Citation Nr: 21006208 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-01 125 DATE: February 3, 2021 ORDER A 20 percent rating is granted for residuals of a T7 compression fracture (hereinafter, “thoracic spine disability”) from September 8, 2010 to March 10, 2019, subject to the law and regulations governing the award of monetary benefits. A rating in excess of 20 percent for thoracic spine disability is denied. A 20 percent rating is granted for sciatic radiculopathy of the right lower extremity from March 11, 2019 to February 18, 2020, subject to the law and regulations governing the award of monetary benefits. A 20 percent rating is granted for sciatic radiculopathy of the left lower extremity from March 11, 2019 February 18, 2020, subject to the law and regulations governing the award of monetary benefits. A rating in excess of 20 percent for sciatic radiculopathy of the right lower extremity is denied. A rating in excess of 20 percent for sciatic radiculopathy of the left lower extremity is denied. A compensable rating for residual scar, status post left arm abrasion with history of second-degree burns, is denied. FINDINGS OF FACT 1. From September 8, 2010 to March 10, 2019, it is at least as likely as not that the Veteran’s thoracic spine disability was manifested by forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees. 2. The weight of the evidence is against a finding that the Veteran’s thoracic spine disability has been manifested by forward flexion limited to 30 degrees or less at any time during the pendency of his claim, even when taking into account his complaints of pain; there is no evidence of associated neurologic impairment other than sciatic radiculopathy of the lower extremities, and no evidence of ankylosis or incapacitating episodes as defined by VA regulation. 3. From March 11, 2019 to February 18, 2020, the sciatic radiculopathy of the Veteran’s right lower extremity more nearly approximated than not the criteria of moderate incomplete paralysis. 4. From March 11, 2019 to February 18, 2020, the sciatic radiculopathy of the Veteran’s left lower extremity more nearly approximated than not the criteria of moderate incomplete paralysis. 5. The weight of the evidence is against a finding that the sciatic radiculopathy of the Veteran’s right lower extremity has been manifested by moderately severe incomplete paralysis. 6. The weight of the evidence is against a finding that the sciatic radiculopathy of the Veteran’s left lower extremity has been manifested by moderately severe incomplete paralysis. 7. The Veteran’s residual scar, status post left arm abrasion with history of second-degree burns, does not occupy an area or areas of at least 6 square inches (39 sq. cm.), is not painful and/or unstable, and does not result in functional impairment of an underlying joint. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for a 20 percent rating for thoracic spine disability were met from September 8, 2010 to March 10, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5242. 2. The criteria for a rating in excess of 20 percent for thoracic spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5242. 3. The criteria for a 20 percent rating for sciatic radiculopathy of the right lower extremity were met from March 11, 2019 to February 18, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520. 4. The criteria for a 20 percent rating for sciatic radiculopathy of the left lower extremity were met from March 11, 2019 to February 18, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520. 5. The criteria for a rating in excess of 20 percent for sciatic radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520. 6. The criteria for a rating in excess of 20 percent for sciatic radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520. 7. The criteria for a compensable rating for residual scar, status post left arm abrasion with history of second-degree burns, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.31, 4.118, Diagnostic Codes 7800-7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1976 to June 1980, and from June 1981 to June 1985. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The RO, in pertinent part, granted service connection and zero percent (noncompensable) ratings for both the Veteran’s thoracic spine disability and his left arm scar, effective September 8, 2010. In September 2019, the agency of original jurisdiction (AOJ) granted a 20 percent rating for the thoracic spine disability, as well a separate 10 percent ratings for sciatic radiculopathy of each lower extremity, all effective from March 11, 2019. More recently, in September 2020, the AOJ granted a 20 percent rating for the sciatic radiculopathy of each lower extremity, effective February 19, 2020. The Board previously remanded the thoracic spine and left arm scar issues to the AOJ for additional development in July 2015, February 2018, and December 2019. There has been at least substantial compliance with the Board’s remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Higher Ratings Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. 1. Entitlement to a compensable rating for thoracic spine disability prior to March 11, 2019 The Veteran’s thoracic spine disability has been evaluated pursuant to the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or if the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; or if there is muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or if there has been a vertebral body fracture with loss of 50 percent or more of the height. An evaluation of 20 percent is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. An evaluation of 40 percent is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or for favorable ankylosis of the entire thoracolumbar spine. An evaluation of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. An evaluation of 100 percent requires unfavorable ankylosis of the entire spine. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, and the normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The Board notes that the Veteran has reported pain and resulting functional impairment throughout the pendency of his claim, to include in the form of limitations with respect to standing, walking, and sitting. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated by the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). In evaluating the Veteran’s thoracic spine disability, the Board notes, as an initial matter, that service connection has been denied for a lumbar spine disability. See February 2018 Board decision. The Court has indicated that “when it is not possible to separate the effects of the [service-connected condition and a non-service-connected condition], VA regulations . . . clearly dictate that such signs and symptoms be attributed to the service-connected condition.” Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Board observes that the AOJ found in its August 2012 rating decision that a VA examiner specifically related the impairment associated with painful motion to the non-service-connected lumbar spine disability, and not the service-connected disability of the thoracic spine. However, the pertinent VA examination reports from June 2011 and May 2012 do not contain such an explicit finding. Further, the 20 percent rating assigned from March 11, 2019 was based on impairment associated with painful motion. See September 2019 rating decision. As noted, the law mandates resolving reasonable doubt in favor of the claimant regarding degree of disability. See 38 C.F.R. §§ 4.3, 4.7. As explained in greater detail below, range of motion findings for the period from September 8, 2010 to March 11, 2019 consistently show forward flexion of the thoracolumbar spine to be greater than 30 degrees, but not greater than 60 degrees. Therefore, the Veteran is entitled to a 20 percent rating for that period. 2. Entitlement to a rating in excess of 20 percent for the thoracic spine The Board further finds that the weight of the evidence is against a finding that the Veteran’s thoracic spine disability has been manifested by forward flexion limited to 30 degrees or less at any time during the pendency of his claim, even when taking into account his complaints of pain. For example, the June 2011 VA examination found he had forward flexion to 50 degrees, reduced to 40 degrees following repetitive testing. There were no range of motion findings in the May 2012 VA examination report. A July 2016 VA examination report noted forward flexion to 50 degrees, with no change after repetitive testing. Pain with weight bearing was noted. The examiner also stated that the examination results were neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. No response was provided with regard to flare-ups. Moreover, the examiner was unable to say without resort to speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. A March 2019 VA examination report noted forward flexion to 60 degrees, with no change after repetitive testing. This examiner was also unable to say without resort to speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. However, the examiner also found that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time, and during flare-ups. The most recent VA examination, in February 2020, noted forward flexion to 60 degrees, with no change after repetitive use testing. Further, the examiner found that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time, and during flare-ups. The examiner also stated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time, or during flare-ups. Nothing in the other evidence of record demonstrates that the Veteran has forward flexion limited to the extent necessary for a rating in excess of 20 percent, to include during flare-ups. In addition, VA examinations have consistent shown that he does not have ankylosis of the thoracolumbar spine, nor associated neurologic impairment other than the already separately evaluated sciatic radiculopathy of the lower extremities. In light of the foregoing, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran’s service-connected thoracic spine disability, to include on the basis of “staged” ratings. The Board acknowledges that the Veteran has contended that his thoracic spine disability should be evaluated on the basis of incapacitating episodes. See, e.g., April 2013 Notice of Disagreement; December 2013 Form 9. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that an evaluation of 10 percent is warranted for intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. An evaluation of 20 percent is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. An evaluation of 40 percent is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Finally, an evaluation of 60 percent requires IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For the purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Intervertebral Disc Syndrome, Note (1); see also 69 Fed. Reg. 32, 449 (June 10, 2004). In this case, the record, including the March 2019 and February 2020 VA examination reports, explicitly indicates that the Veteran does not have IVDS. Moreover, while the record demonstrates flare-ups of back pain, it does not reflect that he has had bedrest prescribed by a physician and treatment by a physician as it relates to his thoracic spine. Thus, he has not had “incapacitating episodes” as that term is defined by VA regulations. Consequently, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not applicable. For these reasons, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran’s service-connected thoracic spine disability. To that extent, the appeal of this issue is denied. 3. Entitlement to a rating in excess of 10 percent for sciatic radiculopathy of the right lower extremity prior to February 19, 2020 4. Entitlement to a rating in excess of 10 percent for sciatic radiculopathy of the left lower extremity prior to February 19, 2020 The radiculopathy of the Veteran's lower extremities has been evaluated pursuant to the criteria found at 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under that diagnostic code, complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates the foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe, with marked muscular dystrophy; a 40 percent evaluation if it is moderately severe; a 20 percent evaluation if it is moderate; and a 10 percent evaluation if it is mild. The terms “mild,” “moderate,” and “severe” are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of terminology such as “moderate” or “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board does note, for reference and illustrative purposes, that the definition for “mild” includes not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). In addition, a synonym for “mild” is “slight” and definitions for “slight” include small in size, degree, or amount. Id at 1038. The definitions for “moderate” include of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for “severe” include extremely intense. Id. at 1012. It is also noted that the term “moderately severe” indicates impairment that is considered more than “moderate,” but not to the extent as to be considered “severe.” The Board also acknowledges that VA’s Adjudication Manual, M21-1, III.iv.4.N.4.c (November 16, 2017) discusses the terminology in 38 C.F.R. § 4.124a. The Manual indicates the following with regard to "mild": As this is the lowest level of evaluation for each nerve this is the default assigned based on the symptoms, however slight, as long as they were sufficient to support a diagnosis of the peripheral nerve impairment for service connection purposes. In general, look for a disability limited to sensory deficits that are lower graded, less persistent, or affecting a small area. A very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis. The Manual indicates with regard to "moderate": Symptoms will likely be described by the claimants and medically graded as significantly disabling. In such cases a larger area in the nerve distribution may be affected by sensory symptoms. Other sign/symptom combinations that may fall into the moderate category include combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. The Manual notes that the moderately severe evaluation level is only applicable for involvement of the sciatic nerve. This is the maximum rating for sciatic nerve neuritis not characterized by the organic changes specified in 38 C.F.R. § 4.123. Motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability is expected. Atrophy may be present. However, for marked muscular atrophy see the criteria for a severe evaluation under 38 C.F.R. § 4.124a, Diagnostic Code 8520. The Manual indicates with regard to "severe": In general, expect motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases. For the sciatic nerve (38 C.F.R. § 4.124a, DC 8520) marked muscular atrophy is expected. Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve. Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain should be rated as high as severe incomplete paralysis of the nerve (38 C.F.R. § 4.123). Prior to November 2017 revisions, VA’s Adjudication Procedures Manual M21-1, Part III, Subpart iv, Chapter 4, § G(4)) defined “mild” incomplete paralysis as demonstrating subjective symptoms or diminished sensation; “moderate” incomplete paralysis as featuring the absence of sensation confirmed by objective findings; and “severe” incomplete paralysis as featuring more than sensory findings (such as atrophy, weakness, and diminished reflexes). In June 2016, VA amended the M21-1 adjudication manual “to further clarify the intent of VA's policy,” and the relevant portion of the M21-1 adjudication manual included the following—Important: This provision does not mean that if there is any impairment that is non-sensory (or involves a non-sensory component) such as a reflex abnormality, weakness or muscle atrophy, the disability must be evaluated as greater than moderate. Significant and widespread sensory impairment may potentially indicate the same or even more disability than a case involving a minimally reduced or increased reflex or minimally reduced strength. Further, the Court held in Miller v. Shulkin, 28 Vet. App. 376, 380 (2017), that “[a]lthough the note preceding § 4.124a directs the claims adjudicator to award no more than a 20% disability rating for incomplete paralysis of a peripheral nerve where the condition is productive of wholly sensory manifestations, it does not logically follow that any claimant who also exhibits non-sensory manifestations must necessarily be rated at a higher level.” The Adjudication Manual is not binding on the Board. DAV v. Sec'y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) ("The M21-1 Manual is binding on neither the agency nor tribunals"). Nevertheless, it does provide useful guidance in defining these terms, particularly if the Veteran demonstrates impairment consistent with higher rating(s) than currently in effect. Stated another way, the Board will look to see if there are findings that would warrant a higher rating under the M2-1 provisions, but would not deny the benefit sought on appeal if those provisions are not satisfied. In this case, the September 2020 rating decision which assigned 20 percent for the sciatic radiculopathy of the lower extremities noted that the February 2020 VA examination showed that the Veteran exhibited hypoactive reflexes of the bilateral knees and ankles. The AOJ found that the disabilities more closely met the moderate criteria based upon such symptomatology. The Board notes that the same symptomatology was exhibited on the March 2019 VA examination for both lower extremities. In light of the foregoing, and resolving reasonable doubt in the Veteran’s favor, the Board finds that he is entitled to a 20 percent rating for the sciatic neuropathy of each lower extremity for the period from March 11, 2019 to February 18, 2020. See 38 C.F.R. §§ 4.3, 4.7. 