Citation Nr: 1335142 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 03-12 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial compensable disability rating for the residuals of a corn and the removal of a spur of the right foot, prior to January 10, 2012. 2. Entitlement to a disability rating in excess of 10 percent for the residuals of a corn and the removal of a spur of the right foot, from January 10, 2012. 3. Entitlement to an initial compensable disability rating for a scar of the left breast, prior to January 10, 2012. 4. Entitlement to a disability rating in excess of 10 percent for a scar of the left prior, from January 10, 2012. ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant had active service from August 1986 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2001 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Waco, Texas, that granted service connection for sinusitis, the residuals of a corn and spur removal of the right foot, and a scar of the left breast. The RO assigned each of these disabilities a noncompensable disability rating, effective August 6, 2001, from which the appellant has appealed. The RO also denied service connection for a psychiatric disorder and a left knee disorder. During the course of the appeal, the appellant relocated to Puerto Rico, and the claims file was transferred to the custody of the RO in San Juan, the Commonwealth of Puerto Rico, which is now the agency of original jurisdiction. In a rating action issued in December 2010, the RO awarded service connection for the claimed left knee disability. As such, that matter is no longer on appeal. Following a review of the claim, the Board issued a Decision/Remand in December 2011. In that action, the Board denied the appellant's claim for entitlement to a compensable disability rating for sinusitis. The other three issues (service connection for a psychiatric disorder and increased evaluations for a scar of the breast and the residuals of a corn and spur removal of the right foot) were remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. The purpose of remand was to obtain additional medical evidence and to reevaluate whether service connection and increased ratings could be granted. After obtaining the requested medical evidence, the AMC granted service connection for a psychiatric disorder, effective August 6, 2001. Because this is a full grant of benefits, this issue is no longer before the Board on appeal. The AMC also, in the same rating action of August 2012, awarded 10 percent disability ratings for a scar of the left breast and the residuals of corn and spur removal of the right foot. The effective date of the award was January 10, 2012. Because such ratings were not the maximum benefit allowed by law and regulation, these issues remain in controversy in accordance with AB v. Brown, 6 Vet. App. 35, 38 (1993). Upon reviewing the development since December 2011, the Board finds there has been substantial compliance with its remand instructions with respect to the appellant's increased ratings claim. In this regard, the United States Court of Appeals for Veterans Claims, hereinafter the Court, has noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 14-7 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order "). The AMC was tasked by the Board to obtain additional medical evidence with respect to the appellant's claim, and it has done so. Specifically, the AMC was asked to obtain an examination of the appellant and was also asked to obtain any additional medical records that had not previously been located within the claims folder, which it has done. The results of that request have been included in the claims folder for review. The results were returned to the AMC which, in turn, issued a Supplemental Statement of the Case in response to the information obtained. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of the Board's most recent remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). Thus, the Board will proceed to review and decide the claim based on the evidence that is of record. FINDINGS OF FACT 1. The scar from the residuals of the removal of a corn and a spur of the right foot is productive of pain but, no adherence, no underlying loss of tissue under the scar, no ulceration or breakdown of the skin, no disfigurement, minimal limitation of function by the scar, no inflammation, edema, or keloid formation, and the texture of the scar is smooth and flat. 2. The scar of the left breast is not tender, adherent, or ulcerative. There is no underlying loss of tissue under either scar, but the appellant believes that the scar makes her breast disfiguring. The scar is also productive of occasional pain; yet, there is no limitation of function by the scar, no inflammation, edema, or keloid formation. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent disability rating, but no higher, from the date of claim, for the residuals of a corn removal and the removal of a spur of the right foot, have been met. 38 U.S.C.A. §§ 1155, (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, Diagnostic Codes 5299-5105 and 5284 (2013). 2. The criteria for an initial 10 percent disability rating, but no higher, from the date of claim, for a scar of the left breast, have been met. 38 U.S.C.A. §§ 1155, (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, Diagnostic Code 7805 (2002, 2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all the evidence in the claims file. Although there is an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. 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). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. 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 appellant). Also, the Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2013). In Dingess/Hartman v Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Additionally, in Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. The Board finds that the AOJ has substantially satisfied the duties to notify and assist, as required by the VCAA. In this matter, the appeal arises from disagreement with the initial disability rating following the grant of service connection for a left breast scar and the residuals of surgeries on the right foot. The Court has held that were the underlying claim for service connection has been granted and there is disagreement as to downstream questions (such as the effective date or the disability rating assigned), the claim has been substantiated and there is no prejudice due to inadequate (or no) notice. Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Federal Circuit has also held that once the underlying service connection claim is granted there is no duty to provide notice under 38 U.S.C.A. § 5103(a). Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting her in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the appellant's service treatment records, as well as post-service reports of VA and private treatment and examinations. Moreover, her statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the appellant's claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The appellant was afforded VA examinations over the course of this appeal, the most recent occurred in January 2012. In all cases, the results from the examinations are of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The examinations and subsequent reports involved a review of the available medical records and the results of actual testing/examining of the appellant. The Board therefore finds that the medical information in toto is adequate for ratings purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, the Board notes that the appellant also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. Such evidence has been considered in deciding the instant appeal. Therefore, the Board will proceed with review of the appellant's claim based upon all relevant evidence. For the foregoing reasons, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the appellant in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the appellant at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the appellant will not be prejudiced as a result of the Board proceeding to the merits of her claim. Laws and Regulations Disability ratings are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2013). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 (2013) requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 (2013) requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.7 (2013) provides that, where there is a question as to which of two disability evaluations shall be applied, the higher disability rating is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. The regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the evaluation of a service-connected disability requires a review of the appellant's medical history with regard to that disorder, the Court has held that, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Id.; Peyton v. Derwinski, 1 Vet. App. 282 (1991); 38 C.F.R. §§ 4.1, 4.2 (2013). The Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 506 (2007). An evaluation of the level of disability present also includes consideration of the functional impairment of the service member's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2013). Residuals of Corn and Spur Removal - Right Foot The appellant has been assigned a noncompensable disability rating prior to January 10, 2012, for the residuals of the removal of a corn and spur removal of the right foot. A 10 percent disability rating has been assigned for the period beginning on January 10, 2012. The appellant's disability has been rated pursuant to the rating criteria found at 38 C.F.R. § 4.71a, Diagnostic Codes 5015 and 5284. The provisions of 38 C.F.R. § 4.40 (2013) state that a disability affecting the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40 (2013). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2013); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, at 592 (1991). Instead, in Mitchell, the Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40 (2013)), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45 (2013)). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Board further notes that the provisions of 38 C.F.R. § 4.40 (2013) and 38 C.F.R. § 4.45 (2013), should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2013). The diagnostic codes used to evaluate the appellant's disability may be found at 38 C.F.R. § 4.71a, Diagnostic Code 5015. Diagnostic Code 5015 indicates that benign new growths of bones - benign bone growths should be rated based on limitation of motion as degenerative arthritis. The diagnostic code for degenerative arthritis provides (1) that compensation may be awarded when limitation of motion meets the schedular criteria for the joint(s) affected and is objectively confirmed, such as by swelling, muscle spasm, or satisfactory evidence of painful motion; (2) that when objectively confirmed limitation of motion is not sufficient to warrant a compensable schedular evaluation, 10 percent is assigned for each major joint or minor joint group affected; (3) and that when there is no limitation of motion, 10 or 20 percent will be assigned depending on the degree of incapacity, if there is X-ray evidence of 2 or more major joints or minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Code 5003; see also Hicks v. Brown, 8 Vet. App. 417, 420 (1995) Diagnostic Code 5283 pertains to malunion or nonunion of the tarsal or metatarsal bones. 38 C.F.R. § 4.124a (2013). Under this diagnostic code, a 10 percent rating is warranted for moderate symptoms; a 20 percent rating is warranted for moderately severe symptoms; a 30 percent rating is warranted for severe symptoms; and a 40 percent rating is warranted for actual loss of use of the foot. The provisions of 38 C.F.R. Part 4, Diagnostic Code 5284 provide disability ratings for other foot injuries. A 10 percent rating is warranted for moderate foot injuries. A 20 percent rating is warranted for moderately severe foot injuries. A 30 percent rating is warranted for severe foot injuries. The Board notes that the term "moderate" is not defined by regulation; however, the overall regulatory scheme contemplates 10 percent ratings in cases of ankylosis in good weight bearing position, or problems so disabling that there is atrophy, disturbed circulation and weakness, or where there is inward bowing of the tendo Achilles with pain on manipulation and use, or definite tenderness under the metatarsal heads, the great toe dorsiflexed, and limitation of dorsiflexion of the ankle. The Board has also considered alternative diagnostic codes that potentially relate to impairment of the feet. However, as explained below, the objective evidence does not reflect bilateral weak foot (Diagnostic Code 5277), claw foot (Diagnostic Code 5278), anterior metatarsalgia (Diagnostic Code 5279), or hammer toe (Diagnostic Code 5282). 38 C.F.R. Part 4 (2013). While the appellant was on active duty, a corn and a bone spur was removed from her right foot. Following her release from active duty, she applied for VA benefits and underwent an examination of her foot. The examination was accomplished in September 2001. Prior to the examination, the appellant told the examiner that she experienced pain in the foot (second toe) when she wore "heels." The described the pain as sharp, nonradiating, and quantified as "8 out of 10." She further indicated that the pain was alleviated by removal of the shoes and rest. The appellant, nor the examiner, did not quantify as to what type of shoe was considered "heels" - a shoe with a one inch heel or a shoe with a four inch heel. The appellant did, however, state that she was not receiving treatment for the disorder, that she was not wearing corrective shoes or appliances, but that she did have to purchase "wide" shoes so that the disorder would not flare-up. Physical examination of the right second toe reveals no evidence of painful motion, edema, instability, or tenderness. There was no gait or functional limitations when standing or walking. Moreover, there were no calluses or unusual shoe wear patterns associated with the disorder, and there were no skin or vascular changes. Range of motion of the second right toe was normal and there were no neurological symptoms or manifestations. A second examination of the foot was accomplished in January 2012. The examiner noted that the disability had not produced any additional disorder of the foot such as pes planus or deformity of the foot/toes or even malunion/nonunion of the metatarsal or tarsal bones. The examiner did indicate that the foot condition was "moderate" in severity but there was no functional limitation caused by the disability. Arthritis was not diagnosed. The examiner noted that there was mild discomfort and tenderness in the right foot at the second toe. The pain was aggravated by prolonged standing and walking. Again, arthritis was not diagnosed nor was any other disorder or disability of the foot/toes. There are no other post-service medical examinations contained in the record that describes the symptoms or manifestations produced by the right foot disorder. It is further noted that the appellant's post-service private and VA medical records that have been compiled since her discharge from service have been obtained and included in the claims for review. These medical records are silent for any complaints or treatment involving the right foot or the toes of the right foot. After considering the medical evidence and the appellant's lay statements, which the Board finds competent, credible, and probative, the Board recognizes that the appellant's right foot condition produces pain and occasional restrictions in her walking ability. Therefore, the Board finds that the symptoms and manifestations presented by the appellant correspond to a 10 percent disability rating under Diagnostic Code 5284. 38 C.F.R. Part 4 (2013). Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board further concludes that the symptoms produced by the foot disability have remained constant throughout the course of this appeal, a staged rating is unjustifiable, and a 10 percent rating from the date of her claim is granted. In order to warrant a disability rating in excess of 10 percent, the evidence must show a moderately severe or severe foot disability. 38 C.F.R. Part 4, Diagnostic Code 5284 (2013). None of the medical evidence, either the medical treatment records or the examinations of the feet, have revealed an objective abnormality of the toes or right foot. Pain has not been shown to affect the range of motion of the toes, and the right foot has demonstrated normal mobility. Although the medical examination reports have indicated that the residuals have produced pain, there has been no weakness, fatigue, or lack of endurance following repetitive use. The Board, as reported above, acknowledges the appellant's statements and assertions that she experiences pain in the area of the right foot where she had the corn and spur removed. While lay witnesses are generally not competent to offer evidence which requires medical knowledge, such as opinions regarding medical causation or a diagnosis, they may provide competent testimony as to visible symptoms and manifestations of a disorder. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Board observes that the appellant has, over the long course of this appeal, described symptomatology indicative of a moderate, but not a moderately severe or severe, foot disability. Her recitation of the symptoms produced by her condition has remained consistent and not contradictory. The Board finds that the Appellant's written and spoken evidence is credible, probative, and it adds weight to the overall claim. See, e.g., Struck v. Brown, 9 Vet. App. 145, 155-156 (1996). Nevertheless, the Board finds that the appellant did not describe symptomatology more nearly approximating a moderately severe or severe foot disability. Significantly, the fact remains that there is no competent medical evidence of record showing that the appellant has met the rating criteria for a disability rating in excess of 10 percent. Moreover, the appellant has never been found to have acquired flatfoot, weak foot, claw foot (pes cavus), Morton's disease, hallux valgus, hallux rigidus, hammer toes, or malunion or nonunion of the tarsal or metatarsal bones secondary to the service-connected foot disability. Therefore, Diagnostic Codes 5276 to 5283 are not for application in this case. 38 C.F.R. Part 4 (2013). Thus, after reviewing the medical evidence of record along with the statements provided by the appellant, it is the conclusion of the Board that the evidence is against a finding of moderately severe impairment, as would warrant a higher rating under Diagnostic Code 5284. 