.R. § 4.84a, Diagnostic Code 6023, which provides for a 10 percent rating for complete loss of the eyebrows, either unilaterally or bilaterally. However, the evidence in this case as outlined above does not meet this criteria. As the preponderance of the evidence is against the veteran's claim for ratings higher than 10 percent, the benefit of the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A rating in excess of 10 percent for disfiguring scars of the head and face is denied. A rating in excess of 10 percent for a tender and painful scars of the head and face is denied. C.W. Symanski Member, Board of Veterans' Appeals