Citation Nr: 21024276 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 20-29 882 DATE: April 22, 2021 ORDER Reopening service connection for bilateral hearing loss, having been withdrawn, is dismissed. Reopening service connection for right hallux pain, having been withdrawn, is dismissed. Reopening service connection for left hallux pain, having been withdrawn, is dismissed. Reopening service connection for deep vein thrombosis, having been withdrawn, is dismissed. Reopening service connection for a left hand/thumb injury, having been withdrawn, is dismissed. Reopening service connection for left shoulder/arm pain, having been withdrawn, is dismissed. Reopening service connection for polyarthralgia, having been withdrawn, is dismissed. Reopening service connection for a pulmonary embolism, having been withdrawn, is dismissed. Reopening service connection for a right groin scar, having been withdrawn, is dismissed. Reopening service connection for right upper leg pain, having been withdrawn, is dismissed. Reopening service connection for a tibia/fibula fracture, having been withdrawn, is dismissed. Reopening service connection for ulcerative colitis, having been withdrawn, is dismissed. Service connection for a left ear cyst, having been withdrawn, is dismissed. Service connection for pseudofolliculitis barbae, having been withdrawn, is dismissed. A rating in excess of 10 percent for painful scars of the feet, having been withdrawn, is dismissed. Service connection for right knee arthritis is granted. A December 28, 2015 Department of Veterans Affairs (VA) Form 9 was timely filed. A timely filed December 2015 VA Form 9 results in an earlier effective date of July 3, 2013 for the grant of service connection for bilateral foot fibromas. A timely filed December 2015 VA Form 9 results in an earlier effective date of July 3, 2013 for the grant of service connection for bilateral foot fibroma excision residuals. A timely filed December 2015 VA Form 9 results in an earlier effective date of July 3, 2013 for the grant of a 10 percent rating for multiple noncompensable disabilities. From July 3, 2013, a 10 percent disability rating for the bilateral foot disability is granted. From July 3, 2013, a higher (compensable) disability rating for status-post bilateral foot fibroma excision residuals is denied. From April 28, 2016 to August 28, 2020, a separate 10 percent disability rating for painful foot scars is granted. REMANDED Service connection for depression, including as secondary to a service-connected disability, is remanded. Secondary service connection for a right hip disability is remanded. Secondary service connection for a left hip disability is remanded. Secondary service connection for a lumbar spine disability is remanded. A disability rating in excess of 10 percent for a left knee disability is remanded. FINDINGS OF FACT 1. At the January 2021 Board hearing, prior to the promulgation of a decision in the present appeal, the Veteran withdrew the issues of reopening service connection for bilateral hearing loss, bilateral hallux pain, deep vein thrombosis, a left hand/thumb injury, left shoulder/arm pain, polyarthralgia, a pulmonary embolism, a right groin scar, right upper leg pain, a tibia/fibula fracture, and ulcerative colitis, as well as service connection for a left ear cyst and pseudofolliculitis barbae, and a rating in excess of 10 percent for painful scars of the feet. 2. Symptoms of right knee arthritis have been continuous since service separation. 3. The Veteran is currently diagnosed with right knee arthritis. 4. On March 12, 2014, the Regional Office (RO) issued a rating decision; a timely Notice of Disagreement (NOD) was received in October 2014. 5. On February 10, 2015, the RO issued a Statement of the Case (SOC) to the Veteran, but not to the representative. 6. The representative became aware of the SOC on December 28, 2015. 7. The representative filed VA Form 9 on December 28, 2015. 8. A timely filed December 2015 VA Form 9 results in an earlier effective date of July 3, 2013 for the grant of service connection for bilateral foot fibromas and bilateral foot fibroma excision residuals, as well as the grant of a 10 percent rating for multiple noncompensable disabilities. 9. For the initial rating period from July 3, 2013, the bilateral foot disability has manifested as arthritis with pain. 10. For the initial rating period from July 3, 2013, bilateral foot fibroma excision residuals measure less than 39 square centimeters and are without underlying soft tissue damage. 11. For the initial rating period from April 28, 2016 to August 28, 2020, the foot scars have manifested as two scars that are painful. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of a substantive appeal have been met regarding the appeal to reopen service connection for bilateral hearing loss. 38 U.S.C. § 7105(b)(2),(d)(5); 38 C.F.R. § 20.205. 2. The criteria for the withdrawal of a substantive appeal have been met regarding the appeal to reopen service connection for right hallux pain. 38 U.S.C. § 7105(b)(2),(d)(5); 38 C.F.R. § 20.205. 