Citation Nr: 21000686 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 13-08 978 DATE: January 5, 2021 ORDER An initial rating of 30 percent, but no higher, for colonic diverticulum surgery residuals is granted. An initial rating in excess of 10 percent for right ankle degenerative arthritis is denied. An initial compensable rating for sinusitis is denied. An initial rating in excess of 10 percent for bilateral plantar fasciitis is denied. An initial rating of 10 percent, but no higher, for an abdominal scar is granted. FINDINGS OF FACT 1. The competent and probative evidence is at least in equipoise that the Veteran has severe symptoms of colonic diverticulum, characterized as frequent episodes of bowel disturbance with abdominal distress. 2. The Veteran’s right ankle disability is manifested by pain resulting in moderate limitation of motion. 3. The Veteran’s sinusitis did not manifest with one or two incapacitating episodes per year requiring antibiotic treatment of four to six weeks, or three to six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. 4. The Veteran’s bilateral plantar fasciitis is productive of moderate impairment. 5. The competent and probative evidence is at least in equipoise that the Veteran’s abdominal scar has been painful. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 30 percent for colonic diverticulum are met. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 4.14.3, 4.64.7, 4.9, 4.14, 4.204.21, 4.31, 4.114, Diagnostic Code (DC) 7319. 2. The criteria for an initial rating in excess of 10 percent for a right ankle disability are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5270-5274. 3. The criteria for a compensable initial rating for sinusitis are not met. 38 U.S.C. § 1155 ; 38 C.F.R. §§ 4.1, 4.3, 4.97, Diagnostic Code 6512. 4. The criteria for an initial rating in excess of 10 percent for bilateral plantar fasciitis are not met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.20, 4.71a, DC 5276. 5. The criteria for an initial rating of 10 percent, but no higher, for an abdominal scar are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§4.3, 4.118, DCs 7800-7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from February 1986 to September 2009. This matter is before the Board of Veterans’ Appeals (Board) on appeal from January 2010 and March 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).   These matters were remanded Board in August 2017 for additional development. They have now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran was scheduled for and underwent examinations for his remanded claims, updated treatment records were obtained, and a rating decision granted his claim for service connection for his obstructive sleep apnea. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, 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. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. Where there is noncompensable limitation of motion, a 10 percent evaluation is assigned for each major joint or group of minor joints, where the limitation is objectively confirmed by swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is no limitation of motion, a 10 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, and a 20 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003, Note (1). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). However, a veteran may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes “additional functional loss i.e., ‘the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance’ including as due to pain and/or other factors” or “reduction of a joint’s normal excursion of movement in different planes, including changes in the joint’s range of movement, strength, fatigability, or coordination.” Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). The intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. “The question of whether a particular medical issue is beyond the competence of a layperson—including both claimants and Board members—must be determined on a case-by-case basis.” Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring). In this case, the Board is competent to observe that voluntary range of motion testing is going to be more favorable to the Veteran than involuntary range of motion testing. In DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1592 (32nd ed. 2012), range of motion redirects the reader to “exercise.” Passive exercise “is motion imparted to a segment of the body by another individual, machine, or other outside force, or produced by voluntary effort of another segment of the patient’s own body.” Id. at 658. Active exercise is “motion imparted to a part by voluntary contraction and relaxation of muscles controlling the part.” It is reasonable from these definitions to conclude that active motion is the more difficult of the two types of motion to perform because it is done without assistance from external forces, which would be capable of pushing the Veteran’s joint farther than he would be able to move it on his own. Therefore, active motion is more favorable to the Veteran, and the results