5. Entitlement to rating in excess of 20 percent for sciatic radiculopathy of the right lower extremity 6. Entitlement to a rating in excess of 20 percent for sciatic radiculopathy of the left lower extremity In this case, the sciatic radiculopathy of the Veteran’s right or left lower extremity has not been manifested by moderately severe incomplete paralysis. In pertinent part, both the March 2019 and February 2020 VA examination reports actually found mild radiculopathy of both lower extremities. Although the Board is not bound by this finding, it is competent medical evidence for consideration. The Board finds that the record reflects that both lower extremities have exhibited no more than moderate incomplete paralysis; i.e., impairment that is no more than average or of medium quantity, quality, or extent. At both the March 2019 and February 2020 VA examinations, the Veteran indicated he did not experience constant pain or numbness and had only mild intermittent pain and paresthesias and/or dysesthesias. Reflexes were 1+ (hypoactive) for both of the knees and ankles. However, muscle strength testing was consistently 5/5 (normal) throughout the lower extremities. Further, all sensory tests were also normal. In addition, nothing in the record reflects that either lower extremity has exhibited symptomatology consistent with the definition of “moderately severe” as set out in the M2-1 provisions. In light of the foregoing, the Board finds that the sciatic radiculopathy of the Veteran’s lower extremities has not met or more nearly approximated the criteria for a rating in excess of 20 percent. Therefore, the preponderance of the evidence is against the assignment of still-higher ratings, to include on the basis of “staged” ratings. 7. Entitlement to a compensable rating for residual scar, status post left arm abrasion with history of second-degree burns Scarring is generally evaluated pursuant to the criteria found at 38 C.F.R. § 4.118, Diagnostic 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, 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. Initially, the Board notes that Diagnostic Code 7800 sets out criteria for rating scars based on disfigurement of the head, face, or neck. As the left arm scar is clearly not of the head, face, or neck, that diagnostic code is not applicable. Diagnostic Codes 7801 and 7802 set out criteria for evaluating scars other than of the head, face, or neck. As such, they are at least potentially applicable. Diagnostic Code 7801 provides that scars, other than of the head, face or neck, that are deep or that cause limited motion warrant a 10 percent rating when the scars cover an area or areas exceeding 6 square inches (39 sq. cm.). A 20 percent rating is warranted when the area or areas exceed 12 square inches (77 sq. cm.). A 30 percent rating requires an area or areas exceeding 72 square inches (465 sq. cm.), while a 40 percent rating requires an area or areas exceeding 144 square inches (929 sq. cm.). Under Diagnostic Code 7802, scars, other than of the head, face, or neck, that are superficial and that do not cause limited motion warrant a 10 percent rating when the scars cover an area or areas of 144 square inches (929 sq. cm.) or greater. In this case, a June 2011 VA examination report noted that the left arm scar measured 6 cm x 0.1 cm. Subsequent VA examinations in July 2016, March 2019, and February 2020 found that it measured 6.5 x 3.2 cm. None of the reports indicated that it affected an area of at least 6 square inches (39 sq. cm.). Thus, a compensable rating is not warranted under either Diagnostic Code 7801 or 7802. Diagnostic Code 7804 (before and after the 2018 amendments) provides a 10 percent rating for 1 or 2 scars that are unstable or painful. A 20 percent rating is warranted for 3 to 4 scars that are unstable or painful, and a 30 percent disability rating is assigned for 5 or more scars that are unstable or painful. Note (1) to Diagnostic Code 7804 provides 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, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. The record does not reflect that the service-connected left arm scar is painful and/or unstable. The June 2011 VA examination found that it was nontender, with no tissue loss or adhesions. Likewise, subsequent VA examinations in July 2016, March 2019, and February 2020 explicitly found that it was not painful or unstable. The Veteran has not disputed that finding. Diagnostic Code 7805 provides that any disabling effect(s) not considered in a rating under Diagnostic Codes 7800-04 are to be evaluated under an appropriate diagnostic code. Here, there is no indication of such effects in the June 2011 VA examination report, medical treatment records, or the Veteran’s statements. Further, the July 2016, March 2019, and February 2020 VA examinations explicitly indicated that there was no such impairment. In light of the foregoing, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating for the left arm scar. The appeal of this issue is denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John Kitlas, 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.