Citation Nr: 1808471	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  16-46 705	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in Denver, Colorado


THE ISSUES

1. Entitlement to an initial rating in excess of ten percent for superficial nerve injury, left foot status post ("s/p") laceration with tendon injury (claimed as bayonet wound left foot).

2. Entitlement to an initial compensable rating for scar s/p laceration of left foot with tendon injury.


ATTORNEY FOR THE BOARD

J. Wozniak, Associate Counsel







INTRODUCTION

The Veteran served in the U.S. Marine Corps from September 1956 to September 1959.

This matter came before the Board of Veterans' Appeals (Board) on appeal from June 2016 rating decision.

Pursuant to VA's duties to notify and assist the Veteran, VA advised the claimant how to substantiate an application for benefits, obtained all relevant and available evidence and conducted any appropriate medical inquiry. The appeal is ready for appellate review. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1. During the period on appeal, the Veteran's superficial nerve injury, s/p laceration with tendon injury (claimed as bayonet wound left foot) has been shown to be manifested by no more than mild numbness and decreased sensation with no pain, weakness, fatigability, incoordination.

2. During the period on appeal, the scar s/p laceration of left foot with tendon injury has been shown to be manifested by no more than a scar that is non-tender, linear, non-adherent, and measures 3cm by 0.3cm (0.9 square centimeters).


CONCLUSIONS OF LAW

1. The criteria for a rating in excess of ten percent for superficial nerve injury, left foot s/p laceration with tendon injury (claimed as bayonet wound left foot) have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8521 (2016).

2. The criteria for an initial compensable rating for scar s/p laceration of left foot with tendon injury have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.85, 4.118, Diagnostic Code 7801 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2016). Diagnostic Code 8521, pertaining to paralysis of the external popliteal nerve (common peroneal), provides for a 10 percent rating for mild incomplete paralysis; a 20 percent rating for moderate incomplete paralysis; a 30 percent rating for severe incomplete paralysis; and a 40 percent rating for complete paralysis with foot drop and slight droop of the first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost, abduction of foot lost, adduction weakened, anesthesia covers entire dorsum of the foot and toes. 38 C.F.R. § 4.124a, Diagnostic Code 8521 (2017).

Under Diagnostic Code 7801, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear are rated as follows: for an area or areas of 144 square inches (929 sq. cm.) or greater a 40 percent rating is assigned; for an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.), a 30 percent rating is warranted; for an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) a 20 percent rating is warranted; for an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) a 10 percent rating is warranted. 

There are also two relevant note provisions associated with Diagnostic Code 7801.

Note (1): A deep scar is one associated with underlying soft tissue damage. 

Note (2): If multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under § 4.25. Qualifying scars are scars that are nonlinear, deep, and are not located on the head, face, or neck.

Diagnostic Code 7804 is applicable when scars are unstable or painful. Under Diagnostic Code 7804 a 10 percent rating is warranted when there are one or two scars that are unstable or painful. A 20 percent rating is warranted when there are three or four scars that are unstable or painful. A 30 percent rating is warranted when there are five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Codes 7804.

Diagnostic Code 7804 includes three note provisions:

Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 

Note (2): If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. 

Note (3): Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59.

Where there is a question as to which of two disability evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. 

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of, or overlapping with, the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 

In October 2015 and February 2016 lay statements the Veteran indicated that he was stabbed in the foot with a bayonet while serving in Korea. 

In March 2016, the Veteran was afforded a VA foot examination. The Veteran reported that he was stabbed in the foot with a bayonet in 1958 and required tendon surgery. The Veteran indicated that since the surgery he has experienced numbness in his left foot, particularly after sitting for an extended period of time. The examiner noted mild injury and numbness to the top of the left foot but noted no pain, weakness, fatigability, or incoordination. The examiner reported a scar measuring 3cm by 0.1cm. The examiner noted no additional injury or functional loss to the Veteran's left foot and opined the injury has "almost no current manifestations, except for mild numbness." 

In March 2016, the Veteran was afforded a VA peripheral nerve examination. The examiner noted a diagnosis of superficial nerve injury to the left foot and reported no pain or paresthesias and/or dysesthesias with mild numbness. The Veteran's gait, muscle strength, deep tendon reflexes were all normal with decreased sensation in the foot and toes. The examiner noted a faint, non-tender, linear, non-adherent scar measuring 3cm by 0.3cm. The examiner concluded the Veteran's foot numbness involves the superficial sensory nerves and does not involve a specific nerve root. 

In an April 2016 medical opinion the Veteran's tendon repair was noted to be in excellent condition. The examiner noted numbness of the toes in the left foot. In June 2016 the Veteran indicated that his left foot condition was unchanged since his March 2016 VA examination. 

In the Veteran's July 2016 notice of disagreement (NOD), he indicated that his left foot injury has caused a permanent limp, protruding veins, and has affected his mobility.

The Veteran's September 2016 VA Form 9 indicates that he experiences loss of feeling in his entire leg, collapsed veins, and an inability to run and stand. The Veteran also stated that he has lived for 50 years with numbness, pain, and discomfort from his injuries. 

During the period on appeal, the Veteran's superficial nerve injury, left foot s/p laceration with tendon injury (claimed as bayonet wound left foot) has been shown to be manifested by no more than mild numbness and decreased sensation with no pain, weakness, fatigability, incoordination.

Given these facts, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent under Diagnostic Code 8521 for superficial nerve injury, left foot s/p laceration with tendon injury (claimed as bayonet wound left foot). A 20 percent rating is not warranted under Diagnostic Code 8521 because the Veteran does not have moderate incomplete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code(s) 8521. In making this determination, the Board has considered, along with the schedular criteria, the Veteran's functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45 (2015); DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995).

During the period on appeal, the scar s/p laceration of left foot with tendon injury has been shown to be manifested by no more than a scar that is non-tender, linear, non-adherent, and measures 3cm by 0.3cm (0.9 square centimeters).

Given these facts, the Board finds that a rating in excess of 0 percent is not warranted under Diagnostic Codes 7801 and 7804 for scar s/p laceration of left foot with tendon injury. A 10 percent rating is not warranted under Diagnostic Code 7801 because the Veteran's scar does not measure at least 39 square centimeters. A 10 percent rating is not warranted under Diagnostic Code 7804 because the Veteran's scar is not unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code(s) 7801, 7804.


ORDER

An initial rating in excess of 10 percent for superficial nerve injury, left foot s/p laceration with tendon injury (claimed as bayonet wound left foot) is denied.

An initial compensable rating for scar s/p laceration of left foot with tendon injury is denied.




____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs