Citation Nr: 21075507 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 18-40 416 DATE: December 20, 2021 ORDER Entitlement to a rating in excess of 10 percent for right foot scar is denied. FINDING OF FACT The Veteran's scar on the right foot manifested as occasionally painful, at most, but not unstable. CONCLUSION OF LAW The criteria for an entitlement to a rating in excess of 10 percent for right foot scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code (Code) 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1974 to May 1977. This matter comes before the Board of Veterans' Appeals (Board) from a June 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in August 2021, and a transcript of that hearing is of record. During the pendency of the appeal, an August 2018 rating decision assigned a higher rating of 10 percent rating for the right foot scar pursuant to Diagnostic Code 7804, effective November 1, 2015. As this increase does not represent a total grant of benefits sought on appeal, the claim for increased rating in excess of 10 percent remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist or with the conduct of her Board hearing. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is a balance of positive and negative evidence regarding any material issue, the benefit of the doubt shall be given to the claimant. See 38 U.S.C. § 5107 (b). Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. See 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting its decisions, there is no requirement that the Board discuss every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claim. A disability rating is determined by the application of VA's 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran seeks a higher rating for her service-connected scar condition. She claims that her scar is painful upon movement/pressure. She described this scar as tender/3-inches and testified that it throbs/hurts when she wears any closed/tight shoes. She further stated that she cannot go out in dress/pump shoes, and that if she does, she needs to take those off after about 15 minutes as the scar gets tender due to compression. When asked whether the scar gets irritated, turns red and/or is not fully healed, she said it might get a little red in the area of compression when wearing tight shoes, but denied any bleeding other irritation/indication of scar being not having fully healed. When asked of worsening, she said she is uncertain as she essentially wears flip flops to avoid any pain. The Veteran is currently in receipt of a 10 percent rating, effective November 1, 2015, under Diagnostic Code (DC) 7804. Pertinent regulations were provided in an August 2018 statement of the case (SOC) and will not be repeated in full here. While the Veteran has not undergone a VA examination specific to scars, she did undergo VA examinations for her foot condition in April 2016 and in May 2017, which included information relevant to the scar. During the April 2016 VA foot examination, no pain was noted on examination, but she was noted to have intermittent tenderness over the scar. The examiner at the time described the Veteran's scar as 5.5 cm x 0.5 cm, located in the right medial aspect of 1st metatarsophalangeal joint. There was no indication of that scar being painful and unstable. During the May 2017 VA foot examination, the Veteran reported pain and tenderness to the outer right area of the foot, after running/performing exercise in military issued boots. Her scar was noted to be located in the right greater toe lateral region, with a dimension of 6 cm x 0.25 cm. There was no indication of that scar being painful or unstable. Her treatment records only show a healed scar noted on proximal phalanx of hallux right foot, without any evidence suggestive of the nature of this scar. See August 2017 VA treatment records. After reviewing all pertinent records, the Board concludes that a rating in excess of 10 percent for the Veteran's scar is not warranted at any time during the appeal period. There is no evidence of any frequent loss of covering of the scar, and the Veteran herself denied any irritation/skin being not fully healed, but reported only pain when wearing tight/closed shoes, with skin possibly turning red on the area of compression. Even taking into consideration her report of pain, such complaints are fully compensated for by the current 10 percent rating, and there is neither objective nor subjective evidence suggestive of her having any unstable scar(s) consisting of three or more scars, which would entitle her to a rating in excess of 10 percent. The Board has also considered the applicability of other potentially applicable diagnostic criteria for rating the Veteran's scar, but finds that a higher rating is not assignable under any other diagnostic code. DC 7800, 7801 and 7802 are not applicable. The VA examinations of record do not reflect that the Veteran's scar results in any limitation of motion or loss of function, so a higher rating is not warranted under DC 7805. The Board notes the Veteran already has a separate 10 percent rating for the right hallux valgus, and the current appeal concerns the scar which is a residual of the surgical procedure done for the bunion. If she believes the hallux valgus itself has worsened, as opposed to the scar, she is advised to file a claim for an increased rating, as she was advised during her Board hearing. In her notice of disagreement to the 2017 rating decision, she did not dispute the rating for the hallux valgus, but only the scar, so the Board does not have jurisdiction over that separate rating. In sum, the Board finds the criteria for an increased rating greater than 10 percent for the entire period on appeal have not been met. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against this claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee, Catherine 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.