Citation Nr: 21077572 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 16-52 818 DATE: December 30, 2021 ORDER Prior to August 13, 2021, entitlement to a compensable rating for linear scars of the left lower extremity status post left ankle and lower extremity surgery is denied. From August 13, 2021, entitlement to a rating in excess of 30 percent for linear scars of the left lower extremity status post left ankle and lower extremity surgery is denied. FINDINGS OF FACT 1. Prior to October 27, 2017, the Veteran was shown to have two painful linear scars of the left lower extremity, which were accounted for by a 10 percent rating assigned for "painful surgical scars." 2. From October 27, 2017 to August 13, 2021, the Veteran was shown to have three painful linear scars of the left lower extremity, which were accounted for by a 20 percent rating assigned for "painful surgical scars." 3. From August 13, 2021, the Veteran is shown to have eight painful linear scars of the left lower extremity, which are accounted for by a 30 percent rating assigned for "linear scars." CONCLUSIONS OF LAW 1. Prior to August 13, 2021, the criteria for a compensable rating for left lower extremity linear scars status post left ankle and lower extremity surgery have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code (Code) 7804. 2. From August 13, 2021, the criteria for a rating in excess of 30 percent for left lower extremity linear scars status post left ankle and lower extremity surgery have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Code 7802. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2008 to January 2010. This matter is on appeal before the Board of Veterans Appeals (Board) from a February 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part granted service connection for scars, residuals of surgery status post left ankle and lower extremity surgery, and assigned a noncompensable rating effective May 1, 2014. In November 2018 and June 2021, the appeal was remanded for further development. Also, in June 2021, the Board adjudicated on the merits claims for increased rating for painful surgical scars of the left lower extremity and increased rating for a non-linear scar as a residual of left ankle surgery. Consequently, the Board's current decision is limited to determining whether any increased rating is warranted for the Veteran's left lower extremity "linear" scars. Also, as explained in the analysis below, as the scars defined as "painful" in the ratings assigned by the RO and the Board are also "linear," in considering the remaining appeal for higher rating for "linear scars," the Board is required by the rating criteria to avoid counting the same scar twice when calculating the total number of scars found to be painful during the pertinent time frames within the appeal period. Increased ratings for scars Scarring is generally evaluated pursuant to the criteria found at 38 C.F.R. § 4.118, Diagnostic Codes (Codes) 7800 to 7805. Amendments to the criteria for rating disabilities of the skin were published in July 2018. See Schedule for Rating Disabilities: Skin, 83 Fed. Reg. 32,592 (July 13, 2018). The amendments were made effective as of August 13, 2018, and apply to claims for increase for scarring, such as the Veteran's, that were pending before VA as of that date, with the provision that the more favorable of the old and new criteria are to be applied. The pre-amended Code 7801 provided disability ratings for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear. Note (1) to the pre-amended DC 7801 stated that a deep scar is one associated with underlying soft tissue damage. The amended Code 7801 contemplates burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Code 7801. Both the old and new criteria provide that a 10 percent rating is awarded when the area of the scar(s) covers at least 6 square inches (39 square cm) but less than 12 square inches (77 square cm). A 20 percent rating is warranted when the area of the scar(s) covers at least 12 square inches (77 square cm) but less than 72 square inches (456 square cm). A 30 percent rating is warranted when the area of the scar(s) covers at least 72 square inches (456 square cm) but less than 144 square inches (929 square cm). A 40 percent rating is assigned when the area of the scar(s) covers at least 144 square inches (929 square cm) or greater. 38 C.F.R. § 4.118, DC 7801 Prior to August 13, 2018, Code 7802 provided rating criteria for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear. 38 C.F.R. § 4.118, Code 7802. The amended version is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Code 7802. Both versions state that a 10 percent disability rating is warranted when the area of the scar(s) covers 144 square inches (929 square cm) or greater. Under both the old and new rating criteria, Code 7804 provides disability ratings for scars that are unstable or painful. A 10 percent rating is assigned for one or two such scars. A 20 percent rating is warranted for three to four such scars, and a 30 percent disability rating is assigned for five or more scars. Note (1) states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, an additional 10 percent should be added to the evaluation based on the total number of unstable or painful scars. Note (3) states that scars evaluated under Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Code 7804, when applicable. 38 C.F.R. § 4.118, Code 7804. Under the old rating criteria, Code 7805 provided that other scars (including linear scars and other effects of scars) evaluated under Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Codes 7800-7804 under an appropriate Diagnostic Code. 38 C.F.R. § 4.118, Code 7805. The Board notes that this Code is largely unchanged under the new amendments apart from the replacement of the phrase "(including linear scars)" with "and other effects of scars evaluated under Codes 7800, 7801, 7802, or 7804." 