Citation Nr: 18155967 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-50 981 DATE: December 6, 2018 ORDER An initial compensable evaluation for surgical scars, right ankle, prior to May 8, 2017 is denied. REMANDED Entitlement to an evaluation in excess of 20 percent from May 8, 2017 for surgical scars, right ankle and right shoulder, is remanded. FINDINGS OF FACT Prior to May 8, 2017, the Veteran’s right ankle scars were not painful or unstable and did not measure 929 square centimeters (144 square inches) or greater. CONCLUSION OF LAW Prior to May 8, 2017, the criteria for an initial compensable evaluation for surgical scars, right ankle, were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.6, 4.7, 4.118, Diagnostic Codes 7802, 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In the Veteran’s appeal to the Board of Veterans’ Appeals (Board), the Veteran requested an initial compensable evaluation for surgical scars, right ankle, and a hearing with the Board. The Veteran has since expressed to VA in writing the intention to withdrawal the requested Board hearing. Since the withdrawal request was received prior to the scheduled hearing date, the Board finds that the hearing request has been withdrawn. 38 C.F.R. § 20.704(e). An initial compensable evaluation for surgical scars, right ankle. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran contends that the initial evaluations for right ankle scars are inadequate. The Board concludes that the preponderance of evidence is against an initial compensable evaluation for surgical scars, right ankle. The evidence shows that prior to May 8, 2017, the Veteran’s scars, right ankle, were not painful or unstable. 38 C.F.R. § 4.118, Diagnostic Code 7804. Additionally, the scars did not measure 929 square centimeters (144 square inches) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802. In a September 2016 rating decision, the Veteran was awarded a noncompensable (0 percent) evaluation for surgical scars, right ankle, under Diagnostic Code 7805. 38 C.F.R. § 4.118, Diagnostic Code 7805. During the pendency of the Veteran’s appeal the regulations pertaining to the evaluation of skin disabilities were amended. See 83 Fed. Reg. 152, 38663 (Aug. 7, 2018). However, the August 2018 amendment did change the rating criteria for Diagnostic Codes 7800-7805. Under Diagnostic Code 7805, other or linear scars are evaluated by any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 under an appropriate diagnostic code. Diagnostic Codes 7802 and 7804 are the only codes applicable to the Veteran’s linear scars of the right ankle not associated with underlying soft tissue damage. Under Diagnostic Code 7802, scars not of the head, face, or neck and not associated with underlying soft tissue damage with an area of 144 square inches (929 sq. cm.) or greater warrant a 10 percent evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7802. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation; three or four scars that are unstable or painful warrant a 20 percent evaluation; and five or more scars that are unstable or painful warrant a 30 percent evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7804. Private medical records from 2015 indicate well healed surgical scars of the right ankle. The scars measured an area less than 929 sq. cm. and were not noted as painful or unstable. Report of examinations dated in January 2016 and August 2016 for scars, right ankle, reflect scars not associated with underlying soft tissue damage with an area less than 929 sq. cm. that are not painful or unstable. Report of examination dated June 2017 for scars, right ankle, reflects two scars that are painful with shooting pain on palpation, and two scars that are unstable with intermittent bleeding from the scar area. The scars measured an area less than 929 sq. cm. The Board finds the evidence is against an initial compensable evaluation for surgical scars, right ankle. The evidence shows no right ankle scars that are painful or unstable until the June 2017 examination. 38 C.F.R. § 4.118, Diagnostic Code 7804. Additionally, the right ankle scars did not measure at least 929 sq. cm.at any point during the appeal. 38 C.F.R. § 4.118, Diagnostic Code 7802. Moreover, there is no basis to assign an initial compensable evaluation under any other schedular criteria. 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7801. Accordingly, the claim for an initial compensable evaluation for surgical scars, right ankle, is denied. As the evidence is not in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND Entitlement to an evaluation in excess of 20 percent as of May 8, 2017 for surgical scars, right ankle and right shoulder. Rating decision dated in June 2017 granted a 10 percent increased evaluation for surgical scars, right ankle; and combined that evaluation with the 10 percent evaluation for surgical scars, right shoulder. Thus, the Veteran’s surgical scars, right ankle and right shoulder, were evaluated at 20 percent, as of May 8, 2017, under Diagnostic Code 7804 for three or more scars that are painful or unstable. However, a supplemental statement of the case was not issued informing the Veteran of the material changes to the statement of the case dated in September 2016. Additionally, the evidence shows right ankle surgery was performed in June 2018. However, there is no examination indicating the severity of the right ankle scars following surgery. Accordingly, the Board finds that remand is necessary for a VA examination to determine the current severity of surgical scars, right ankle, and for the issuance of a supplemental statement of the case. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right ankle scars. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (Continued on the next page)   2. Then, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the case is returned to the Board for further appellate action. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Thaddaeus J. Cox, Associate Counsel