38 C.F.R. Part 4 (2013). Additionally, inasmuch as the appellant's 10 percent rating reflects the highest degree of impairment shown since the date the claim began, there is no basis for a staged rating in the present case. See Hart, supra. Scar - Left Breast Following service, the appellant submitted a claim for benefits involving the removal of a cyst or nodule of the left breast. The removal occurred in service. A VA General Medical Examination was performed in September 2001. Prior to the examination of the breast, the appellant complained about the residual scar on the breast. She said that it was "cosmetically unappealing and creates emotional discomfort for her." Nevertheless, the appellant admitted that there were no symptoms associated with the scar and that there were no limitations to her daily activities related to the scar. Physical examination of the left breast revealed a 2.5 by 1.5 centimeter scar on the left upper quadrant of the breast with irregular borders. The scar was depressed and it was slightly lighter in color compared to the normal areas of the breast. There was no disfigurement of the breast as a result of the scar and the examiner reported no tenderness, adherence, ulceration, or breakdown of the skin. Tissue loss, inflammation, edema, or keloid formation also were not found. Yet, the texture of the scar was uneven and rough. Another examination of the breast occurred as a result of the Board's most recent Decision/Remand taskings. The examination was accomplished in January 2012. When examined, the examiner found that the scar was not "unstable". The limited comments provided by the examiner were as follows: Patient with minimal or moderate pain in her left breast area. Scar is not limiting her motion, not disfiguring, is well healed, no keloids. Additional comments were not provided. A review of the appellant's claims records show that the appellant has submitted additional reports concerning her breasts. That is, during the course of the appeal, the appellant sought service connection for a disability (or growths) of the right breast. A review of these private medical records fails to reveal any complaints involving the left breast. Moreover, the records are silent for any symptoms or manifestations produced by the scar of the left breast. This disability has been rating in accordance with the rating criteria found at 38 C.F.R. Part 4, Diagnostic Code 7805. During the pendency of the appeal, VA's Schedule for Rating Disabilities for scars was amended. By regulatory amendment, effective July 31, 2002, changes were made to the schedular criteria for evaluating skin disabilities, as set forth in 38 C.F.R. §§ 4.118 (2001). See 67 Fed. Reg. 49596- 49599 (2002). When a law or regulation changes after a claim has been filed but before the administrative appeal process has been concluded, VA must apply the regulatory version that is more favorable to the Veteran. See VAOPGCPREC 7-2003 (Nov. 19, 2003) ("[S]tatutes or regulations liberalizing the criteria for entitlement to compensation . . . may be applied to pending claims because their effect would be limited to matters of prospective benefits."); see also Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), overruled in part by Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, where the amended regulations expressly provide an effective date and do not allow for retroactive application, the appellant is not entitled to consideration of the amended regulations prior to the established effective date. Green v. Brown, 10 Vet. App. 111, 116-119 (1997); see also 38 U.S.C.A. § 5110(g) (West 2002) (where compensation is awarded pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue). Under the regulations in effect prior to July 31, 2002, disfiguring scars of the head, face or neck warrant a noncompensable disability rating if the disfigurement is slight or a 10 percent disability rating if the disfigurement is moderate. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2001). Superficial scars warrant a 10 percent disability rating if they are poorly nourished and subject to repeated ulceration or if they are tender and painful on objective demonstration. Scars may also be rated based on limitation of function of the part affected. 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804, and 7805 (2001). The revised Diagnostic Code 7800 provides that disfigurement of the head, face, or neck, where shown by one characteristic of disfigurement warrants a 10 percent rating. Note (1) provides that the eight characteristics of disfigurement are: scar five or more inches (13 or more cm.) in length; scar at least one- quarter inch (0.6 cm.) wide at 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 six square inches (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Note (2) states: Rate tissue loss of the auricle under Diagnostic Code 6207 (loss of auricle) and anatomical loss of the eye under Diagnostic Code 6061 (anatomical loss of both eyes) or Diagnostic Code 6063 (anatomical loss of one eye), as appropriate. Note (3) states to take into consideration unretouched color photographs when evaluating under these criteria. 67 Fed. Reg. 49,596 (July 31, 2002), (to be codified at 38 C.F.R. § 4.118, Diagnostic Code 7800). Under the new criteria, Diagnostic Code 7801 directs that scars other than on the head, face, or neck that are deep or cause limited motion are evaluated as 10 percent disabling for areas exceeding 6 square inches, 20 percent disabling for areas exceeding 12 square inches, 30 percent disabling for areas exceeding 72 square inches, and 40 percent disabling for areas exceeding 144 square inches. Notes following the rating criteria explain (1) scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of the extremities or trunk, will be rated separately and combined in accordance with 38 C.F.R. § 4.25, and (2) a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. Part 4 (2008). Diagnostic Code 7802 provides that scars other than head, face, or neck scars that are superficial and do not cause limited motion will be rated as 10 percent disabling for areas of 144 square inches or greater. Notes following the rating criteria explain (1) scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of the