Citation Nr: 22044934 Decision Date: 08/08/22 Archive Date: 08/08/22 DOCKET NO. 19-18 923 DATE: August 8, 2022 ORDER A 10 percent rating for scars of the left great toe and left thigh (skin graft scars) is granted. REMANDED Entitlement to a rating in excess of 10 percent for residuals of an injury to the left great toe, to include hallux valgus with degenerative arthritis, left fourth and fifth hammertoes, and left third toe contracture (left toe disability), is remanded. FINDING OF FACT The Veteran' skin graft scars are painful. CONCLUSION OF LAW The criteria for a 10 percent rating for skin graft scars have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1967 to June 1969, to include service in the Republic of Vietnam. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2018 Department of Veterans Affairs (VA) rating decision. In connection with this appeal, the Veteran testified at a hearing before the undersigned acting Veterans Law Judge in June 2022. A transcript of the hearing is of record. Additional evidence has been received following the May 2019 statement of the case, that is not accompanied by a waiver of agency of original jurisdiction (AOJ) review. However, the Board has determined that this evidence does not contain any treatment for the Veteran's skin graft scars, and therefore is not "pertinent" as defined at 38 C.F.R. § 20.1305(c). Accordingly, a remand for AOJ consideration is not required. Increased Rating 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. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran's skin graft scars are evaluated at a noncompensable rate under Diagnostic Code 7805. During the appeal period, changes were made to certain Diagnostic Codes under 38 C.F.R. § 4.118. Effective August 13, 2018, VA amended its regulations governing skin disabilities. 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 a veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 13, 2018). Under the old rating criteria, Diagnostic Code 7805 provided that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 to be evaluated under an appropriate Diagnostic Code. However, this Diagnostic Code is largely unchanged under the new amendments apart from the replacement of the phrase "(including linear scars)" with "and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, or 7804." Furthermore, Diagnostic Codes 7801 and 7802 remain unchanged for the evaluation of a single scar, as is the case with the Veteran's hernia scar. Under Diagnostic Code 7801, a 10 percent rating is assigned for scars not of the head, face, or neck that are deep and nonlinear with an area of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). A 20 percent rating is assigned for scars with an area of at least 12 square inches (77 square centimeters) but less than 72 square inches (465 square centimeters). A 30 percent rating is assigned for scars with an area of at least 72 square inches (465 square centimeters) but less than 144 square inches (929 square centimeters). A 40 percent rating is assigned for scars with an area of 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2018). Under Diagnostic Code 7802, a 10 percent rating is assigned for scars that are superficial and cover an area or areas of 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802. Under Diagnostic Code 7804, a 10 percent rating is assigned for one or two scars that are unstable of painful. A 20 percent rating is assigned for three or four scars that are unstable of painful. A 30 percent rating is assigned for five or more scars that are unstable or painful. If one or more scars are both unstable and painful, 10 percent is added to the evaluation based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7804. The Veteran asserted that he was entitled to a compensable rating for his skin graft scars. At the Board hearing, he testified that his skin graft scars were painful. At the April 2018 VA examination, the examiner indicated that the Veteran did not have any unstable scars or scars that measured an area greater than 39 square centimeters. The Veteran's left great toe scar measured 4 centimeters by 0.5 centimeters. As his left great toe scar was the result of a skin graft from his left thigh, presumably his left thigh scar had the same measurements, which would result in a total area of 4 square centimeters. Resolving reasonable doubt in the Veteran's favor, the Veteran's skin graft scars are painful, consistent with a 10 percent rating. The evidence of record does not show that the Veteran's skin graft scars are both painful and unstable. As such, a rating in excess of 10 percent under Diagnostic Code 7804 is not warranted. In addition, the Veteran's skin graft scars do not cover an area of at least 77 square centimeters, and therefore a rating in excess of 10 percent is not warranted under Diagnostic Code 7801. Finally, the Veteran's skin graft scars do not result in any limitation of function, and therefore a rating in excess of 10 percent is not warranted under Diagnostic Code 7805. Accordingly, the criteria for a 10 percent rating for skin graft scars have been met, and the claim is granted. REASONS FOR REMAND Regarding the increased rating claim for the Veteran's left toe disability, he was last afforded a VA examination in April 2018. At the June 2022 Board hearing, he testified that his left toe disability had worsened. He testified that he had deformity of the left foot and toes that impacted his ability to move around and resulted in falls. Accordingly, a remand is necessary in order to provide the Veteran a new VA examination for his left toe disability. The matter is REMANDED for the following action: 1. Obtain all outstanding VA and/or private medical records that pertain to the Veteran's left toe disability. 2. Then, schedule the Veteran for a VA examination to determine the current severity of his left toe disability. The examiner should assess the severity and any functional impairment resulting from the Veteran's left toe disability, both neurological and musculoskeletal. (continued on next page) The examiner should specifically address the Veteran's lay statements regarding the severity of his left toe disability. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berryman, 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.