Citation Nr: 21009735 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 18-00 815 DATE: February 23, 2021 ORDER Entitlement to an initial compensable rating prior to July 11, 2017 for a right foot surgical scar is denied. Entitlement to a 10 percent rating from July 11, 2017 to March 31, 2020 for a right foot surgical scar is granted. REMANDED Entitlement to a rating higher than 10 percent from July 11, 2017 for a right foot surgical scar is remanded. FINDINGS OF FACT 1. Prior to July 11, 2017 the Veteran’s right foot surgical scar was not manifest by underlying soft tissue damage, an affected area of at least 39 square centimeters, a deep nonlinear scar, an area of 144 square inches or greater, a superficial nonlinear scar, or an unstable or pain scar. 2. From July 11, 2017 to March 31, 2020 the Veteran’s right foot surgical scar manifest with a painful scar, but with no other impairments. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating prior to July 11, 2017 for right foot surgical scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code (Code) 7805. 2. The criteria for entitlement to a 10 percent rating from July 11, 2017 to March 31, 2020 for right foot surgical scar have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Code, 7804, 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from January 2003 to December 2003. The matter was before the Board of Veterans’ Appeal (Board) in March 2020 and remanded to a Department of Veterans Affairs (VA) Regional Office (RO) for additional development. By rating decision in July 2020 the RO increased the Veteran’s rating for right foot surgical scar to 10 percent effective April 1, 2020. As this was less than the maximum benefit allowed under VA law and regulations, the claim for increase remained on appeal. Also, in the July 2020 rating decision, the RO granted service connection for right ankle lateral collateral ligament sprain. This was a full grant of the benefit sought. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where 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. See 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran continues to appeal the initial noncompensable rating for a right foot scar he received as a result of a bunionectomy performed in February 2017. The Veteran’s right foot surgical scar is rated under Code 7805. The Board notes that on July 13, 2018, VA published a final rule amending its regulations on skin disabilities. 83 FR 32592 (July 13, 2018). The effective date of the final rule is August 13, 2018. However, for this final rule, VA’s intent is that the 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. As the Veteran filed his claim before the August 13, 2018 effective date, the Board will consider whether he is entitled to an increased rating under either the old or new rating criteria. Code 7805 was not changed by these amendments. Code 7805 provides for other scars and other effects of scars evaluated under Codes 7800, 7801, 7802, 7804. Evaluate any disabling effect(s) not considered in a rating provided under Codes 7800-04 under an appropriate diagnostic code. 38 C.F.R. § 4.118, Code 7805. Code 7800 is not applicable here because the Veteran’s scar is not a result of a burn nor affects his head, face or neck. Code 7801 was revised with the August 2018 amendment. Prior to August 13, 2018, 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. In contrast to the previous diagnostic code, 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. Prior to August 13, 2018, the pre-amended 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 covers 144 square inches (929 square cm.) or greater. Code 7804 was not revised by the recent regulatory amendments. Under Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful. A 30 percent rating is warranted for five or more scars that are unstable or painful. Note 1 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 should be added to the rating that is based on the total number of unstable or painful scars. On April 2017 VA scars/disfigurement examination, the Veteran reported he was 2 months post right bunion surgery and has right foot pain. On physical examination he had a linear 10-centimeter healed surgical scar of the dorsum of his right foot from the mid-big toe to mid-foot. There was no inflammation or deformity. The Veteran reported tenderness along the length of his surgical site under his surgical scar. The right foot scar was not painful or unstable, or with frequent loss of covering of skin over the scar. There were no scars due to burns. The scar was not superficial, deep, or non-linear. The diagnosis was healed surgical scar and postoperative pain from right bunionectomy February 2017. The right foot scar did not result in limitation of function. The Veteran’s right foot scar did not impact his ability to work. A July 2017 VA outpatient clinic note reveals the Veteran was seen with complaints of pain in the right foot. On physical examination, scar pain was noted of the right 1st metatarsophalangeal. On October 2017 VA-contract scars/disfigurement examination, the Veteran reported having one scar located on his right foot from a bunionectomy performed in February 2017. He stated that one “spot” is callused from splitting open several times. He is unable to bend the last great toe joint fully due to the tightness of the skin where the scar is located. There was extreme deep pain rated at an 8/10 when it is forced to bend. The right foot scar is not due to burns. The Veteran’s linear scar is located on the dorsal aspect of the right great toe and measures 6x0.2 centimeters. There were no superficial or deep non-linear scars. The scar did not result in limitation of function or impact his ability to work. The diagnosis was status post right bunionectomy with postoperative scar. The examiner noted the Veteran’s scar condition was active at that time. An October 2018 VA-contract foot examination indicated the Veteran had a scar of the right great toe that measured 9.0 centimeters times width of 0.4 centimeters that was not painful or unstable or had a total area equal to or greater than 39 square centimeters (6 square inches). An April 2020 VA-contract scars/disfigurement disability examination report reveals the Veteran has one scar over his right distal foot and great toes 9.0 x 0.3 centimeters with aching pain. The scar was not unstable with frequent loss of covering of skin over the scar or due to