200417-78663 ( 2021 )

Citation Nr: AXXXXXXXX
Decision Date: 07/30/21 Archive Date: 07/30/21
DOCKET NO. 200417-78663
DATE: July 30, 2021
ORDER
An initial rating of 10 percent for the Veteran's left foot scars is granted.
THE VETERAN'S CONTENTIONS
The Veteran seeks a higher rating for his left foot scars. He contends that a minimum evaluation of 10 percent is warranted as his scars are painful, especially when walking or whenever anything touches the top of his foot. See April 2019 request for higher-level review; April 2020 VA Form 10182, Notice of Disagreement (NOD); December 2020 Brief.
FINDING OF FACT
The Veteran has two scars of the left foot: one measures five and one-half centimeters and the second one measures five centimeters.
CONCLUSION OF LAW
The criteria for an initial disability rating of 10 percent for left foot scars are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.118, DCs 7800-7805.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the Army from March 1986 to March 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).
On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law created a new framework for veterans dissatisfied with Department of Veterans Affairs (VA)'s decisions on their claims to seek review.
The Veteran appealed the June 2019 rating decision to the Board via an April 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and requested the direct review lane. Accordingly, in adjudicating this claim, the Board may consider evidence associated with the record through the June 12, 2019 rating decision on appeal.
The Veteran has two scars on his left foot that are currently rated as noncompensable under DC 7802 and DC 7805. See 38 C.F.R. § 4.118, DC 7800-7805.
During the pendency of this appeal, the applicable rating criteria for scars, found at 38 C.F.R. § 4.118, were amended. When regulations are revised during the course of an appeal, the Board is generally required to consider the claim in light of both the former and revised schedular criteria and to apply the regulation more favorable to the Veteran. The new rating criteria, however, may be applied only prospectively from the effective date of the change forward, unless the regulatory change specifically permits retroactive application. VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (emphasis added). The Board has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). Thus, the Board has considered all applicable criteria in evaluating the Veteran's claim.
Prior to August 13, 2018
DC 7800 provides for burn scars of the head, face or neck, scars of the head, face or neck due to other causes, or other disfigurement of the head, face, or neck. 38 C.F.R. § 4.118, DC 7800. Under DC 7800, a 10 percent rating is warranted for a scar with one characteristic of disfigurement. A 30 percent rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A 50 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. An 80 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement.
Note (1) to DC 7800 provides that the eight characteristics of disfigurement for purposes of evaluation are: a scar five or more inches in length; a scar at least one-quarter inch wide at the widest part; surface contour of the scar elevated or depressed on palpation; a scar adherent to the underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches; skin texture abnormal in an area exceeding six square inches; underlying soft tissue missing in an area exceeding six square inches; and skin indurated and inflexible in an area exceeding six square inches. 38 C.F.R. § 4.118.
Under the DC 7801, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear are evaluated as: area or areas of 144 square inches (929 sq. cm) or greater (40 percent); area or areas of at least 72 square inches (465 sq. cm) but less than 144 square inches (929 sq. cm) (30 percent); area or areas of at least 12 square inches (77 sq. cm) but less than 72 square inches (465 sq. cm) (20 percent); and area or areas of at least 6 square inches (39 sq. cm) but less than 12 square inches (77 sq. cm) (10 percent).
Under the DC 7802, scars not of the head, face or neck, which are superficial and nonlinear are granted a 10 percent rating if they cover an area of 144 square inches or greater. 38 C.F.R. § 4.118, DC 7802.
Under DC 7804, one or two scars that are unstable or painful warrant a 10 percent rating. A 20 percent rating requires three or four scars that are unstable or painful. A 30 percent rating requires five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an additional rating under DC 7804, when applicable. 38 C.F.R. § 4.118, DC 7804.
Under DC 7805, any disabling effects of other scars (including linear scars), and other effects of scars rated under DCs 7800, 7801, 7802, and 7804 not considered in a rating provided under DCs 7800-7804 are to be rated under an appropriate DC. 38 C.F.R. § 4.118, DC 7805.
Since August 13, 2018
Effective August 13, 2018, VA amended its regulations governing skin disabilities. VA's intent is that 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. 83 Fed. Reg. 32592 (July 13, 2018).
DC 7800 remained the same. DC 7801 was amended to remove "deep and nonlinear scars" which was replaced with "underlying soft tissue damage." DC 7802 was amended to remove "superficial and nonlinear" and was replaced with "not associated with underlying soft tissue damage."
Note (1) now provides that for purposes of DCs 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk.
The midaxillary line divides the anterior trunk from the posterior trunk.
Note (2) changed to a separate evaluation may be assigned for each affected zone of the body. Combine the separate evaluations under § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code.
DCs 7804 and 7805 were unaffected by the recent revisions.
The August 2017 Disability Benefits Questionnaires (DBQs) showed two scars on the left foot: 1) left foot healed scar from what the Veteran reported as the initial injury measuring five and one-half centimeters, which is superficial and non-linear; and 2) a healed scar from what the Veteran reported as due to screw removal measuring five centimeters which is linear. See August 2017 Foot Conditions DBQ; August 2017 Scars/ Disfigurement DBQ.
The examiner noted "no tenderness on exam over scar but does flinch above scar level." See August 2017 Foot Conditions DBQ. The August 2017 Scars/ Disfigurement DBQ noted that both scars are stable.
As the Veteran contends that his scars are painful, and the examiner noted that the Veteran flinched upon examination, the Board resolves doubt in the Veteran's favor and finds that a 10 percent rating under DC 7804 for two painful scars.
The Board has considered both the former and revised rating criteria for scars. After a review of the evidence, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's scars as he does not have more than two scars; the scars are not on the head, face, or neck; and they measure less than 39 square centimeters. See August 2017 Foot Conditions DBQ; August 2017 Scars/ Disfigurement DBQ; 38 C.F.R. § 4.118, DCs 7800-7805.
S.C. Krembs
Veterans Law Judge
Board of Veterans' Appeals
Attorney for the Board C. Samuelson, 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.