38 C.F.R. § 4.118, Code 7805. Entitlement to a separate compensable rating for linear scars of the left lower extremity status post-surgery prior to August 13, 2021 and to a rating in excess of 30 percent thereafter. At a February 2015 VA left ankle examination, it was noted that the Veteran had had multiple surgical procedures on her left ankle, along with additional surgeries on affected nerves of the left lower extremity. At a separate February 2015 VA scars examination, the examiner noted that the multiple surgical procedures had resulted in multiple residual scars. She was specifically noted to have eight linear scars, including two that were painful. The painful scars were a linear scar located over the lateral aspect of the left ankle, secondary to ligament reconstructive surgery, and a linear scar located in the left popliteal fossa. The examiner found that none of the scars resulted in limitation of function and none were found to be unstable. At an October 2017 VA contract examination, the examiner appeared to identify 8 linear scars. These included 1) a left posterior knee scar, 2) a left calf scar, 3) another left calf scar, 4) a left lateral ankle scar, 5) a left lateral scar, 6) another left lateral ankle scar, 7) an additional left lateral ankle scar, and 8) a lateral lower leg scar. None of the scars were found to be unstable or to result in limitation of function and scars 1, 3 and 5 were found to be painful. At a September 2019 VA contract medical examination, the examiner identified 8 scars of the left lower extremity but did not find that any scars were painful or unstable on examination. The examiner noted that the Veteran had a spinal cord stimulator implant placed due to complex regional pain associated with her scars, which had helped reduce her pain, as on examination, the scars were not tender to palpation. The examiner found that none of the scars were unstable or resulted in any limitation of function. The examiner measured the total area of the linear left lower extremity scars as 36.35 square centimeters (cm). At a January 2020 VA contract left ankle examination, the Veteran was noted to have four scars related to her previous left ankle reconstructive surgeries. The examiner indicated that none of these scars were reported as tender or having other associated symptoms and none were found to be painful or unstable. At a January 2020 VA contract scars examination, the Veteran was noted to have the 4 scars related to ankle ligament/tendon reconstructions and 3 scars from left lower extremity nerve decompression surgeries. Note of the scars were reported as tender and none were found to be painful or unstable. The examiner found that the pain the Veteran previously experienced related to scar tissue was attributable to peripheral neuropathy. The examiner found that the scars did not result in any limitation of function. At an August 13, 2021 VA scars examination, the examiner found that the Veteran had 8 linear left lower extremity scars, all of which were painful and none of which were unstable. The scars were not found to result in any limitation of function. Once again, the rating on appeal is limited to the Veteran's linear scars. None of these scars have been found to be deep or to involve underlying damage to soft tissue. Thus, there is no basis for assigning a rating for them under the initial or amended versions of Codes 7801 and 7802. Additionally, none of the Veteran's scars are shown to cover anywhere near an area of 929 square cm (144 inches) or greater. In this regard, the September 2019 VA contract examiner determined that the total area of all 8 of the Veteran's superficial linear scars was 36.35 square cm and there is no other evidence tending to indicate that the total area of all the Veteran's left lower extremity scars was anywhere near 929 square cm. Moreover, because functional loss, aside from pain, stemming from the scarring (as opposed to the Veteran's service-connected left ankle, left lower extremity posterior tibial neuropathy and left knee) is not shown, there is no basis for assigning a separate rating for any of the scarring in question pursuant to Code 7805. Concerning Code 7804, the Board notes that the Veteran has already been assigned ratings for painful surgical scars of the left lower extremity. In an August 2013 rating decision, the RO granted service connection for residual surgical scars of the left ankle (also referred to in this analysis in short form as "painful scars") and assigned a 10 percent rating effective February 22, 2012 based on a finding that there was one painful surgical scar over the lateral aspect of the left ankle. In the February 2015 rating decision, the RO continued the 10 percent rating for the left ankle surgical scars and also granted service connection for non-linear surgical scar as secondary to service connected left ankle and surgical repair, and for linear surgical scars secondary to service connected left ankle and surgical repair (also referred to in this analysis as "linear scars"). For the linear scars, the RO assigned a noncompensable rating effective May 1, 2014. In a November 2017 rating decision, the RO recharacterized the service-connected surgical scars of the left ankle as "painful surgical scars of the left lower extremity" and increased the rating to 20 percent effective October 27, 2017. This was based on a finding from the October 2017 examination that the Veteran has three left lower extremity painful scars, one on the left posterior knee, one on the left calf and one on the left lateral area. The decision also noted that the earlier February 2015 examination had actually shown the presence of 2 painful linear lower extremity