burns. There was no underlying tissue damage of the right lower extremity with an approximate total area of 2.7 cm2. The diagnosis was post-surgical scar. The Veteran’s right foot scar did not result in limitation of function or limitation of motion; nor did right foot scar impact his ability to work. The examiner noted the Veteran is unable to stand or walk for prolonged periods. There is no limitation to sedentary work. In an April 2020 “Medical Evaluation Protocol” the Veteran noted that his right foot surgical scar originated from a bunionectomy performed by VA in February 2017. In June 2019, a second surgery was performed by VA to remove surgical hardware from the right foot surgical site because the hardware was causing significant pain and instability. He stated that the scar is deep and not superficial. The incision was bone-deep, and an ostectomy was performed. The Veteran stated he experienced significant pain at the scar site immediately after surgery, and he still experienced pain from “the scar even after over a year of healing.” The scar has never remained stable for an appreciable amount of time. He has been prescribed pain medication. He described current symptoms of pain, loss of range of motion, weakness in the right foot, and frequent instability at the scar site. The skin over the scar is visibly and palpably scabbed and calloused from frequent instability. He frequently experiences shooting, electricity-like pains in the scar as his foot strikes the ground while walking. His foot swells daily when he stands or walks, and the scar site becomes red and painful. Prior to July 11, 2017 The Veteran was assigned a 0 percent rating for a right foot surgical scar prior to July11, 2017 under Code 7805. Upon review of the record, the Board finds that an initial compensable rating for right foot surgical scar prior to July 11, 2017 is not warranted. An April 2017 VA scars examination report reflects the Veteran had a linear 10-centimeter healed surgical scar of the dorsum of his right foot from the mid-big toe to mid-foot that was not painful or unstable, or with frequent loss of covering of skin over the scar. The scar was not superficial, deep or non-linear. While the Veteran reported right foot pain and tenderness along the surgical site, the examiner diagnosed pain from the right bunionectomy performed 2 months earlier in February 2017. Notably, the Veteran is already being compensated for his symptoms related to his post right foot bunionectomy. The examiner noted the scar was healed and not painful or unstable. As such, the claim for initial compensable rating for right foot surgical scar from July 11, 2017 is not warranted. The Board has considered whether the Veteran warrants an initial compensable rating from July 11, 2017 under Codes 7801, 7802, 7804. Under the pre-amended criteria of Code 7801, the April 2017 VA examiner did not indicate that the Veteran’s scar was “deep,” nor was there evidence that the scar is nonlinear. Further, under the amended criteria, there is no evidence that the Veteran’s scar is associated with underlying soft tissue damage. Thus, a compensable rating under Code 7801 is not warranted. Under Code 7802 pre-amended criteria, there is no evidence that the Veteran’s scar is superficial and nonlinear. Further, under the amended criteria, there is no evidence that the Veteran’s scar covers 144 square inches (929 square cm.) or greater. Thus, a compensable rating under Code 7802 is not warranted. The April 2017 VA examination report shows the Veteran’s scar was neither unstable nor painful on examination. Thus, a compensable rating under Code 7804 is not warranted. As the preponderance of the evidence is against assigning a compensable rating prior to July 11, 2017, the benefit of the doubt rule is not applicable. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7. From July 11, 2017 to March 31, 2020 A July 2017 VA outpatient clinic note reveals the Veteran was seen with complaints of pain in the right foot. On physical examination, scar pain was noted of the right 1st metatarsophalangeal. Based on evidence of painful scar, a compensable rating is warranted from July 11, 2017 to March 31, 2020. Under Code 7804, one or two painful scars warrant a 10 percent rating. The Board, therefore, finds that a rating of 10 percent is warranted for the Veteran’s right foot surgical scar during this period. To this extent, the appeal is granted. For reasons described below, the determination of whether an even higher rating is warranted for the period beginning July 11, 2017 will be addressed upon remand. In the context of this scar disability claim, the Veteran does not contend, nor does the record show, that he is unemployable due to his service-connected right foot surgical scar. On examinations in April and October 2017, the examiners noted that the Veteran’s right foot scar did not impact his ability to work. Consequently, the matter of a total rating based on individual unemployability is not raised by the record in this instance. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). REASONS FOR REMAND Entitlement to a rating higher than 10 percent from July 11, 2017 for right foot surgical scar The claim of entitlement to a rating higher than 10 percent for right foot surgical scar was last adjudicated in a July 2020 supplemental statement of the case (SSOC). Since then, the Veteran underwent a VA-contract scars/disfigurement examination in August 2020, and VA treatment records dated May 2020 to July 2020 have been added to the claims file. The RO has not considered this additional evidence in the first instance with respect to the instant claim of entitlement to a rating higher than 10 percent from July 11, 2017 for right foot surgical scar. Therefore, a remand is necessary to issue another SSOC to inform the Veteran of the material changes in information since the July 2020 SSOC and to consider new evidence in the first instance. 38 C.F.R. § 19.31(a), (b). The matter is REMANDED for the following action: Furnish the Veteran with an SSOC that considers all relevant evidence submitted since the July 2020 SSOC pertaining to the issue of an increased rating for right foot surgical scar from July 11, 2017, to include the August 2020 VA-contract scars/disfigurement examination and VA treatment records dated May 2020 to July 2020. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Young, 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.