Citation Nr: 22019366 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 17-30 155 DATE: April 1, 2022 ORDER Entitlement to a compensable disability rating for residual surgical scars of bilateral bunionectomy is denied. FINDING OF FACT The Veteran's residual surgical scars of bilateral bunionectomy measured 5 by .2 cm (right lower extremity) and 3.5 by 0.1 cm (left lower extremity; were not painful or unstable; and were not associated with underlying soft tissue damage. CONCLUSION OF LAW The criteria for a compensable disability rating for residual surgical scars of bilateral bunionectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1971 to May 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Board remanded the appeal for further development. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, 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. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a compensable disability rating for surgical scars, residuals of bilateral bunionectomy. The Veteran contends that he is entitled to a higher rating for his bilateral scars of the feet. Specifically, in a June 2017 statement, the Veteran has reported his "right toe is irritated when I wear shoes. My gait is negatively affected by my constant pain and discomfort." The Veteran's residual surgical scars of bilateral bunionectomy 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. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7805 was not changed by the August 13, 2018, amendments. Diagnostic Code 7805 instructs that any disabling effect(s), not considered in a rating provided under Diagnostic Codes 7800-04, should be evaluated under an appropriate Diagnostic Code. The Board finds that the evidence of record persuasively weighs against the assignment of a compensable rating for the Veteran's for residual surgical scars of bilateral bunionectomy. Turning to the evidence of record, the Veteran's service treatment records indicate that he underwent left and right toe bunionectomies in 1976 and 1978, respectively, which resulted in surgical scars. The Veteran underwent a VA scars examination in May 2015. During the May 2015 VA scars examination, the examiner found that none of the scars of the trunk or extremities to be painful or unstable. The examiner noted there to be scars of the right and left lateral foot, which were well healed, non-tender and non-adherent. The right lower extremity scar measures 2.5 cm in length, and the left lower extremity scar measures 5 cm in length. Neither scar was found to be tender to palpation, unstable under inspection, or have underlying soft tissue damage. During a March 2017 VA scars examination, the examiner found that none of the scars of the trunk or extremities to be painful or unstable. The examiner noted there to be scars of the right and left lateral foot. The right lower extremity scar measures 2.5 cm in length, and the left lower extremity scar measures 5 cm in length. Neither scar was found to be tender to palpation, unstable under inspection, or have underlying soft tissue damage. The Veteran underwent another VA scar examination in December 2019. The examiner reported that Veteran states he has a lot of pain in the right big toe. As a result states he walks on the outside of his foot to avoid putting pressure on the big toe. He has pain with ambulation, no pain when sitting. Doesn't need any type of assistive device. He goes to podiatry on a regular basis. He also sees vascular surgery every 6 months for peripheral vascular disease as he had a right femoral endarterectomy in 2017. He puts lotion on his feet every night after showering. As far as the scars themselves go, he denies any instability. They do not open up or bleed. Denies any pain over the scars themselves. He only has pain on the top of the right big toe with ambulation. Denies any flare-ups of the scars. During the December 2019 VA examination, the examiner found the condition of the Veteran's scars to have stayed the same. The examiner found that none of the scars of the trunk or extremities to be painful or unstable. The examiner noted there to be scars of the right and left lateral foot. The right lower extremity scar measures 5 by .2 cm, and the left lower extremity scar measures 3.5 by 0.1 cm. Neither scar was found to be tender to palpation, unstable under inspection, or have underlying soft tissue damage. The total area for the right lower extremity scar was 1.0 cm and the total area of the left lower extremity scar was .35 cm. The examiner remarked that the scars on both feet were stable, nonadherent and nontender on examination. There was no evidence of underlying tissue loss. The left foot was asymptomatic and the right foot only demonstrated pain on palpation of the dorsum of the hallux which was not over the scar. The Veteran denied any symptoms concerning the scars. He had no flare-ups of the scars and no functional loss or function impairment secondary to the bunionectomy scars. The examiner concluded that the Veteran had no impairments secondary to the bunionectomy scars. VA treatment records do not contain any evidence of complaints related to his bilateral bunionectomy scars. Based on the foregoing, the evidence is against finding that a compensable rating is warranted for residual surgical scars of bilateral bunionectomy. The scars are neither painful nor unstable. Further, the record does not reflect that the Veteran has any other disabling effects associated with the scars, or that the scars interfere with use of his feet. As there is no evidence of any other disabling effects associated with any scar, a compensable rating is not warranted in this case. 38 C.F.R. §§ 4.3, 4.7, 4.31, DC 7805. The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran's residual surgical scars of the bilateral bunionectomy are not of the head, face, or neck; are not deep and nonlinear; and are not associated with underlying soft tissue damage. Although they are superficial and not associated with underlying soft tissue damage, they do not cover an area or areas of 144 square inches or greater. Moreover, the Veteran's residual surgical scars of bilateral bunionectomy are not unstable or painful. Therefore, Diagnostic Codes 7800, 7801, 7802, and 7804, both prior to and from August 13, 2018, are inapplicable. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include generalized foot pain, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and medical records do not show, that the Veteran's residual surgical scars of bilateral bunionectomy are manifest by any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04. Additionally, while the Veteran reports foot pain, the evidence indicates that he is reporting generalized foot pain and not pain specific to the service-connected scars. Rather, the medical evidence indicates that the pain is attributed to his service-connected bilateral hallux valgus with bunionectomy. For the above reasons, a compensable disability rating for residual surgical scars of bilateral bunionectomy is not warranted. The evidence persuasively weighs against the claim and the benefit of the doubt doctrine is not for application. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application), 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues not raised by the claimant or reasonably raised by the evidence of record). G. Jackson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor, 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.