Citation Nr: 21024511 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 17-20 827 DATE: April 23, 2021 ORDER Entitlement to a 20 percent disability rating for left foot surgical scarring of 4th and 5th toes is granted. Entitlement to a 20 percent disability rating for right foot surgical scarring of 4th and 5th toes is granted. FINDINGS OF FACT 1. The preponderance of the evidence indicates that the Veteran’s service-connected left foot surgical scarring of the 4th and 5th toes is painful and unstable. 2. The preponderance of the evidence indicates that the Veteran’s service-connected right foot surgical scarring of the 4th and 5th toes is painful and unstable. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 20 percent disability rating for left foot surgical scarring of 4th and 5th toes have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Codes (DC) 7800-7805. 2. The criteria for entitlement to a 20 percent disability rating for right foot surgical scarring of 4th and 5th toes have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DCs 7800-7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from March 1998 to June 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision of a VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a March 2021 hearing before the Board of Veterans’ Appeals (Board). Increased Rating 1. and 2. Entitlement to a compensable disability rating for left foot surgical scarring of 4th and 5th toes and entitlement to a compensable disability rating for right foot surgical scarring of 4th and 5th toes The Veteran asserts that their service-connected bilateral foot scar disabilities are more severe than is reflected by their current evaluations. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates that rating criteria; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. However, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran’s scars are rated as noncompensable (zero percent disabling) under DC 7805. Under DC 7805, other disabling effects not considered under diagnostic codes 7800-7804 are rated under an appropriate diagnostic code. 38 C.F.R. § 4.118, DC 7805. DC 7800 applies to scars of the head, face, or neck, and it is therefore not applicable in this case. Since August 13, 2018, DC 7801 is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, which are associated with underlying soft tissue damage. 38 C.F.R. § 4.118. DC 7801 was otherwise unchanged by the August 13, 2018, amendments. Under DC 7804, a 10 percent rating is assigned for one or two scars that are unstable or painful. A 20 percent rating is assigned for three or four scars that are unstable or painful and a 30 percent rating is warranted for five or more scars that are unstable or painful. This is the highest rating available under this DC. In addition, if one or more scars are both painful and unstable, 10 percent will be added to the evaluation based on the total number or unstable or painful scars. 38 C.F.R. § 4.118, DC 7804, Note (2). The Board has considered all potential diagnostic codes and finds DC 7804 to be the diagnostic code most favorable to the Veteran. In March 2016, the Veteran filed a claim for service connection for bilateral foot conditions. During the Veteran’s August 2016 VA examination for foot conditions, the VA examiner noted one scar on each foot, measuring 2 centimeters (cm) by 0.25 cm. Both scars were found to be stable, not painful, and nontender. In an April 2017 statement in support of the claim, the Veteran asserted that the scars were unstable and painful. The scars caused difficulty with walking and socks and shoes rubbed the scars and caused additional pain. The Veteran did not understand how the VA examiner concluded that the scars were neither painful nor unstable. During the Veteran’s March 2021 Board hearing, the Veteran testified that the scars were extremely painful. The Veteran was forced to walk with an altered gait to minimize the pain, and had to change jobs to avoid being on the feet for extended periods. The Veteran also testified about regularly applying bandages to the feet and wrapped the feet so that they did not “bleed all day long.” Bandages were changed daily. The Board finds the Veteran’s testimony credible, and the Veteran is competent to report symptoms capable of lay observation, such as pain and bleeding. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007 The Board notes that the VA treatment records in the claims file are minimal and do not clearly indicate whether the Veteran’s scars are painful or unstable. The Board finds that the preponderance of the evidence is in favor of finding that the Veteran’s service-connected scars are painful and unstable. While the August 2016 VA examination did not find evidence of painful or unstable scars, that VA examination was for foot conditions and not a VA examination specifically for scars. The Veteran testified under oath that the scars were painful and bled frequently. The Board finds the Veteran credible and competent to report these symptoms. Additionally, the Board finds the evidence of frequent bleeding to be commensurate with evidence of instability. Based on these facts, the Board finds that the preponderance of the evidence indicates that the Veteran’s service-connected scars are painful and unstable. Under DC 7804, one to two scars that are unstable or painful are to be rated as 10 percent disabling. As stated above, Note (2) states that if any of the scars are unstable and painful, as is the case here, an additional 10 percent is to be applied to the disability rating. Lastly, the Board notes that the scarring of each foot is rated as a separate disability. Accordingly, a 20 percent disability rating is granted for each foot for the period on appeal. As there is no evidence that each foot scar disability involves three or more scars or that the scars are deep and nonlinear, these are the highest disability ratings available, and no other diagnostic code results in a better outcome for the Veteran. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). Neither the Veteran nor the representative 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). Notably, the evidence and contentions of record do not suggest that the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has been raised in this case. Rice v. Shinseki, 22 Vet. App. 447 (2009). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Hicks, Associate 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.