scars but both scars had been appropriately accounted for by the continued 10 percent rating for the left ankle surgical scars prior to October 27, 2017 (i.e. "painful scars), as 10 percent is the appropriate rating under Code 7804 when two painful scars are present. In a September 2020 rating decision, the RO proposed to reduce the rating for the Veteran's painful scars of the left lower extremity from 20 percent to 0 percent. This was based on the findings from the January 2020 VA contract examination indicating that none of the Veteran's scars were painful. Also, in the June 2021 decision, the Board denied a rating in excess of 10 percent for the painful scars prior to October 27, 2017 and a rating in excess of 20 percent thereafter. Additionally, the Board denied a compensable rating for the non-linear scarring. Then, in a July 2021 rating decision, the RO did decrease the rating for the painful surgical scars from 20 percent to 0 percent effective October 1, 2021, based on the January 2020 finding and the lack of any other subsequent evidence to the contrary. Finally, in a September 2021 rating decision, the RO increased the rating for the Veteran's linear scars to 30 percent effective August 13, 2021. This was based on the findings of the August 2021 VA contract examination, which showed the presence of 8 painful linear scars. Notably, the previous Board decision and remand did continue the 10 percent rating for painful surgical scars of the left lower extremity prior to October 27, 2017 and the 20 percent rating for painful surgical scars of the left lower extremity from October 27, 2017 while remanding for further development the separately assigned rating for "linear scars." However, as the above procedural history shows, the Veteran was assigned separate ratings for "painful scars" of the left lower extremity and "linear scars" of the left lower extremity based on the former ones being painful (as well as linear) and thus, entitled to compensable ratings under Code 7804 and the latter ones being non-painful and linear and thus, not entitled to compensable rating under Code 7804. Consequently, even though the Board, in June 2021 rendered a decision in relation to the "painful scars" and remanded for further development the "linear scars," the Board must now consider how many of all the Veteran's linear scars have been found be painful during the pertinent time frames within the entire appeal period in order determine whether any higher rating is warranted for them. This avoids counting the same scar as being twice painful for rating purposes (i.e. counting the same scar as being a "painful scar" and a "linear scar that is painful") for a given time period, which would be impermissible pyramiding (e.g. the evaluation of the same manifestation of disability, in this case the same scar exhibiting pain, under different diagnoses. See 38 C.F.R. § 4.14). Considering the time frames in question, prior to October 27, 2017, the evidence shows that the Veteran had no more than two painful linear scars of the left lower extremity. This warrants a 10 percent rating under Code 7804. Accordingly, there is no basis for assigning a rating in excess of 10 percent under Code 7804 for this time frame, as this rating has already been assigned for the two "painful scars." In this regard, assigning a separate 10 percent rating for these same scars under the label, "linear scars," would amount to impermissible pyramiding. Also, from October 27, 2017 to August 13, 2021, the Veteran is shown to have had no more than three painful linear scars of the left lower extremity. This warrants assignment of a 20 percent rating. Accordingly, there is no basis for assigning a rating in excess of 20 percent for this time frame under Code 7804, as this rating was assigned for the three "painful surgical scars" up until September 30, 2021. Once again, assigning a separate 20 percent rating for these same scars under the label, "linear scars," would amount to impermissible pyramiding. Notably, for the period from August 13, 2021 up until September 30, 2021, the Veteran was assigned a 20 percent rating for "painful scars" and a 30 percent rating for "linear scars," which does appear to have been impermissible pyramiding. However, as these ratings have already been assigned, the Board will not disturb them. From August 13, 2021, the Veteran has already been assigned a 30 percent rating for linear scaring of the left lower extremity based on all 8 of his "linear" surgical scars having been found painful at the August 13, 2021 VA contract examination. Notably, 30 percent is the highest available rating under Code 7804. Accordingly, the Board has no basis for assigning any higher rating and cannot assign any separate rating for "painful scars" as this would amount to impermissible pyramiding (i.e. all the Veteran's painful linear scars of the left lower extremity are accounted for by this 30 percent rating for "linear scars"). The Board notes that there appears to be a bit of a discrepancy in examination reports in that some examinations showed 7 linear scars, and some showed 8. However, as indicated in the analysis above, there is no discrepancy in how many scars have been found to be painful during the pertinent time frames in question. Accordingly, the evidence of record is adequate for determining the appropriate assignable ratings during the appeal period. In sum, considering all time frames in question, the Board can find no basis in the evaluation criteria for assigning a compensable rating for linear scars prior to August 13, 2021 or a rating in excess of 30 percent for linear scars from August 13, 2021. Accordingly, the instant appeal must be denied. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dan Brook, 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.