of active motion testing were provided. Similarly, it is reasonable to conclude that non-weightbearing motion is less difficult than weightbearing motion. The competent evidence of record does not tend to indicate that the structural integrity of the Veteran’s service-connected joints is compromised, such that passive range of motion in this case would be more limited than active, and because testing in weight-bearing conditions is more demonstrative of the degree of pathology, the Board finds that the failure to test for limitation of motion on passive range of motion and in non-weight-bearing is not prejudicial. The Board will therefore evaluate the Veteran’s range of motion using the available findings of active range of motion and looking at all the relevant medical and lay evidence. It is acknowledged some of the examiners did not provide an estimated loss of motion during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, the Board finds that additional development for this purpose or for obtaining retrospective opinions would serve only to delay the claim. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). As noted below, the examination reports contain evidence regarding the frequency, severity, and duration of the Veteran’s pain level during flare-ups per her report. The Board finds such information pertinent and useful when evaluating the disability picture concerning the Veteran’s service-connected disabilities. As such, the Board finds that it has adequate competent evidence when viewed in total to assess the Veteran’s disability picture. Additionally, to the extent that words such as “moderate,” and “severe” are not defined in the Rating Schedule, VA must evaluate all evidence, to the end that decisions will be equitable and just rather than applying a mechanical formula. 38 C.F.R. § 4.6. The Board turns to a dictionary to define these terms. In this regard, moderate is generally defined as “tending toward the mean or average amount.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 798 (11th ed. 2003). Severe is generally defined as “of a great degree” or “serious.” Id. at 1140. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). 1. Entitlement to an initial rating in excess of 10 percent for colonic diverticulum surgery residuals. The Veteran is rated at 10 percent disabling for his colonic diverticulum under DC 7319. Under diagnostic code 7319, which evaluates irritable colon syndrome (spastic colitis, mucous colitis, etc.), a noncompensable rating is warranted for a disability picture that is mild with disturbances of bowel function with occasional episodes of abdominal distress. 38 C.F.R. § 4.114a. A 10 percent rating is assigned for moderate disability with frequent episodes of bowel disturbance with abdominal distress. Id. A 30 percent rating is warranted for severe disability with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. Id. The Veteran underwent an examination in December 2009. It was reported that his stool was loose due his dietary fiber intake. He had one to two loose stools per day with considerably urgent bowel movement calls. It was reported that the Veteran had not been diagnosed with colitis other than what had been reported. He underwent an examination in June 2019. The Veteran took continuous (Benefiber) medication for his colonic diverticulum. He had not had symptom episodes, attacks or exacerbations; no weight loss; and no malnutrition or other complications or general health effects. However, another portion (for intestinal surgery) reported diarrhea/loose stool that was attributed to his disability which would occur twice a week. In his notice of disagreement, the Veteran asserted that he has symptoms of diarrhea and constipation that alternate with constant abdominal pain. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board finds no reason to doubt his credibility on this matter; therefore, the Board finds his evidence in this regard to be credible and entitled to probative weight. After review of the competent and probative evidence, and when resolving reasonable doubt in favor of the Veteran, the Board finds the evidence is at least in equipoise that the Veteran’s disability manifests with severe symptoms of alternating diarrhea and constipation with more or less constant abdominal distress. The credible medical evidence shows loose stools at least twice a week. Additionally, the Veteran has competently and credibly asserted that he has alternating symptoms of constipation and diarrhea and has abdominal pain. As such, the Board finds that an initial rating of 30 percent is warranted under DC 7319 which is the highest available rating under the assigned rating. 2. Entitlement to an initial rating in excess of 10 percent for right ankle degenerative arthritis. The Veteran is rated at 10 percent disabling for his right ankle degenerative arthritis under DC 5271-5003. Under Diagnostic Code 5271, a 10 percent rating is warranted where there is moderate limitation of motion of the ankle, and a 20 percent rating is warranted where there is marked limitation of motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. While the schedule of ratings does not provide any information as to what manifestations constitute “moderate” or “marked” limitation of ankle motion, guidance can be found in VA’s proposed rule titled “Schedule for Rating Disabilities; Musculoskeletal System and Muscle Injuries.” 