extremities or trunk, will be rated separately and combined in accordance with 38 C.F.R. § 4.25, and (2) a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. Part 4 (2008). Diagnostic Code 7803 notes that unstable superficial scars are evaluated as 10 percent disabling. Note (1) following indicates that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) indicates that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. Part 4 (2008). The next criteria, that of Diagnostic Code 7804, provides that superficial scars that are painful on examination are rated as 10 percent disabling. Note (1) following states that a superficial scar is one not associated with underlying soft tissue damage. Note (2) states that in this case, a 10 percent disability rating will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable disability rating (See 38 C.F.R. § 4.68 of this part on the amputation rule). Finally, Diagnostic Code 7805 directs that other scars shall be rated on the limitation of function of the affected part. 38 C.F.R. Part 4 (2008). Under the former criteria, Diagnostic Code 7803 afforded a 10 percent disability rating for a scar, regardless of measurement, that was superficial, poorly nourished, or characterized by repeated ulceration. Diagnostic Code 7804 awarded 10 percent for a superficial scar that was tender and painful upon objective observations, regardless of measurement. Diagnostic Code 7805 does not differ, directing that other scars be evaluated on the limitation of the function of the part affected. 38 C.F.R. Part 4 (2001). The 2008 changes to the scar rating criteria were specifically limited to claims filed on and after October 23, 2008. In this case, the appellant's claim for an increased disability rating was received by the RO in 2002. She did not subsequently request that her breast scar disability be reviewed under the revised rating criteria of 2008. Accordingly, the revised criteria of 2008 are not applicable in this case and those in effect prior to October 23, 2008, must be applied. To support the appellant's claim, she has suggested that her left breast scar is sometimes painful and discomforting. While the pain may not always be constant, she also sees the scar every time she puts on or takes off her brassiere and she feels as though her breast is disfigured. The Board acknowledges the assertions of the appellant and it is noted that these comments have not been contradictory or inconsistent over the course of this appeal. Thus, it is the decision of the Board that, while the evidence is vague and somewhat nondescriptive, the appellant while be afforded the benefit if said evidence is in equipoise. When, after consideration of all evidence and material of record in a case, there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); see also 38 C.F.R. § 3.102 (2013). In Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." The Court pointed out in Gilbert that under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails. Accordingly, the Board finds that a 10 percent disability rating for this condition should be awarded in accordance with the rating criteria for a painful scar for the entire period of time that this issue has been on appeal. That is, inasmuch as the appellant's 10 percent rating reflects the highest degree of impairment shown since the date the claim began, there is no basis for a staged rating in the present case. See Hart, supra. However, a disability rating in excess of 10 percent is not warranted for any period of time since the claim was submitted. The symptoms and manifestations produced by the scar are not as such that would qualify the disability for a higher rating. The scar does not exceed six square inches and is not shown to limit function of the affected part. This evidence is most probative on whether a rating in excess of 10 percent is warranted as the examiner conducted an examination and set forth sufficient information concerning the disability so the Board can render an informed determination. Because the appellant's breast scar residuals do not meet the rating criteria for higher evaluation, a disability rating in excess of 10 percent may not be assigned. Extraschedular Consideration The Board has also considered whether the appellant is entitled to an extraschedular disability rating. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2013). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether an appellant is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular disability rating does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a appellant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the appellant's disability picture requires the assignment of an extraschedular rating. The evidence in this case does not show such an exceptional disability picture that the available schedular criteria for the service-connected left breast scar or the residuals of surgeries to the right foot are inadequate. A comparison between the level of severity and symptomatology of the appellant's disabilities with the established criteria found in the rating schedule shows that the rating criteria reasonably describes the appellant's disability level and symptomatology, as discussed above. The appellant has been assigned, based on the action above, separate 10 percent disability ratings for each of the disorders for the entire period each issue has been on appeal, and during that time period there is no evidence that there has been any limitation of function of the body parts affected. In short, there is nothing in the record to indicate that the service-connected disabilities (left breast or right foot) on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) (2013) is not warranted. ORDER An initial 10 percent disability rating, but no higher, for the entire period for which the claim has been on appeal, for the residuals of a corn and the removal of a spur of the right foot, is granted, subject to the regulations governing the payment of monetary benefits. An initial 10 percent disability rating, but no higher, for the entire period for which the claim has been on appeal, for a scar of the left breast, is granted, subject to the regulations governing the payment of monetary benefits. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs