Citation Nr: 1753352 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 14-09 340 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for an orthopedic right foot disability. 2. Entitlement to a compensable disability rating for scarring. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1982 to June 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona made January 2012 and July 2012. The Board notes that the Veteran originally only perfected an appeal of entitlement to a compensable disability rating for scars on the right foot. Nevertheless, the Veteran testified at a personal hearing before the Board on November 2016, and the Veteran indicated that he had also intended to appeal his disability rating from his orthopedic disabilities of his right foot as well. As such, the Board took jurisdiction over that issue and accepted testimony on it. See Transcript. The Board notes that the Veteran also indicated that he also attempted to appeal the issue of entitlement to an increased rating claim for an orthopedic left foot disability, but it was clarified at his hearing that such an issue was not on appeal at this time. Id. FINDINGS OF FACT 1. The Veteran has been assigned a disability rating of 30 percent for an orthopedic right foot disability and a combined disability rating of 50 percent for his orthopedic bilateral feet disabilities, and the schedular rating criteria does not provide an basis for a disability rating in excess of 30 percent for an orthopedic right foot disability or a disability rating in excess of 50 percent for any orthopedic bilateral feet disabilities. 2. The Veteran's scarring has not manifested in a total square area in excess of 12 square inches (77 square centimeters) or any unstable or painful scars. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for an orthopedic right foot disability have not been met. 38 U.S.C. §1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5276-5284 (2017). 2. The criteria for compensable disability rating for scarring have not been met. 38 U.S.C. §1155 (2012); 38 C.F.R. § 4.118, Diagnostic Codes 7800-7802, 7804 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA treatment records, and private treatment records have been obtained. Additionally, the Veteran testified at a personal hearing before the Board, and a transcript of the hearing is of record. The Veteran was also provided with several VA examinations and neither the Veteran nor his representative has objected to the adequacy of any of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). There is no prejudice to the Veteran in adjudicating this appeal, because VA's duties to notify and assist have been met. Increased Disability Rating The Veteran contends that he is entitled to multiple increased disability ratings. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation 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. 38 C.F.R. § 4.7. Orthopedic Right Foot Disability At issue is whether the Veteran is entitled to a disability rating in excess of 30 percent for an orthopedic right foot disability. As a matter of law, the Veteran is not entitled to an increased disability rating. The Veteran first filed for service connection for an orthopedic right foot disability in June 1993, and, in September 1993, he was granted service connection and assigned a disability rating of 10 percent effective the date the day after separation from service. The Veteran's disability rating was subsequently increased to 30 percent. The Veteran filed an increased rating claim in October 2010, and, in January 2012, the RO denied the Veteran's increased rating claim. The Veteran filed a notice of disagreement in response to a separate July 2012 rating decision. At a personal hearing before the Board, the Veteran reported that it had been his intention in filing this notice of disagreement to appeal his disability rating for his orthopedic right foot disability as well, and the Board took jurisdiction of the issue. See Transcript. Disability ratings for orthopedic foot disabilities are assigned pursuant to Diagnostic Codes 5276-5284. Diagnostic Codes 5277 and 5279-5284 do not provide an adequate basis for an increased disability rating, because the maximum disability rating under these disability codes is 30 percent or less; and the Veteran has already been assigned a disability rating of 30 percent. Diagnostic Codes 5276 and 5278 do provide for a disability rating of 50 percent, but these diagnostic codes require the Veteran to manifest bilateral feet conditions. The Veteran has been assigned a staged disability rating during the period on appeal for an orthopedic left foot disability of 20 percent prior to January 25, 2017 and 10 percent thereafter. Therefore, the Veteran's current combined evaluation for his previously service-connected bilateral orthopedic feet disabilities at least 50 percent disabling. 38 C.F.R. §§ 4.25, 4.26. As such, there are no remaining diagnostic codes to provide a basis for an increased rating claim. Therefore as a matter of law, the Veteran's claim for a disability rating in excess of 30 percent for a right foot disability is denied. 38 C.F.R. § 4.71a. Scarring At issue is whether the Veteran is entitled to a compensable disability rating for scars of the right foot. The weight of the evidence indicates that the Veteran is not. The Veteran did not file a claim for service connection for scarring, but, in July 2012, the RO found that a claim for a disability rating for scarring of the right foot was within the scope of the Veteran's other claims for his orthopedic right foot disability; and the RO granted service connection and assigned a noncompensable disability rating effective the date of an examination which established that the Veteran had scars on his right foot. The Veteran appealed the noncompensable rating. Subsequently, the Veteran was granted service connection for scarring on his left foot as well. The Board has taken these symptoms into consideration in order to provide the Veteran the best chance to be provided a compensable disability rating for his previously service-connected scarring, because evaluations for scarring is based on the number of scars and the total surface area of scarring. Disability ratings for scars are assigned pursuant to Diagnostic Codes 7800, 7801, 7802, and 7804. Diagnostic Code 7800 does not provide a basis for an increased disability rating, because this Diagnostic Code requires scars or disfigurement of the head, face, or neck. 38 C.F.R. § 4.118. Under Diagnostic Code 7801, a disability rating of 10 percent is assigned when scarring manifests in deep nonlinear scarring in an area or areas of at least six square inches (39 square centimeters) but less than 12 square inches (77 square centimeters), and a disability rating when scarring manifests in deep nonlinear scarring in an area or areas of at least 12 square inches (77 square centimeters) but less than 72 square inches (465 square centimeters). A disability rating of 30 percent is assigned when scarring manifests in deep nonlinear scarring in an area or areas of at least 72 square inches (465 square centimeters) but less than 144 square inches (929 square centimeters), and a disability rating of 40 percent is assigned when scarring manifests in deep nonlinear scarring in an area or areas of at least 144 square inches (929 square centimeters). 38 C.F.R. § 4.118, Diagnostic Code 7801. Under Diagnostic Code 7802, a disability rating of 10 percent is assigned when scarring manifests in superficial nonlinear scarring in an area or areas of at least 144 square inches (929 square centimeters). 38 C.F.R. § 4.118, Diagnostic Code 7802. Under Diagnostic Code 7804, a disability rating of 10 percent is assigned for one or two painful unstable scars, and a disability rating of 20 percent is assigned for three or four painful unstable scars. Finally, a disability rating of 30 percent is assigned for five or more scars. 38 C.F.R. § 4.118, Diagnostic Code 7804. The Veteran's treatment records during the period on appeal indicate that he had well-healed scarring on both of his feet from his foot surgery. The Veteran underwent a VA examination in November 2010. He observed superficial linear stable nontender scars on the Veteran's right foot with a total surface area of 2.3 square centimeters. The Veteran testified at a personal hearing before the Board in November 2016, but did not provide any pertinent information about the severity of the scarring on his feet. See Transcript. The Veteran underwent another VA examination in January 2017. The examiner observed a nontender scars on both of the Veteran's feet with a total surface area of 5.19 square centimeters. The Veteran is not entitled to a compensable disability rating for his previously service-connected foot scarring. The Veteran is not entitled to a compensable disability rating under Diagnostic Code 7801 or 7802, because the total surface area of the Veteran's scarring is well below the threshold of the surface area of scarring required for a minimum compensable disability rating under either of these diagnostic codes. The Veteran is not entitled to a compensable disability rating under Diagnostic Code 7804, because the medical evidence of record does not establish that the Veteran has painful or unstable scarring. As such, the criteria for a compensable disability rating for scarring is denied. (CONTINUED ON NEXT PAGE) ORDER A disability rating in excess of 30 percent for an orthopedic right foot disability is denied. A compensable disability rating for scarring is denied. ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs