MOUTH INJURIES OF

THOMAS L. ENGLISH · 2026 · Case ID: 26002220

MIXED

Summary

The veteran, who served in the U.S. Navy from January 1995 to August 2000, appeals the denial of increased ratings for lower back condition, left lower extremity radiculopathy, and right lower extremity radiculopathy, as well as an initial rating for a left foot scar. The Board granted service connection for residuals of an orthognathic surgery with jaw pain, finding the evidence in relative equipoise and applying the benefit of the doubt. For the lower back condition, the Board granted an initial 20 percent rating for the period of June 1, 2012, to October 6, 2019, inferring that the Veteran's range of motion limitations would have supported this rating, but denied an increased rating thereafter due to lack of evidence for more severe limitations. The Board denied increased ratings for left and right lower extremity radiculopathy, finding the evidence did not support more than mild paralysis, citing normal reflexes, sensation, and muscle strength in examinations. The Board granted an earlier effective date of June 1, 2012, for service connection for a painful left foot scar, noting the Veteran's initial claim and the presence of a painful scar in a VA examination, but denied an increased rating for the scar, finding it did not meet the criteria for higher evaluations under the applicable diagnostic codes.

Rationale

Evidence in relative equipoise; Benefit of the doubt applied; Competent and credible testimony regarding jaw pain

Service Branch

UNITED STATES NAVY

Special Benefit

EARLIER EFFECTIVE DATE

Docket No.

15-15 493

Full Decision Text

Citation Nr: 26002220
Decision Date: 02/18/26 Archive Date: 02/18/26

DOCKET NO. 15-15 493
DATE: February 18, 2026

ORDER

Service connection for residuals of an orthognathic surgery with jaw pain is granted.

From June 1, 2012, to October 6, 2019, an initial 20 percent rating for a lower back condition is granted.

From October 7, 2019, an increased rating in excess of 20 percent for a lower back condition is denied.

From October 7, 2019, an increased rating in excess of 10 percent for left lower extremity radiculopathy is denied.

From October 7, 2019, an increased rating in excess of 10 percent for right lower extremity radiculopathy is denied.

An earlier effective date of June 1, 2012, for service connection for a left foot scar is granted.

An initial rating in excess of 10 percent for a left foot scar is denied.

FINDINGS OF FACT

1. The probative evidence of record is at least in relative equipoise as to whether the Veteran's jaw pain is causally related to her in-service jaw surgery.

2. The Board will infer (as is not inconsistent with the rest of the evidence) that the missing measurements from the January 2013 VA examination would have supported an increased 20 percent disability rating for the Veteran's back condition for the appellate period starting on June 1, 2012.

3. The probative evidence of record does not support a finding that the Veteran's forward flexion of the thoracolumbar spine is limited to 30 degrees or less, even when accounting for flare-ups and repeated use over time. Additionally, the record does not support a finding that the Veteran has ankylosis of the thoracolumbar spine or symptoms that approximate functional ankylosis.

4. Accordingly, the Board finds that the probative evidence of record does not support a finding that the Veteran's radiculopathy of the right lower extremities produced more than mild paralysis.

5. Accordingly, the Board finds that the probative evidence of record does not support a finding that the Veteran's radiculopathy of the left lower extremities produced more than mild paralysis.

6. The Veteran filed her claim for service connection for a left foot condition on June 1, 2012. The Board also notes that the January 2013 VA examination indicates that the Veteran had a painful scar on her left foot.

7. The probative evidence of record, including multiple VA examinations, does not support a finding that the Veteran's left foot scar measures 77 sq. cm.

CONCLUSIONS OF LAW

1. The criteria for the establishment of service connection for residuals of an orthognathic surgery with jaw pain have been met.?38 U.S.C. §§ 1110, 1131, 5107(b);?38 C.F.R. §§ 3.303, 3.310.?

2. From June 1, 2012, to October 6, 2019, the criteria for an initial 20 percent rating for a lower back condition have been?met.?38?U.S.C. §?1155;?38?C.F.R. §?4.124a, DC 5237.

3. From October 7, 2019, the criteria for an increased rating in excess of 20 percent for a lower back condition have not been?met.?38?U.S.C. §?1155;?38?C.F.R. §?4.124a, DC 5237.

4. From October 7, 2019, the criteria for an initial 20 percent rating for left lower extremity radiculopathy have not been?met.?38?U.S.C. §?1155;?38?C.F.R. §?4.124a, DC 8520.

5. From October 7, 2019, the criteria for an initial 20 percent rating for right lower extremity radiculopathy have not been?met.?38?U.S.C. §?1155;?38?C.F.R. §?4.124a, DC 8520.

6. The criteria for entitlement to an earlier effective date of June 1, 2012, for service connection for left foot scars have been met.?38 U.S.C. §§ 5110, 5107;?38 C.F.R. §§ 3.303, 3.320, 3.400.

7. From October 7, 2019, the criteria for an increased rating
. From October 7, 2019, the criteria for an initial 20 percent rating for right lower extremity radiculopathy have not been?met.?38?U.S.C. §?1155;?38?C.F.R. §?4.124a, DC 8520.

6. The criteria for entitlement to an earlier effective date of June 1, 2012, for service connection for left foot scars have been met.?38 U.S.C. §§ 5110, 5107;?38 C.F.R. §§ 3.303, 3.320, 3.400.

7. From October 7, 2019, the criteria for an increased rating in excess of 20 percent for a left foot scar have not been?met.?38?U.S.C. §?1155;?38?C.F.R. §?4.124a, DC 7804.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Navy from January 1995 to August 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

The Board remanded the Veteran's claims for additional development in October 2018, May 2023, and March 2024 for additional development.

1. Service connection for residuals of an orthognathic surgery with jaw pain is granted.

Legal Criteria

To prevail on the issue of?service?connection?there must be evidence of a current disability, in-service?incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during?service. See Shedden v. Principi,?381 F.3d 1163, 116667 (Fed. Cir. 2004).?Service?connection?may also be established under?38 C.F.R. § 3.303?(b) for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after?service?must have had their onset in?service; and?service?connection?may be established by evidence of continuity of symptomatology.?38 U.S.C. §§ 1101, 1110, 1112;?38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a).??

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence persuasively favors the claim or is in approximate balance, with the Veteran prevailing in either event, or whether the evidence persuasively weighs against the claim, in which case the claim is denied. In other words, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (2021).?

Factual Background

The Veteran underwent oral surgery during service in July 1995, August 1999 and April 2000 to correct her overbite. See service treatment records.

The Veteran was afforded a September 2019 VA examination during which she reported jaw soreness and an inability to open her mouth for years. The Veteran indicated that this has been an ongoing issue since undergoing surgery during service. The conducting examiner indicated that there was no competent evidence to render a diagnosis of jaw disability. As a rationale, the examiner explained that the Veteran's complaints are due to periodontal disease. The examiner noted that the Veteran has not maintained dental hygiene.

Analysis

The record indicates that the Veteran has symptoms of jaw soreness and swelling following service. Accordingly, the first element of service connection has been met.

The record indicates that the Veteran underwent several surgeries on her jaw during service. Accordingly, the second element of service connection has been met.

What remains for consideration is whether the Veteran's current symptoms of jaw pain and soreness are causally related to her in-service jaw surgery.

The Board finds the Veteran to be competent and credible to report that she experienced jaw pain and soreness following her surgery and that the symptoms have worsened since exiting from service. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007).

The Board notes that the November 2019 VA examiner indicated that the Veteran's claimed condition was not causally related to service.

Here, the Board finds the probative evidence of record to be at least in
jaw during service. Accordingly, the second element of service connection has been met.

What remains for consideration is whether the Veteran's current symptoms of jaw pain and soreness are causally related to her in-service jaw surgery.

The Board notes that the November 2019 VA examiner indicated that the Veteran's claimed condition was not causally related to service.

Here, the Board finds the probative evidence of record to be at least in relative equipoise as to whether the Veteran's jaw pain is causally related to her in-service jaw surgery.

Accordingly, and granting the Veteran the benefit of the doubt, the Board finds that service connection is granted.

2. From June 1, 2012, to October 6, 2019, an initial 20 percent rating for a lower back condition is granted.

Legal Criteria

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.

A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. Id.

A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id.

A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or, for favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id.

Any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. Id. at Note (2). The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. Id. All measured ranges of motion are to be rounded to the nearest five degrees. Id. at Note (4).

For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5).

In the context of examinations evaluating functional loss in the musculoskeletal system under diagnostic codes based upon limitation of motion, when pain is associated with movement, to be adequate for rating purposes an examination must address whether pain could significantly limit functional ability during flare-ups. See Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011), DeLuca v. Brown, 8 Vet. App. 202, 206 (
phagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5).