3. The criteria for the withdrawal of a substantive appeal have been met regarding the appeal to reopen service connection for left hallux pain. 38 U.S.C. § 7105(b)(2),(d)(5); 38 C.F.R. § 20.205. 4. The criteria for the withdrawal of a substantive appeal have been met regarding the appeal to reopen service connection for deep vein thrombosis. 38 U.S.C. § 7105(b)(2),(d)(5); 38 C.F.R. § 20.205. 5. The criteria for the withdrawal of a substantive appeal have been met regarding the appeal to reopen service connection for a left hand/thumb injury. 38 U.S.C. § 7105(b)(2),(d)(5); 38 C.F.R. § 20.205. 6. The criteria for the withdrawal of a substantive appeal have been met regarding the appeal to reopen service connection for left shoulder/arm pain. 38 U.S.C. § 7105(b)(2),(d)(5); 38 C.F.R. § 20.205. 7. The criteria for the withdrawal of a substantive appeal have been met regarding the appeal to reopen service connection for polyarthralgia. 38 U.S.C. § 7105(b)(2),(d)(5); 38 C.F.R. § 20.205. 8. The criteria for the withdrawal of a substantive appeal have been met regarding the appeal to reopen service connection for a pulmonary embolism. 38 U.S.C. § 7105(b)(2),(d)(5); 38 C.F.R. § 20.205. 9. The criteria for the withdrawal of a substantive appeal have been met regarding the appeal to reopen service connection for a right groin scar. 38 U.S.C. § 7105(b)(2),(d)(5); 38 C.F.R. § 20.205. 10. The criteria for the withdrawal of a substantive appeal have been met regarding the appeal to reopen service connection for right upper leg pain. 38 U.S.C. § 7105(b)(2),(d)(5); 38 C.F.R. § 20.205. 11. The criteria for the withdrawal of a substantive appeal have been met regarding the appeal to reopen service connection for a tibia/fibula fracture. 38 U.S.C. § 7105(b)(2),(d)(5); 38 C.F.R. § 20.205. 12. The criteria for the withdrawal of a substantive appeal have been met regarding the appeal to reopen service connection for ulcerative colitis. 38 U.S.C. § 7105(b)(2),(d)(5); 38 C.F.R. § 20.205. 13. The criteria for the withdrawal of a substantive appeal have been met regarding the appeal for service connection for a left ear cyst. 38 U.S.C. § 7105(b)(2),(d)(5); 38 C.F.R. § 20.205. 14. The criteria for the withdrawal of a substantive appeal have been met regarding the appeal for service connection for pseudofolliculitis barbae. 38 U.S.C. § 7105(b)(2),(d)(5); 38 C.F.R. § 20.205. 15. The criteria for the withdrawal of a substantive appeal have been met regarding the appeal for a rating in excess of 10 percent for painful scars of the feet. 38 U.S.C. § 7105(b)(2),(d)(5); 38 C.F.R. § 20.205. 16. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for right knee arthritis have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a). 17. A substantive appeal, via VA Form 9, with respect to the March 2014 RO rating decision was timely. 38 U.S.C. §§ 7105, 7108; 38 C.F.R. §§ 3.103, 3.104, 19.30, 19.32, 19.34, 19.52, 20.200, 20.300, 20.301. 18. The criteria for an effective date of July 3, 2013, but no earlier, for the grant of service connection for bilateral foot fibromas have been met. 38 U.S.C. §§ 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.156(c), 3.157, 3.159, 3.310, 3.400. 19. The criteria for an effective date of July 3, 2013, but no earlier, for the grant of service connection for bilateral foot fibroma excision residuals have been met. 38 U.S.C. §§ 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.156(c), 3.157, 3.159, 3.310, 3.400. 20. The criteria for an effective date of July 3, 2013, but no earlier, for the grant of a 10 percent rating for multiple noncompensable disabilities have been met. 38 U.S.C. §§ 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.156(c), 3.157, 3.159, 3.310, 3.400. 21. Resolving reasonable doubt in favor of the Veteran, for the initial rating period from July 3, 2013, the criteria for a 10 percent disability rating for a bilateral foot disability with arthritis have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.21, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003. 22. The criteria for an initial compensable disability rating for status post bilateral foot fibroma excision residuals have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7805. 23. Resolving reasonable doubt in favor of the Veteran, for the initial rating period from April 28, 2016 to August 28, 2020, the criteria for a separate 10 percent initial disability rating, but no higher, for painful foot scars have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from August 1979 to August 1984, and from October 2003 to September 2004. In January 2021 the Veteran testified at a Board virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims 1. Reopening service connection for bilateral hearing loss, having been withdrawn, is dismissed. 2. Reopening service connection for right hallux pain, having been withdrawn, is dismissed. 3. Reopening service connection for left hallux pain, having been withdrawn, is dismissed. 4. Reopening service connection for deep vein thrombosis, having been withdrawn, is dismissed. 5. Reopening service connection for a left hand/thumb injury, having been withdrawn, is dismissed. 6. Reopening service connection for left shoulder/arm pain, having been withdrawn, is dismissed. 