Citation Nr: 21026409 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 18-00 815 DATE: May 3, 2021 ORDER Entitlement to an evaluation in excess of 10 percent effective July 17, 2017 for service-connected right foot surgical scar is denied. FINDING OF FACT The Veteran's right foot surgical scar is characterized as unstable or painful. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for the scar on the right foot characterized as unstable or painful have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§4.1, 4.2, 4.7, 4.118, Diagnostic Code (DC) 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 2003 to December 2003. This matter was most recently before the Board in February 2021. The February 2021 Board decision denied an increased rating prior to July 11, 2017 for his service-connected right foot surgical scar, granted a 10 percent disability rating effective July 11, 2017 for service-connected right foot surgical scar, and remanded a rating in excess of 10 percent for his service-connected right foot surgical scar. The remand was for the issuance of a Supplemental Statement of the Case by the Agency of Original Jurisdiction (AOJ). The matter has come back before the Board for final adjudication. 1. Right Foot Surgical Scar The Veteran is seeking a rating higher than 10 percent for his surgical scar. The Veteran is currently assigned a 10 percent rating for the period on appeal under DC 7804. 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's right foot surgical scar is rated under Code 7804. 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 DC, the amended DC 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, DC 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, DC 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, DC 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. DC 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. The evidence of record during the period on appeal includes an October 2017 VA examination, an April 2020 VA examination, an August 2020 VA examination, and medical records. The October 2017 VA examination noted the Veteran had one scar on his right foot that was unstable, with frequent loss of covering of the skin over the scar. The scar was noted to be six by 0.2 centimeters in size. During the examination, the Veteran reported that his scar callused from splitting open several times and he was unable to bend the last great toe joint fully due to tightness of the skin where the scar was located. There were no findings that the scar resulted in limitation of function or impacted his ability to work See October 2017 VA Scar/Disfigurement Disability Benefits Questionnaire (DBQ). 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). Next, the April 2020 VA examiner noted the Veteran had one scar on his right foot which was nine by 0.3 centimeters in size for an approximate total area of 2.7 centimeters squared. The scar was noted to be painful but not unstable. The Veteran's right foot scar did not result in limitation of function or limitation of motion; nor did it impact his ability to work. The examiner noted that the Veteran is unable to stand or walk for prolonged periods, and there is no limitation to sedentary work. See April 2020 VA Scars/Disfigurement DBQ. 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 that 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. Lastly, the August 2020 VA examiner noted the Veteran right foot scar was painful, to include tenderness to palpation, but was not unstable. The approximate total area of his scar was measured to be 4.5 centimeters squared. August 2020 VA Scars/Disfigurement DBQ. The Board finds that the preponderance of the evidence is against the assignment of a higher disability rating under DC 7804 because the Veteran only has one scar. As outlined above, a 20 percent disability rating under 7804 required three to four unstable or painful scars. The evidence does not establish that the Veteran has more than one scar nor does he assert there is more than one. Therefore, the Veteran is not entitled to a higher rating under DC 7804. In addition, the Veteran is not entitled to a higher rating under DC 7801 as the area of his scar is only 4.5 sq. cm. To meet a 20 precent disability rating under DC 7801, the scar area must be at least 77 sq cm but less than 465 sq. cm. Therefore, the Veteran is not entitlement to a higher rating under DC 7801. The Board has also considered the other DCs pertaining to scars. However, the Veteran's scar is not of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage. Therefore, DCs 7800 and 7801, both prior to and from August 13, 2018, are inapplicable. Finally, the evidence of record shows there are no other disabling effects not considered in a rating provided under DCs 7800-04 as contemplated under both pre- and post-August 13, 2018, DC 7805. Again, the record shows a single small painful scar of the Veteran's right foot that does not cause functional limitation. 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, 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). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Glaeser, 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.