Veteranclaims’s Blog

March 7, 2020

Single Judge Application; definition of painful scars; DC 7804; C.F.R. § 4.7; 38 C.F.R. § 4.118; Pain is defined as “a more or less localized sensation of discomfort, distress, or agony, resulting from the stimulation of specialized nerve endings.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1363 (32d ed. 2012);

decision below:

“The appellant also argues that the Board failed to provide adequate reasons or bases because it did not address whether a scar that itches, tingles, and is uncomfortable more nearly approximated the criteria for a 10% disability rating. Appellant’s Br. at 5-7; see 38 C.F.R. § 4.7; see also 38 C.F.R. § 4.118, Diagnostic Code 7804 (2019) (providing that a 10% disability rating is appropriate for “[o]ne or two scars that are unstable or painful”). Additionally, he asserts that the Board’s finding that his scar does not cause pain is conclusory because “discomfort” is included in the medical definition of “pain”1 and “[his] scar does cause discomfort.” Id. at 6-7. The Secretary
1 Pain is defined as “a more or less localized sensation of discomfort, distress, or agony, resulting from the stimulation of specialized nerve endings.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1363 (32d ed. 2012).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-0319
VERNARDO D. BROOKS, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MEREDITH, Judge: The appellant, Vernardo D. Brooks, through counsel appeals an
October 17, 2018, Board of Veterans’ Appeals (Board) decision that denied entitlement to a
compensable rating for a residual right wrist scar. Record (R.) at 3-11. The Board remanded the
matter of entitlement to an initial rating higher than 10% for bilateral pes planus. The remanded
matter is not before the Court. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam
order) (a Board remand “does not represent a final decision over which this Court has
jurisdiction”); Hampton v. Gober, 10 Vet.App. 481, 483 (1997) (claims remanded by the Board
may not be reviewed by the Court). This appeal is timely, and the Court has jurisdiction to review
the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons,
the Court will vacate the Board’s decision denying entitlement to a compensable rating for a
residual right wrist scar and remand the matter for further proceedings consistent with this
decision.
2
I. BACKGROUND
The appellant served on active duty in the U.S. Marine Corps from June 1984 to February