82 Fed. Reg. 35,719 (Aug. 1, 2017). Here, VA proposes to amend DC 5271 to define marked limitation of motion as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. VA also proposes to define moderate limitation of motion as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. VA states that the change is intended as a clarification of current policy and would ensure consistent application of these criteria among rating personnel. Id. at 35,723; see also Final Rule, 85 Fed. Reg. 76453 (Nov. 30, 2020) (amending 38 C.F.R. § 4.71a, DC 5271 to include specific range of motion measurements per the proposed rule (not effective until Feb. 7, 2021)). The Board may consider such as a factor when looking at the totality of the Veteran’s left ankle disability picture. Ankle disabilities can be rated under Diagnostic Codes 5270 (ankylosis of the ankle); 5272 (ankylosis of the subastragalar or tarsal joint); 5273 (malunion of os calcis or astragalus); and 5274 (astragalectomy). 38 C.F.R. § 4.71a, DCs 5270-5274. The Veteran underwent an examination in December 2009. For his right ankle, prior arthroscopic surgery was reported, and loose bodies were removed. He had a history of partial synovectomy. He did not have pain at rest or during ordinary activities. Mild degenerative arthritic changes were shown. He had pain with longer walks (greater than a mile) or prolonged standing (greater than an hour). His ankle would occasionally rollover. He did not have further weakness, stiffness, deformity, instability, giving way, locking, lack of endurance, effusion, dislocation or subluxation. He did not have inflammation. He did not report flare-ups at the time. He had dorsiflexion of 20 degrees and plantar flexion of 45 degrees. Inversion and eversion were normal. He did not have pain at rest or on range of motion. He did not have loss of joint function with use due to pain, weakness, fatigue, lack of endurance, or incoordination on repetitive movement. He underwent an examination in June 2019. The Veteran reported flare-ups for his ankle with extensive walking. His pain was normally 3 out of ten on a good day and four to five on a bad day. His functional loss was soreness unless he turned his ankle. His range of motion was normal and without pain; he did not have pain with weight bearing, localized tenderness/pain on palpation, or objective crepitus. He was able to perform three times repetitive use testing with no additional loss of function or range of motion. He was examined immediately after repetitive use and pain significantly limited functional ability. His dorsiflexion was 16 degrees, and plantar flexion was 36 degrees. Concerning flare-ups, the examiner found that the examination was medically consistent with Veteran’s statements describing functional loss during flare-ups. Pain significantly limited functional ability with flare-ups. His range of motion was 16 degrees for dorsiflexion and 36 degrees for plantar flexion. He did not have ankylosis. Joint instability/dislocation was suspected, but he did not have laxity compared with the opposite side for the anterior drawer test or talar tilt test. He did not have “shin splints,” stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or a talectomy (astragalectomy). The Veteran stated he had pain with weight bearing and active range of motion, but not in non-weight bearing or with passive range of motion. For his functional ability, his gait was steady without assistive devices. He could rise from sitting to standing without difficulty. In the notice of disagreement, the Veteran has asserted he has pain on walking and standing. He limps.   After reviewing the competent and probative medical and lay evidence, the Board finds that an initial rating in excess of 10 percent for the right ankle is not warranted. The Veteran has had dorsiflexion of at least 16 degrees during flare-ups or after repetitive use (5 degrees for higher rating), and plantar flexion of at least 36 degrees during flare-ups or after repetitive use (10 degrees for higher rating) during the period on appeal. He did not have pain on passive range of motion testing or in non-weight bearing. As such, the preponderance of the evidence is against an initial rating in excess of 10 percent. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A higher rating under DC 5003 is not warranted as the Veteran has not had incapacitating episodes. Additionally, separate and/or higher ratings are not warranted under Diagnostic Codes 5270, 5272, 5273, or 5274 because the weight of the competent and probative evidence is against a finding of ankylosis, malunion of os calcis or astragalus, or astragalectomy. For example, the VA examination reports, as discussed above, did not reflect ankylosis of the ankle or any other diagnosis. Lastly, the weight of the evidence does not support a finding that the Veteran’s disability picture due to functional loss/limitations or flare-ups with limitation of motion is more nearly approximated by a higher rating. Considering the Deluca and Mitchell factors, and the evidence of record, the Board finds that the current 10 percent rating already contemplates and compensates the Veteran for any functional loss due to pain in the ankle, to include pain and limited motion. Deluca, 8 Vet. App. at 204-07. For example, as noted above, the medical reports reflect that he had some pain as well as increased pain during extensive walking. In light of the foregoing, the Board finds that an increased rating due to functional impairment would not be appropriate under the criteria for 38 C.F.R. §§ 4.40 and 4.45.   3. Entitlement to an initial compensable rating for sinusitis. The Veteran is rated noncompensable for his sinusitis under DC 6512. Diagnostic Code 6512 pertains to chronic frontal sinusitis, which is rated to the General Rating Formula for Sinusitis (General Rating Formula). Under the General Rating Formula, a noncompensable (0 percent) rating is warranted for sinusitis detected by X-ray only. A 10 percent rating is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97. A 30 percent rating is warranted for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Id. A 50 percent (maximum) rating is warranted for chronic sinusitis following radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain, and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. Id. The Veteran underwent an examination in December 2009. He reported recurrent problems with nasal congestion and intermittent pressure that would occur three to four times per year. Flare-ups were worse in the spring. His examinations (eardrums, nose, and throat) were normal. The examiner diagnosed him with allergic rhinitis, recurrent sinusitis, but he did not require antibiotic therapy, and they were non-debilitating. He did not have nasal obstruction or nasal polyps. In March 2015, he participated in an examination for his sinusitis. Chronic sinusitis and allergic rhinitis were both reported. His ethmoid and maxillary sinuses were affected. He had two non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months. However, he had no incapacitating episodes. The examiner, who had performed the 2009 examination, found the Veteran’s disability to mild. The Veteran reported that it had not worsened since 2009. He underwent an examination in June 2019. For his sinusitis, he remained “plugged,” even after his septoplasty surgery in 2017. His sinuses were not currently affected, and he did not have any findings, signs, or symptoms attributable to chronic sinusitis. He had no non-incapacitating episodes or incapacitating episodes in the past 12 months. The June 2019 x-rays did not show sinusitis. His nasal congestion in 2017 required the use of Afrin to breath. A nasal septoplasty was performed in May 2017. After review of the competent and probative evidence, the Board finds that an initial compensable rating is not warranted. The Veteran has had no more than two non-incapacitating episodes during the period on appeal as reported at the March 2015 examination. The Board acknowledges the Veteran’s symptoms of “feeling plugged up” as well as Spring flare-ups. However, the record does not show any incapacitating episodes, antibiotic treatment, or three non-incapacitating episodes with headaches, pain, and purulent discharge or crusting. Rather, the probative evidence from the examination reports shows normal eardrums, nose and throat, and the 2009/2015 examiner found the Veteran’s symptoms to be mild. The 2019 examination’s x-rays did not show sinusitis or other symptoms attributable to sinusitis. Based on the foregoing competent and probative evidence, the Board finds that the preponderance of the evidence is against an initial compensable rating for chronic sinusitis. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.10.   4. Entitlement to an initial rating in excess of 10 percent for bilateral plantar fasciitis. The Veteran is rated at 10 percent disabling for his bilateral plantar fasciitis under DC 5276. The Veteran’s bilateral plantar fasciitis has been rated by analogy to acquired flatfoot. Under the rating code for acquired flatfoot, a noncompensable rating is warranted for acquired flatfoot that is mild in severity, which is relieved by built-up shoe or arch support. A 10 percent rating is warranted for moderate flatfoot with symptoms of the weight-bearing line falling over or medial to the great toe, inward bowing of the tendo Achillis, pain on manipulation and use of the feet, whether presented bilaterally or unilaterally. A 30 percent evaluation is warranted for severe bilateral flatfoot with symptoms of objective evidence of marked deformity (pronation, abduction, etc.), pain accentuated on manipulation and use, indication of swelling on use, and characteristic callosities. A 50 percent rating is warranted for pronounced bilateral flatfoot with symptoms of marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation, which are not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Code 5276. The Veteran underwent an examination for his plantar fasciitis in January 2012. He used over the counter shoe inserts with minimal relief. His feet would hurt when standing for long periods. He had left second toe hammertoe. He did not have weak foot. The examiner reported tenderness under his right arch. Abnormal gait and limping were noted. He had small plantar calcaneal spurs on his left foot. He underwent an examination in June 2019. He reported bilateral foot pain of four out of ten on a good day and six on a bad day. It was worse when he was inactive. He reported flare-ups with walking and inactivity. His functional loss/impairment was with weight bearing and walking. While he had pain on use of feet bilaterally, it was not accentuated on use, and he did not have pain on manipulation of his feet, swelling on use, or characteristic callouses. No response was reported for the effects of arch supports, built-up shoes, or orthotics. He did not have extreme tenderness of plantar surfaces, decreased longitudinal arch height on weight-bearing, objective evidence of marked deformity; or marked pronation. His weight-bearing line did not fall over or medial to the great toe; and he did not have inward bowing of the achilles tendon; or, marked inward displacement and severe spasms of the Achilles tendon on manipulation. For functional loss, it was significantly limited during flare-ups and repeatedly over a period of time. Pain on non and weight-bearing as well as disturbance of locomotion was documented bilaterally. The Veteran has submitted private medical records for his bilateral plantar fasciitis. In February 2011, he had pain in both heels that was dull and achy with occasional sharp shooting sensations. It had been worsening. He had pain with weight bearing, with shoe gear, and on ambulation. He did not have pain in non-weight bearing situations. His pain worsened the longer he was on his feet. Pain on palpation was noted. He had tried inserts, cortisone shots, and a boot. Later, padding was reported to have helped, and he was fitted for orthotics. After review of the competent and probative evidence, the Board finds that the evidence does not warrant an initial rating in excess of 10 percent for the Veteran’s bilateral plantar fasciitis. The evidence shows some tenderness as well as pain when initially walking or walking for extended periods in addition to flare-ups. The Board acknowledges his limitation of motion during flare-ups and over a period of time. However, he has not had pain on manipulation of his feet, marked deformity, swelling on use, or characteristic callosities which would show a severe disability. Additionally, as reported at the 2019 examination, he did not have extreme tenderness of plantar surfaces, decreased longitudinal arch height on weight-bearing; or marked pronation. The Board is mindful that the evaluation is by analogy, so that every symptom need not be present to receive a higher rating. However, the private treatment records show that the Veteran has at least partial relief from his symptoms with the use of inserts and orthotics, and there is no evidence of swelling. The Board also finds that a pain level of 4 to 6 out of 10 would seemingly equate to moderate rather than severe. Given these factors, the Veteran’s overall symptomatology more nearly approximates that of a moderate disability than a severe disability, which merits continuation of the 10 percent disability for bilateral plantar fasciitis. 38 C.F.R. §§ 4.20, 4.71a, Code 5276. Lastly, the weight of the evidence does not support a finding that the Veteran’s disability picture due to functional loss/limitations or flare-ups with limitation of motion is more nearly approximated by a higher rating. Considering the Deluca and Mitchell factors, and the evidence of record, the Board finds that the current 10 percent rating already contemplates and compensate the Veteran for any functional loss due to pain in the feet, to include pain and limited motion. Deluca, 8 Vet. App. at 204-07. For example, as noted above, the medical reports reflect that he had pain and limitation of motion. In light of the foregoing, the Board finds that an increased rating due to functional impairment would not be appropriate under the criteria for 38 C.F.R. §§ 4.40 and 4.45. 