Citation Nr: 20002013 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 14-26 743 DATE: January 9, 2020 ORDER A higher initial 40 percent evaluation for surgical scars of the right leg is granted, subject to the statutes and regulations governing the payment of compensation. FINDING OF FACT The Veteran has five surgical scars on his right leg that are unstable and painful. CONCLUSION OF LAW The criteria are met for a 40 percent rating, but no higher, for the surgical scars on the Veteran’s right leg. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code (DC/Code) 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1973 to February 1975. This matter originated from an April 2015 rating decision. In an October 2016 decision, the Board, in part, denied an increased rating for the surgical scars on the Veteran’s right leg. He appealed that denial of this claim to the higher United States Court of Appeals for Veterans Claims (Court/CAVC). The Court issued a Memorandum Decision in January 2018 vacating the Board’s October 2016 decision denying this claim and remanding the case back to the Board for disposition consistent with the Court’s Order. A September 2018 Board decision granted a higher 30 percent initial rating for the surgical scars on the Veteran’s right leg. He again appealed to the Court, which in a July 2019 Memorandum Decision vacated the Board’s September 2018 decision to the extent it had denied an even higher rating and remanded the matter to the Board for readjudication consistent with the instructions outlined in the Court’s Memorandum Decision. An even higher 40 percent initial rating is granted for the surgical scars on the Veteran’s right leg Disability evaluations are determined by the application of a schedule of ratings (Rating Schedule), which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where, as here, the appeal is from the initial rating assigned with an award of service connection, the severity of the disability during the entire period from the award of service connection to the present, and the possibility of “staged” ratings for distinct periods of time when varying degrees of disability were shown, must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for such rating. Otherwise, the lower rating is assigned 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran’s favor. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3.   Scars are evaluated under 38 C.F.R. § 4.118, Codes 7800 through 7805. Code 7800 applies to scars of the head, face, and neck. Code 7801 applies to scars, not of the head, face, or neck that are deep and nonlinear. A 10 percent rating is assigned for an area or areas of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). A 20 percent rating is assigned for an area or areas of at least 12 square inches (77 square centimeters) but less than 72 square inches (465 square centimeters). A 30 percent rating is assigned for an area or areas of at least 72 square inches (465 square centimeters) but less than 144 square inches (929 square centimeters). And a 40 percent rating is assigned for an area or areas of at least 144 square inches (929 square centimeters). Note 1 provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Code 7801. Code 7802 (for superficial and nonlinear scars not of the head, face, or neck) provides for a 10 percent rating for scars with an area or areas of at least 144 square inches (929 square cm). Note 1 provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Code 7802. Code 7804 (for scars that are unstable or painful) provides for a 10 percent rating for one or two qualifying scars, a 20 percent rating for three or four qualifying scars, and a 30 percent rating for five or more qualifying scars. Note 1 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Code 7804. Note 2 provides that 10 percent may be added to the evaluation if one or more scars are both unstable and painful. Under Code 7805, any disabling effect(s) not considered in a rating under Codes 7800-04 are to be rated under an appropriate Code. 38 C.F.R. § 4.118, Code 7805.   On November 2012 VA scars examination, four post-operative scars were identified. The first was on the lateral side of the right foot below the lateral malleolus and was 10 cm long. The second was lateral to the medial malleolus and was 7.5 cm long. The third was on the posterior aspect of the ankle and lower leg and was 4.5 cm long. The fourth was on the posterior lateral side of the heel and was 10.5 cm long. The examiner indicated the scars were linear and not painful or unstable. He also indicated they were not productive of functional limitation. On December 2012 VA ankle examination, the examiner identified five surgical scars on the Veteran’s right leg. The examiner explained that “[t]he length and width of the scar is (1) 10x0.2 lateral side of right foot below the lateral malleolus, (2) across medial malleolus 7.5x0.8, (3) lateral to medial malleolus 4.5x0.3, (4) Achilles tendon repair, 10.5x0.3, [and] (5) lateral side of the ankle 10.5x0.3.” On March 2015 VA scars examination, the examiner again observed the surgical scars on the Veteran’s right leg. The examiner noted that the first scar was on the medial foot/ankle and measured 7.2 cm. The second scar was on the anterior dorsal right foot/ankle and measured 2.7 cm. The Third scar was on the right lateral foot and measured 7.5 cm. The fourth scar was on the right Achilles and measured 10 cm. All the scars were identified as linear and none were painful or unstable. In his May 2015 Notice of Disagreement (NOD), the Veteran maintained that he had five or more scars that were unstable and at times painful. This discrepancy primarily has been the reason for denying any greater rating. Initially, the Board points out that Codes 7800 and 7802 do not apply to ratings for these leg scars. Code 7800 applies to scars of the head, face, and neck, so not the leg, and Code 7802 provides for a 10 percent (maximum) rating for superficial and nonlinear scars with an area of 144 square inches (929 square cm) or greater, which the Veteran does not have to this required extent.   But resolving all reasonable doubt in his favor, the Board finds that a higher 40 percent initial rating, though no greater, is warranted for these several right leg scars under Diagnostic Code 7804 because there are five in total and they are painful and unstable. The Veteran is competent to state whether his scars are painful and whether they are manifested by frequent loss of covering of the skin over the scar (i.e., unstable), as these are symptoms observable by even a layman. Also, significantly, although the VA examiners did not find the Veteran’s scars to be painful or unstable, the Veteran’s competent and credible reports weigh equally against their findings. Therefore, the Board finds that an initial 40 percent rating is warranted based on an initial 30 percent rating for five scars that are painful or unstable with 10 percent added since the Veteran’s credible lay testimony reflects that the scars are both painful and unstable. See Diagnostic Code 7804. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Poindexter The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.