Citation Nr: 23015331 Decision Date: 03/14/23 Archive Date: 03/14/23 DOCKET NO. 19-03 342 DATE: March 14, 2023 ORDER For the increased rating period on appeal from March 2, 2016, a compensable rating for the service-connected residual scarring from a laceration to the left foot is denied. FINDINGS OF FACT 1. For the increased rating period on appeal from March 2, 2016, the service-connected residual scarring from a laceration to the left foot (scar on the left foot) has not manifested as deep, painful, or unstable scar, did not involve soft tissue damage, did not cover an area or areas of 144 square inches (929 square centimeters) or greater, and did not result in any disabling effects. 2. For the increased rating period on appeal from March 2, 2016, the pain on the left foot occurred is due to the service-connected left foot neuritis and service-connected left foot arthritis, and is not from the scar on the foot. CONCLUSION OF LAW For the entire increased rating period on appeal from March 2, 2016, the criteria for an increased (compensable) rating for the service-connected residual scarring from the scar on the left foot have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.20, 4.21, 4.118, Diagnostic Codes 7801, 7804, 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active service from May 1989 to May 1992. The instant case is on appeal to the Board of Veterans' Appeals (Board) from a Department of Veterans Appeals (VA) Regional Office (RO) rating decision that denied an increase to a compensable rating for the service-connected scar on the left foot. Disability Ratings Legal Authority 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 that 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). Where there is a question as to which of two ratings shall be applied, the higher rating 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. An appeal from the initial assignment of a disability rating requires consideration of the entire time period involved and contemplates staged ratings where warranted. Fenderson v. West, 12 Vet. App. 119 (1999). Hyphenated diagnostic codes may be used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. See 38 C.F.R. § 4.27. A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). From March 2, 2016, a Compensable Rating for the Service-Connected Residual Scarring from a Laceration to the Left Foot is Denied. The Veteran is currently service connected for residual scarring from a laceration to the left foot (scar on the left foot) with a noncompensable (0 percent) disability rating pursuant to Diagnostic Code 7805. After a review of all the evidence, lay and medical, the Board finds that a compensable disability rating is not warranted for any period. Diagnostic Codes 7800 to 7805 pertain to scar disabilities. Diagnostic Code 7800 involves scars of the head, face, or neck, which accordingly does not apply to the scar on the left foot. Diagnostic Code 7801 covers 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. A 10 percent rating is given for an area or areas of at least 6 square inches (77 sq. cm.) but less than 12 square inches (77 sq. cm.). A 20 percent rating is given for an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.). A 30 percent rating is given for an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.). A maximum 40 percent rating is given for an area or areas of 144 square inches (929 sq. cm.) or greater. Diagnostic Code 7802 covers burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with an underlying soft tissue damage. A sole (maximum) 10 percent rating is given for an area or areas of 144 square inches (929 sq. c.m.) or greater. Diagnostic Code 7804 covers scar(s) that are unstable or painful. A 10 percent rating is given for one or two scars that are unstable or painful. A 20 percent rating is given for three or four scars that are unstable or painful. A maximum 30 percent rating is given 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, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code where applicable. Diagnostic Code 7805 covers other scars and provides that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800 to 7804 should be rated under an appropriate diagnostic code. The Veteran is currently rated at Diagnostic Code 7805. The Veteran has asserted during the claim that the scar on the left foot disability is painful and, therefore, should result in a 10 percent rating pursuant to Diagnostic Code 7804. At a hearing for a compensable initial disability rating for the left scar on the foot disability (hearing in November 2008 and Board decision denying a compensable rating in January 2009) the Veteran testified to the scar on the left foot. The Veteran testified that the scar on the left foot is indescribable, very painful, throbs a lot, and leads to shooting pain, that the pain comes and goes, constantly, whether he is sitting or standing, and aches significantly. The laceration is at the top of the foot, almost between two toes. The Veteran reports that the scar on the left foot hurts every time that he has a shoe on it, and that a neurologist said he would always have to wear socks to protect the wound itself. Neurological testing showed he had neuritis and the doctor gave him a shoe to protect the scar on the left foot. The doctors gave the Veteran a pad to reduce the pressure on the left foot, so he will wear it at work. Standing was a little difficult because of the non-service-connected hallux valgus, but also because of pain that shoots up from the neuritis in the scar area. The Veteran has had to modify his actions at work and has had to adjust family responsibilities. As noted above, the Veteran is competent to report symptoms as they come through the senses, because this requires only personal knowledge, not medical expertise. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran is capable of reporting many symptoms, treatment, and to report a diagnosis by a doctor. The Veteran can report that he is in pain, but under the facts of this case where there is a foot disability under the site of the scar, the Veteran is not competent to provide an opinion as to the cause of the pain or the degree of injury, as applied to the Diagnostic Codes pertaining to scars. Concerning the Diagnostic Codes pertaining to scar(s), Diagnostic Code 7801 covers 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. The scar is on the foot, not the head, face, or neck. The persuasive weight of the evidence is against a finding that that the scar on the left foot has a burn or scar of other causes that is associated with underlying soft tissue damage, so the 10 percent rating for an area or areas of at least 6 square inches does not apply and the higher ratings increase the required area. See December 2012 VA Examination (documenting the length and width of the scar as 4 cm by 0.2 cm, which is 0.8 square centimeters). Diagnostic Code 7802 covers burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with an underlying soft tissue damage. A sole (maximum) 10 percent rating is given for an area or areas of 144 square inches (929 sq. cm.) or greater. As with Diagnostic Code 7801, the scar is on the foot, not the head, face, or neck. The persuasive weight of the evidence is against a finding that the area required for Diagnostic Code 7802 has been met. See December 2012 VA Examination. Pertaining to Diagnostic Code 7804, the code covers scar(s) that are unstable or painful. A 10 percent rating is given for one or two scars that are unstable or painful. The Board finds that the persuasive weight of the evidence is against a finding that the Veteran has a painful scar on the left foot. As noted previously, the Veteran contended at the November 2008 Board hearing that the scar on the left foot is painful. Also, in a December 2018 VA Form 9, the Veteran contested some of the points that had been made by the RO in the Statement of the Case. This included the Veteran's allegations that 1) the consultation with a private treatment provider (below) indicated painful scar tissue, 2) the VA examiner measured the scar and stated that was all he was required to do, and 3) VA mentioned that the June 2018 VA examination stated that the scar on the left foot was not painful or unstable, which was inaccurate, during a peripheral nerves examination, which was designed to examine neuritis and not pain to the scar. The Veteran concluded by saying that there is "foot pain" in which the Veteran is being compensated with neuritis and arthritis, but there is also still painful scar tissue. It is clear that the consultation with the private provider indicated foot pain and that there is scar tissue, but it is not clear that the VA examiner erred in conducting the examination. It is worth noting that every other provider who has examined the Veteran stated that there was no evidence of a painful scar. The fact that the June 2018 VA peripheral nerves examination was designed to examine neuritis does not mean that the examiner was not also able to provide an opinion on pain to the left scar also. The measurements and pain of any scar are asked on almost every VA examination. In support of the claim, the Veteran has brought a September 2015 private treatment record from a physician he saw for purposes of foot pain consultation, specified as top of foot scar. The September 2015 private treatment provider wrote that there was painful scar tissue on the left dorsal midfoot and ankle for about 2-3 years. The private treatment provider wrote that foot pain comes from a top of the foot scar. In June 2016, a VA examiner conducted a VA scars examination. The scarring was noted as residual scarring from a laceration to the left foot. The scar is on the extremities, not head, face, or neck. The scar was described as not painful and not unstable. The scar was not due to fire and was on the left lower extremity (left foot) and was linear 0.8 centimeters. After the examination was performed and new information had been received, a VA examiner was asked in July 2016 to give an opinion related to whether the examination documented a painful scar to the left foot. The July 2016 VA examiner stated that the VAX did not document a painful scar. Previous examination did not show a painful scar. Per the July 2016 VA examiner, a scar is either painful or it is notit does not become painful years later. The July 2016 VA examiner also stated that the Veteran was already service connected for neuritis of the left foot, which was related to the injury that covered the pain he was discussing. The record is clear that the Veteran experiences foot pain; however, the pain is not from the scar. As the July 2016 VA examiner pointed to the service-connected neuritis, the record also demonstrates that the Veteran has service-connected arthritis to the foot. In September 2005, a VA examiner also noted that the residual scarring had no tenderness. Other records in the claims file show complaints about the left foot, including arthritis, exostosis, and neuritis, but none address pain from the scar of the left foot. To the extent that the Veteran claims the original laceration or the scar specifically was causing pain, the persuasive weight of the evidence is against such a finding. The Veteran claimed in the former Board hearing that the scar bothered him since the laceration, but the Veteran did not file a claim for left foot scar in August 1992, when he filed a claim for service connection for the laceration of the left hand. There were two VA examinations around that time where he only complained of hand pain. The Veteran did file a claim for service connection for laceration to the left foot in August 1999. For these reasons, the Board finds that the persuasive weight of the evidence is that the scar is not painful. The Board acknowledges the Veteran's statements and the opinion by the private treatment provider; however, there are multiple VA examinations and a VA opinion that the scar on the left foot was not painful, and it was not initially claimed to be painful. Accordingly, Diagnostic Code 7804 cannot be used to provide an increased (compensable) disability rating. The remaining Diagnostic Code 7805 covers what will apply to the scar on the left foot. The finding required is that there is a scar or other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7804. The record shows that there were not disabling effects not considered in one of those codes. The record does not show that there are any other disabling effects. Diagnostic Code does not provide a compensable rating on its own (rather by analogy to the Diagnostic Code 7800-7804). Therefore, the appropriate rating is noncompensable (zero percent). After a review of all the evidence and the Diagnostic Codes pertaining to scars, the Board finds that the persuasive weight of the evidence is against a finding that a compensable rating is warranted; accordingly, the appeal must be denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.