5. Entitlement to an initial compensable rating for an abdominal scar. The Veteran receives a noncompensable rating for his abdominal scar under DC 7802. During the pendency of this appeal, the applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were substantively amended. When regulations are revised during the course of an appeal, the Board is generally required to consider the claim in light of both the former and revised schedular criteria and to apply the regulation more favorable to the Veteran. The new rating criteria, however, may be applied only prospectively from the effective date of the change forward, unless the regulatory change specifically permits retroactive application. VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (emphasis added). The Board has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). Thus, the Board has considered all applicable criteria in evaluating the Veteran’s claims. The pertinent skin regulations are as follows. October 23, 2008 to August 13, 2018 Diagnostic Code 7800 provides for burn scars of the head, face or neck, scars of the head, face or neck due to other causes, or other disfigurement of the head, face, or neck. The particular criteria set out under Diagnostic Code 7800 provide for a 10 percent rating with one characteristic of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800. Under the DC 7801, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear are evaluated as: area or areas of 144 square inches (929 sq. cm) or greater (40 percent); area or areas of at least 72 square inches (465 sq. cm) but less than 144 square inches (929 sq. cm) (30 percent); area or areas of at least 12 square inches (77 sq. cm) but less than 72 square inches (465 sq. cm) (20 percent); and area or areas of at least 6 square inches (39 sq. cm) but less than 12 square inches (77 sq. cm) (10 percent). Under the DC 7802, scars not of the head, face or neck, which are superficial and nonlinear are granted a 10 percent rating if they cover an area of 144 square inches or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2017). Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent rating. A 20 percent rating requires three or four scars that are unstable or painful. A 30 percent rating requires five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an additional rating under Diagnostic Code 7804, when applicable. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2017). Under the Diagnostic Code 7805, any disabling effects of other scars (including linear scars), and other effects of scars rated under Diagnostic Codes 7800, 7801, 7802, and 7804 not considered in a rating provided under Diagnostic Codes 7800-7804 are to be rated under an appropriate Diagnostic Code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2017). Under Diagnostic Code 7806, a 10 percent disability rating is warranted when at least 5 percent, but less than 20 percent of the entire body, or at least 5 percent but less than 20 percent, of exposed areas affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period. Id. at DC 7806. August 13, 2018 onward Effective August 13, 2018, VA amended its regulations governing skin disabilities. VA’s intent is that claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 13, 2018). DC 7800 remained the same. DC 7801 was amended to remove “deep and nonlinear scars” which was replaced with “underlying soft tissue damage.” Diagnostic Code 7802 was amended to remove “superficial and nonlinear” and was replaced with “not associated with underlying soft tissue damage.” Note (1) now provides that for purposes of DCs 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Note (2) changed to a separate evaluation may be assigned for each affected zone of the body. Combine the separate evaluations under § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. Diagnostic Codes 7804 and 7805 were unaffected by the 2018 recent revisions. The Veteran underwent an examination in December 2009. His abdominal scar was 10 centimeters long. It was nontender and nonadherent. There was no skin breakdown, it was narrow and not deep. He underwent an examination in June 2019. His abdominal scar was 13 by 1.5 centimeters. It did not result in limitation of function or motion. It was reported as not painful or unstable, or greater than 39 square centimeters in his intestinal examination. The Veteran has asserted his abdominal scar was painful and tender to the touch. He is competent to report that his scar is painful. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board finds no reason to doubt his credibility on this matter; therefore, the Board finds his evidence in this regard to be credible and entitled to probative weight. After review of the competent and probative evidence, the Board finds that a rating of 10 percent is warranted under DC 7804. The Veteran has competently and credibility asserted that his scar is painful. The Board acknowledges the examination reports showing that the Veteran’s scar was not painful. However, when resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise that the Veteran’s scar is painful. A higher rating is not warranted as there are not three or more scars that are painful or unstable. Regarding other possible ratings during the period on appeal, a compensable rating under DC 7802 is not warranted as the Veteran does not have scars of at least 144 square inches. Moreover, he does not have burn scars or scars of the head, face or neck, and a compensable rating under DC 7800 (old and current criteria) is not warranted. Nor does the Veteran have scars of at least six square inches, and a rating under DC 7801 is not warranted. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Garrett Morales, Associate Counsel 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.