  1. R. at 530. In December 1989, he underwent surgery for the removal of a ganglion cyst on
    his right wrist. R. at 670-71. In a January 2011 VA examination report, the examiner noted that he
    had a non-tender right wrist scar, 2 centimeters long by 0.5 centimeters wide. R. at 1328; see R. at
    1323-33. The appellant underwent another VA examination in January 2012; the examiner noted
    that his residual scar was not painful or unstable. R. at 1816; see R. at 1809-18. In February 2012,
    he filed a claim for disability benefits for an “unstable and painful scar on [his] right wrist.” R. at
    1747; see R. at 1740-58. He underwent a VA examination in May 2012; the examiner diagnosed
    a residual scar and noted that it was 1.2 centimeters long by 0.5 centimeters wide and did not have
    a total area greater than 39 square centimeters. R. at 1641-54. The examiner also reported that his
    scar itched and tingled when he scratched it, was not painful or unstable, and caused no functional
    limitation on his ability to work. R. at 1642-43, 1653-54. In June 2012, a VA regional office (RO)
    granted service connection for a right wrist scar and assigned a noncompensable disability rating,
    effective February 16, 2012. R. at 1516-21, 1621-26. The next month, he underwent a VA
    examination and the wrist examiner noted that the scar was not painful or unstable. R. at 1509.
    The appellant filed a Notice of Disagreement with the rating decision. R. at 1465. After the
    RO continued the noncompensable disability rating, he perfected his appeal, asserting that the scar
    is uncomfortable at times. R. at 743-44, 851-73. He underwent another VA examination in March
    2015; the examiner found that his scar was not painful or unstable. R. at 322-31. He underwent
    VA wrist conditions and scars examinations in June 2017, during which the examiner diagnosed
    tendonitis of the wrist and found that the scar was not painful or unstable and caused no limitation
    of function of the right wrist or functional impact on his ability to work. R. at 108-16, 117-19.
    In October 2018, the Board issued a decision denying entitlement to a compensable rating
    for a residual right wrist scar. R. at 3-11. This appeal followed.
    3
    II. ANALYSIS
    The appellant argues that the Board failed to provide an adequate statement of reasons or
    bases because it did not address favorable evidence consisting of his 2012 claim, in which he
    reported that his scar is painful, or explain whether a scar that itches, tingles, and is uncomfortable
    more closely approximates “painful” or painless, pursuant to 38 C.F.R. § 4.7. Appellant’s Brief
    (Br.) at 3, 4-7. The Secretary disputes these arguments and urges the Court to affirm the Board’s
    decision. Secretary’s Br. at 5-13.
    It is the Board’s responsibility, as factfinder, to determine the credibility and weight to be
    given to the evidence. See Washington v. Nicholson, 19 Vet.App. 362, 369 (2005); Owens v.
    Brown, 7 Vet.App. 429, 433 (1995) (holding that the Board is responsible for assessing the
    credibility and weight of evidence and that the Court may overturn the Board’s decision only if it
    is clearly erroneous). When analyzing lay evidence, if the Board determines that lay evidence is
    competent and credible, it must weigh the evidence against other evidence of record, providing an
    appropriate statement of reasons or bases for its conclusions. See Buchanan v. Nicholson, 451 F.3d
    1331, 1334-37 (Fed. Cir. 2006); Allday v. Brown, 7 Vet.App. 517, 527 (1995) (holding that, with
    any material issue of fact or law, the Board must provide a statement of the reasons or bases for
    its determination “adequate to enable a claimant to understand the precise basis for the Board’s
    decision, as well as to facilitate review in this Court”); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57
    (1990); see also 38 U.S.C. § 7104(d)(1).
    Here, the Board concluded that a compensable disability rating for a residual right wrist
    scar was not warranted. R. at 5. The Board relied on the VA examiners who, between 2012 and
    2017, “determined that the [appellant’s] residual right wrist scar was linear, superficial, was neither
    painful nor unstable, and/or did not cover an area of at least 39 square centimeters,” which was
    required to warrant a higher disability rating. R. at 6 (citing 38 C.F.R. § 4.118, Diagnostic Codes
    7801, 7802, 7804, 7805). Further, the Board found:
    To the extent the [appellant] reported occasional discomfort or itching associated
    with his right wrist scar, it is noteworthy that he does not report that his scar is
    painful or tender. The Board also notes that[,] in addition to the VA examination
    reports, the ongoing clinical evidence is also silent for findings of a painful, tender,
    or unstable right wrist scar, or any limitation of function of the right wrist due to
    scarring such that a compensable rating would be assignable.
    R. at 7. Thus, the Board determined that the preponderance of the evidence was against the claim.
    Id.
    4
    The appellant argues that the Board failed to address his report “that his scar was unstable
    and painful on his original February 2012 VA Form 21-526.” Appellant’s Br. at 4 (citing R. at
    1747). In that regard, the appellant points out that the Board found that he “‘does not report that
    his scar is painful.'” Id. (quoting R. at 7) (emphasis added). The Secretary does not contest that the
    appellant’s original claim, as mentioned above, provides that the name of his disability is “unstable
    and painful scar on right wrist.” R. at 1747. However, the Secretary contends that “the Board is
    presumed to have considered all the record evidence” and any error by the Board in failing to treat
    the appellant’s statement as lay evidence of a painful and unstable scar is not prejudicial because
    it would not have altered the Board’s determination “that the evidence preponderates against the
    claim.” Secretary’s Br. at 11-12.
    The Court agrees with the appellant that the Board erred in concluding that he did not report
    pain, without addressing his 2012 statement or making an appropriate determination regarding the
    appellant’s competence and credibility. See R. at 7 (finding that “[the appellant] does not report
    that his scar is painful or tender”). The Board’s failure to discuss or weigh this statement frustrates
    judicial review. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995) (holding that the Board must
    analyze the credibility and probative value of the material evidence, account for the evidence that
    it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material
    evidence favorable to the claimant), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also
    Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) (“[T]he evaluation and weighing of
    evidence are factual determinations committed to the discretion of the factfinder—in this case, the
    Board.”).
    The appellant also argues that the Board failed to provide adequate reasons or bases because it did not address whether a scar that itches, tingles, and is uncomfortable more nearly approximated the criteria for a 10% disability rating. Appellant’s Br. at 5-7; see 38 C.F.R. § 4.7; see also 38 C.F.R. § 4.118, Diagnostic Code 7804 (2019) (providing that a 10% disability rating is appropriate for “[o]ne or two scars that are unstable or painful”). Additionally, he asserts that the Board’s finding that his scar does not cause pain is conclusory because “discomfort” is included in the medical definition of “pain”1 and “[his] scar does cause discomfort.” Id. at 6-7. The Secretary
    1 Pain is defined as “a more or less localized sensation of discomfort, distress, or agony, resulting from the stimulation of specialized nerve endings.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1363 (32d ed. 2012).

    5
    responds that the Board acknowledged the appellant’s complaints and, when read as a whole, found
    that his symptoms do not more nearly approximate a painful scar. Secretary’s Br. at 7-11.
    As the appellant contends, the Board failed to undertake any analysis regarding whether
    the discomfort caused by his scar equates to “pain” or whether all his scar symptomatology
    together—itching, tingling, and discomfort—more nearly approximates a painful scar. Appellant’s
    Br. at 5-7. Although the Board noted the requirements of § 4.7, it in relevant part limited its analysis
    to whether pain itself was demonstrated by the record. See Buckley v. West, 12 Vet.App. 76, 81
    (1998); see also 38 U.S.C. § 7104(d)(1); Allday, 7 Vet.App. at 527; Gilbert, 1 Vet.App. at 56-57.
    On remand, the appellant is free to submit additional evidence and argument on the
    remanded matter, including the specific arguments raised here on appeal, and the Board is required
    to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534
    (2002) (stating that, on remand, the Board must consider additional evidence and argument in
    assessing entitlement to the benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73
    (1999) (per curiam order). The Court reminds the Board that “[a] remand is meant to entail a
    critical examination of the justification for the decision,” Fletcher v. Derwinski, 1 Vet.App. 394,
    397 (1991), and the Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112.
    III. CONCLUSION
    After consideration of the parties’ pleadings and a review of the record, the Board’s
    October 17, 2018, decision denying entitlement to a compensable rating for a residual right wrist
    scar is VACATED and the matter is REMANDED for further proceedings consistent with this
    decision.
    DATED: March 6, 2020
    Copies to:
    Glenn R. Bergmann, Esq.
    VA General Counsel (027)

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