7. Reopening service connection for polyarthralgia, having been withdrawn, is dismissed. 8. Reopening service connection for a pulmonary embolism, having been withdrawn, is dismissed. 9. Reopening service connection for a right groin scar, having been withdrawn, is dismissed. 10. Reopening service connection for right upper leg pain, having been withdrawn, is dismissed. 11. Reopening service connection for a tibia/fibula fracture, having been withdrawn, is dismissed. 12. Reopening service connection for ulcerative colitis, having been withdrawn, is dismissed. 13. Service connection for a left ear cyst, having been withdrawn, is dismissed. 14. Service connection for pseudofolliculitis barbae, having been withdrawn, is dismissed. 15. A rating in excess of 10 percent for painful scars of the feet, having been withdrawn, is dismissed. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. A veteran may withdraw a substantive appeal by telling the Board of the decision to withdraw either in writing or on the record at a Board personal hearing. 38 C.F.R. § 20.205. At the January 2021 Board hearing, prior to the promulgation of a decision in the present appeal, the Veteran withdrew the substantive appeal as to the issues of reopening service connection for bilateral hearing loss, bilateral hallux pain, deep vein thrombosis, a left hand/thumb injury, left shoulder/arm pain, polyarthralgia, a pulmonary embolism, a right groin scar, right upper leg pain, a tibia/fibula fracture, and ulcerative colitis, as well as service connection for a left ear cyst and pseudofolliculitis barbae, and a rating in excess of 10 percent for painful scars of the feet. As the Veteran has withdrawn the appeal regarding these issues, there remain no allegations of errors of fact or law for appellate consideration as to these issues. Accordingly, the Board does not have jurisdiction to review these issues, which will be dismissed. 16. Service Connection for Right Knee Arthritis is Granted. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. The Veteran is currently diagnosed with arthritis of the right knee, which is a “chronic” disease under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran essentially contends developing a right knee disability from sustaining in-service injuries. Specifically, the January 2021 Board hearing transcript reflects the Veteran indicated that a right knee disability began in 1983 during service and was related to overuse while aboard the U.S.S. Saratoga. After a review of all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether symptoms of the currently diagnosed right knee arthritis have been continuous since service. The August 1984 service treatment records reflect the Veteran reported a trick/locked knee. Additionally, the Veteran has consistently contended that a right knee disability began during service and has continued to worsen since service separation. See January 2021 Board hearing transcript. The Veteran has provided credible statements as well as lay histories that right knee symptoms have been continuous since service. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that, based on continuous post-service symptoms of right knee arthritis, presumptive service connection is warranted under 38 C.F.R. § 3.303(b). 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 17. A Substantive Appeal (VA Form 9) is Timely. In order to perfect an appeal to the Board, a substantive appeal (VA Form 9 or equivalent statement) must be submitted within 60 days of the date of mailing of the statement of the case or the remainder the one-year period from the date of mailing of notification of the determination being appealed, whichever period ends later. 38 C.F.R. §§ 20.200, 20.202, 20.302(b). If a veteran does not file a timely VA Form 9, then the underlying rating decision (not the SOC) becomes final. 38 C.F.R. § 19.32. Whether a substantive appeal, i.e., VA Form 9, has been filed on time is an appealable issue. 38 C.F.R. § 19.34. Claimants and their representatives are entitled to notice of any decision made by VA, including in a SOC. 38 C.F.R. §§ 3.103, 19.30. Under the presumption of regularity in the administrative process, it is presumed that a claimant received proper notice. See Boyd v. McDonald, 27 Vet. App. 63, 71-72 (2014) (holding that under the presumption of regularity, if notice is sent to the claimant's last known address of record, it will be presumed that VA properly discharged its official duties); Marsh v. Nicholson, 19 Vet. App. 381, 385 (2005) (finding the presumption of regularity states, in the absence of clear evidence to the contrary, that VA and other government officials perform their duties correctly, fairly, in good faith, and in accordance with the law and governing regulations). A veteran may rebut the presumption of regularity by submitting clear evidence to the effect that VA’s regular mailing practices were not followed in his case. Crain v. Principi, 17 Vet. App. 182, 188 (2003). Such evidence includes “clear evidence that VA did not follow its regular mailing practices or that its practices were not regular.” Boyd, 27 Vet. App. at 72; see also Romero v. Wilkie, No. 19 3687, 2020 U.S. App. Vet. Claims LEXIS 2104, at *20 (Vet. App. November 20, 2020). An “assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA’s mailing process.” Jones v. West, 12 Vet. App. 98, 103 (1998); see id. The presumption of regularity, however, may be rebutted where there is evidence that (1) VA used an incorrect address on the mailing in question or (2) the mailing was returned as undeliverable and “there were other possible and plausible addresses available to VA” at the time. Boyd, 27 Vet. App. at 72. If a veteran succeeds in rebutting the presumption of regularity, then the burden shifts to VA to establish that regular administrative practices were, in fact, observed. Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001); Baxter v. Principi, 17 Vet. App. 407, 410 (2004); Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992). If the presumption of regularity is rebutted and the date of the SOC itself cannot, alone, be used to determine the date on which it was mailed to a veteran, the burden shifts to VA to determine when the veteran received the SOC for purposes of determining whether a timely substantive appeal was received following receipt of the SOC. Crumlich v. Wilkie, 31 Vet. App. 194, 203-204 (2019) (holding that the portion of 38 C.F.R. § 20.302 (b)(1), which creates a presumption of the date of mailing of a SOC for the purposes of determining whether an appeal has been timely filed is invalid). In other instances of VA notice, the period in which to file an appeal does not begin to run if a decision is not mailed in accordance with applicable regulations. See Ashley, 2 Vet. App. at 311 (finding an appeal more than 120 days after receipt of a Board decision to be timely because the mailing procedures had not been followed when the Board did not mail the veteran’s representative a copy of its decision, although it had mailed the veteran a copy of the decision). In this case, the Board finds the presumption of regularity is rebutted regarding timeliness of mailing of the substantive appeal to the representative. At the January 2021 Board hearing the Veteran’s representative asserted that the representative did not receive a copy of the SOC and was not aware an SOC had been issued until December 2015, when the representative called VA to inquire about the appeal. While the “cc” to the February 2015 SOC cover letter indicates that a copy of the SOC was sent to the representative, the Board cannot say whether the envelope containing a copy of the SOC was sent to the representative, particularly in light of the United States Court of Appeals for Veterans Claims (Court) recent decision in Romero v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 2104 (Nov. 20, 2020), where the Veteran’s attorney alleged that he had not received a copy of the SOC and attributed this to mailing inconsistencies at VA. In sum, the February 2015 mailing did not satisfy the requirements to provide the Veteran’s representative of record a copy of the SOC, as described in sections 3.103 and 19.30 of Title 38 of the Code of Federal Regulations. The 60-day appeal period did not begin to run on February 10, 2015, the date of the alleged mailing, even though the Veteran is assumed to have received notice on that date, because the representative did not also receive such notice of the SOC. See Ashley, 2 Vet. App. at 311. The 60-day appeal period should not have begun to run until, at the earliest, December 28, 2015, the date on which the representative was informed by a VA customer service representative that a February 2015 SOC had been issued; therefore, the December 28, 2015 VA Form 9 is timely, and the Veteran’s appeal of the March 2014 RO rating decision denying various issues should proceed. 18. Earlier Effective Date for Bilateral Foot Disability Rating is Granted. 19. Earlier Effective Date for Bilateral Foot Disability Residuals is Granted. 20. Earlier Effective Date of Initial Rating for Multiple Noncompensable Disabilities is Granted. For claims received prior to March 24, 2015, as in this case, a “claim” is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit and VA is required to identify and act on informal claims for benefits. 38 C.F.R. §§ 3.1(p), 3.155(a); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Pursuant to 38 C.F.R. § 3.155, any communication or action indicating intent to apply for one or more VA benefits, including statements from a veteran's duly authorized representative, may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1. Throughout the course of this appeal, including at the January 2021 Board hearing, the Veteran’s representative has essentially contended that an earlier effective date of July 3, 2013 is warranted, which is the date of the original claim for service connection for various disorder, to include a bilateral foot disability. The contention is that a timely filed December 2015 VA Form 9 results in an earlier effective date of July 3, 2013 for the grant of service connection for bilateral foot fibromas and bilateral foot fibroma excision residuals, as well as the grant of a 10 percent initial disability rating for multiple noncompensable disabilities. As the instant decision found that the December 28, 2015 VA Form 9 was timely, the Board finds that entitlement to service connection for bilateral foot fibromas and bilateral foot fibroma excision residuals, as well as the grant of a 10 percent rating for multiple noncompensable disabilities arose as early as July 3, 2013, the date of the original claim for service connection. As the December 28, 2015 VA Form 9, concerning the issue of service connection for a bilateral foot disability, was timely filed, the Board finds that the criteria are met for an effective date of July 3, 2013 for the grant of service connection for bilateral foot fibromas and bilateral foot fibroma excision residuals, as well as the grant of a 10 percent rating for multiple noncompensable disabilities. 21. Rating Bilateral Foot Disability Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). For the initial rating period on appeal, the Veteran is in receipt of a noncompensable (zero percent) rating for the bilateral foot disability under Diagnostic Code 7819. At the January 2021 Board hearing, the Veteran contended that a 10 percent rating was warranted under Diagnostic Code 5003 as the bilateral foot disability manifested as degenerative arthritis established by X-ray findings that causes limitation of motion. After a review of all the evidence, both lay and medical, the Board finds that the evidence is at least in equipoise on the question of whether the Diagnostic Code 5003 criteria for a 10 percent disability rating have been met for the bilateral foot disability. The Veteran has testified to painful limitation of foot motion. See January 2021 Board hearing transcript. The April 2016 VA examination report reflects that an x-ray showed bilateral foot arthritis, and there was also evidence of painful motion of the feet. These findings and symptoms are consistent with a 10 percent rating under Diagnostic Code 5003 for noncompensable limitation of motion due to arthritis pain. Resolving reasonable doubt in the Veteran’s favor, for the initial rating period on appeal, the Board finds that a 10 percent disability rating is warranted under Diagnostic Code 5003 for the bilateral foot disability. 38 C.F.R. §§ 4.3, 4.7, 4.118. As Diagnostic Code 5003 provides a maximum 10 percent rating for degenerative arthritis established by X-ray findings that causes limitation of motion. 22. Rating Bilateral Excision Residuals is Denied. For the rating period on appeal, the Veteran is in receipt of a noncompensable rating for bilateral fibroma excision residuals under Diagnostic Code 7805. The service-connected residual foot scars, status post excision, are rated under Diagnostic Code 7805 for other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. Diagnostic Code 7800 pertains to burn scars and scars of the head, face or neck. As the foot scars are not the result of a burn, nor is it on the head, face, or neck, the scar may be rated under 7801, 7802, or 7804. Diagnostic Code 7801 indicates that for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.), a 10 percent rating is warranted. Note (1) provides that a deep scar is one associated with underlying soft tissue damage. Under Diagnostic Code 7802, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater warrant a 10 percent evaluation. Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage. Diagnostic Code 7805 instructs that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 to be rated under an appropriate Diagnostic Code. In this case, Diagnostic Code 7804 in inapplicable as the Veteran is already in receipt of a separate 10 percent rating for the painful foot scars (discussed below) related to the bilateral foot disability. After a review of all the evidence, lay and medical, the Board finds that, for the initial rating period on appeal, the service-connected foot excision residuals measure less than 39 square centimeters and are without underlying soft tissue damage. The April 2016 VA examination report reflects foot calluses, and the Veteran has not alleged, and the record does not otherwise reflect any scar that measures more than 39 square centimeters and/or underlying soft tissue damage. As discussed below, the instant decision grants a 10 percent separate rating for painful foot scars for the period from April 28, 2016 (date of VA examination). As such, Diagnostic Code 7804 is inapplicable. Finally, as the scar does not result in any additional disabling effects, an increased rating under Diagnostic Code 7805 is not warranted. For these reasons, the Board finds that the bilateral foot excision residual disability picture does not warrant a higher rating for the rating period on appeal. See 38 C.F.R. §§ 4.3, 4.7, 4.71a. 23. Separate 10 Percent Rating for Foot Scars is Granted. Under Diagnostic Code 7804, 10 percent rating is warranted for one or two scars that are unstable or painful. Three or four scars that are unstable or painful will be assigned a 20 percent rating. Five or more scars that are unstable or painful will be assigned a 30 percent rating. Note (1) indicates 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, add 10 percent to the rating that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7804. Initially, the Veteran has contended that a separate compensable rating for painful foot scars is warranted for the period from August 28, 2016 to August 28, 2020. See January 2021 Board hearing transcript. The Veteran is already in receipt of a 10 percent rating for the foot scars for the period from August 28, 2020, and withdrew the issue of a rating in excess of 10 percent for painful foot scars. As such, the Board will only address whether a compensable rating is warranted for the period from August 28, 2016 to August 28, 2020. The Veteran has contended that the separate 10 percent rating for painful foot scars is warranted from April 28, 2016 to August 28, 2020, which is the date of a VA foot examination. See January 2021 Board hearing transcript. The April 2016 VA examination report reflects a right foot surgical scar. The January 2021 Board hearing transcript reflects the Veteran testified to reporting to the April 2016 VA examiner that the foot scar had been painful since at least 2016. Resolving reasonable doubt in the Veteran’s favor, for the period from April 28, 2016 (date of VA examination) to August 8, 2020, the Board finds that separate 10 percent disability rating is warranted under Diagnostic Code 7804 for a painful surgical scar. 38 C.F.R. §§ 4.3, 4.7, 4.118. REASONS FOR REMAND 24. Service Connection for Depression is Remanded. As the instant decision found that the December 28, 2015 VA Form 9 was timely filed, the March 2014 rating decision denying service connection for depression did not become final. See 38 C.F.R. § 3.156(b). At the January 2021 Board hearing, the Veteran first asserted that depression is related to the (now) service-connected bilateral foot and left knee disabilities. Accordingly, the Board finds that remand is warranted for examination and opinion to help determine nature and etiology of any currently diagnosed depression, including an opinion as to whether such diagnosis is related to any service-connected disability. 25. Secondary Service Connection for Right Hip Disorder is Remanded. 26. Secondary Service Connection for Left Hip Disorder is Remanded. 27. Secondary Service Connection for Lumbar Spine Disorder is Remanded. At the January 2021 Board hearing, the Veteran also asserted that bilateral hip and lumbar spine disorders are related to the service-connected bilateral foot and left knee disabilities. The January 2021 Board hearing transcript reflects the Veteran requested a VA examination regarding the claimed bilateral hip and lumbar spine disabilities, including an opinion as to whether any diagnosed hip and/or lumbar spine disability is related to any service-connected disability. Accordingly, the Board finds that remand is warranted for examination and opinion to help determine nature and etiology of any currently diagnosed hip and/or lumbar spine disability, including an opinion as to whether any diagnosis is related to any service-connected disability. 28. Higher Initial Rating for Left Knee Disability is Remanded. The Veteran contends that the service-connected left knee disability has worsened in severity since the last examination. See January 2021 Board hearing. The Court has held that a veteran is entitled to a new VA examination where there is evidence, including his statements, that the disability has worsened since the last examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). As such, a new examination is needed to help determine the severity of and impairment caused by the service-connected left knee disability. The matters are REMANDED for the following action: 1. Schedule appropriate VA examinations to help determine whether the Veteran has a currently diagnosed psychiatric disorder to include depression and, if so, whether the depression is related to the service-connected disabilities; whether the currently diagnosed hip and/or lumbar spine disabilities are related to a service-connected disability; and to assist in determining the current severity and functional impairment of the left knee disability. The mental health examiner should provide the following opinions: A. Is it at least as likely as not (50 percent probability or greater) that depression was caused by the service-connected bilateral foot and left knee disabilities? B. Is it at least as likely as not (50 percent probability or greater) that depression was worsened in severity beyond a normal progression by the service-connected bilateral foot and left knee disabilities? The orthopedic examiner should examine the service-connected left knee disability to assess current symptoms, findings, and functional limitations. The orthopedic examiner should offer the following opinions: A. Is it at least as likely as not (50 percent probability or greater) that a right hip, left hip, and/or lumbar spine disability was caused by the service-connected bilateral foot and left knee disabilities? B. Is it at least as likely as not (50 percent probability or greater) that a right hip, left hip, and/or lumbar spine disability was worsened in severity beyond a normal progression by the service-connected bilateral foot and left knee disabilities? J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Tenney, 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.