In the context of examinations evaluating functional loss in the musculoskeletal system under diagnostic codes based upon limitation of motion, when pain is associated with movement, to be adequate for rating purposes an examination must address whether pain could significantly limit functional ability during flare-ups. See Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011), DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Mere lack of occasion to observe the joint during a flare-up or after prolonged use is an insufficient basis for finding it speculative to respond. Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017).

Factual Background

The Veteran was afforded a January 2013 VA examination for her back condition. Upon range of motion testing of the lumbar spine, the Veteran displayed 90 degrees of forward flexion, 30 degrees or greater of extension, 30 degrees of left lateral rotation, 30 degrees of right lateral rotation, 30 degrees of left lateral flexion, and 30 degrees of right lateral flexion.

The Veteran was able to perform three repetitions without any additional loss of range of motion.

The examiner noted that the Veteran reported flare-ups of the back but did not indicate that the examination was being conducted during a flare-up. The examiner also did not report whether the Veteran was being examined after repeated use over a period of time.

Analysis

The Board recognizes that the January 2013 VA examination is defective, considering there was no estimate of ROM during flare-ups or with repetitive use over time. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). Accordingly, the Board cannot assign probative value to this opinion.

The Board will not place the burden on the Veteran because the VA examiner did not obtain all the necessary information at the time of the examination. Rather, the Board will infer that any missing information from the VA examinations would have supported a 20 percent rating for the period on appeal.

Accordingly, from June 1, 2012, to October 6, 2019, an initial 20 percent rating for a lower back condition is granted.

However, the Board also finds that a still higher (40 percent) disability rating is not warranted for any portion of the appellate period. The record does not indicate that the Veteran's forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or that she has favorable ankylosis of the entire thoracolumbar spine.

3. From October 7, 2019, an increased rating in excess of 20 percent for a lower back condition is denied.

Factual Background

The Veteran was provided a VA back examination in October 2019. Upon range of motion testing of the lumbar spine, the Veteran displayed 60 degrees of forward flexion, 20 degrees or greater of extension, 15 degrees of left lateral rotation, 20 degrees of right lateral rotation, 15 degrees of left lateral flexion, and 20 degrees of right lateral flexion. The examiner noted that the ROM did not contribute to functional loss, and that the pain noted on exam did not result/cause functional loss. In Section 3D, for flare-ups, the examiner noted that the examination was not conducted during any flare-ups. The examiner found that pain significantly limited functional ability. When asked to describe the functional loss in terms of ROM, the examiner provided identical ROM measurements to those obtained in the initial ROM testing, noting that pain did not cause any functional loss.

The Veteran was provided a VA back examination in January 2024. Upon range of motion testing of the lumbar spine, the Veteran displayed 85 degrees of forward flexion, 25 degrees or greater of extension, 25 degrees of left lateral rotation, 25 degrees of right lateral rotation, 25 degrees of left lateral flexion, and 25 degrees of right lateral flexion. Passive range of motion resting was the same as active. The Veteran was unable to perform repetitive use testing with at least three repetitions due to fear of pain.

The Veteran was not being examined during a flare-up or immediately after repeated use over time. The conducting examiner opined that the Veteran's range of motion would be limited as follows during a flare-up or immediately after repeated use over time: 85 degrees of forward flexion, 25 degrees or greater of extension, 25 degrees of left lateral rotation,
forward flexion, 25 degrees or greater of extension, 25 degrees of left lateral rotation, 25 degrees of right lateral rotation, 25 degrees of left lateral flexion, and 25 degrees of right lateral flexion. Passive range of motion resting was the same as active. The Veteran was unable to perform repetitive use testing with at least three repetitions due to fear of pain.

The Veteran did not have ankylosis of the thoracolumbar spine. The Veteran had IVDS of the thoracolumbar spine, but it did not result in any episodes of bedrest.

Analysis

The probative evidence of record does not support a finding that the Veteran's forward flexion of the thoracolumbar spine is limited to 30 degrees or less, even when accounting for flare-ups and repeated use over time. Rather, the record indicates that the forward flexion of the Veteran's spine is limited to 85 degrees.

Additionally, the record does not support a finding that the Veteran has ankylosis of the thoracolumbar spine or symptoms that approximate functional ankylosis.

As such, the Board finds that the probative evidence of record does not support a finding that the Veteran meets the criteria for an increased rating in excess of 20 percent for her back condition.

4. From October 7, 2019, an initial rating in excess of 10 percent for left lower extremity radiculopathy is denied.

5. From October 7, 2019, an initial rating in excess of 10 percent for right lower extremity radiculopathy is denied.

Legal Criteria

Under DC 8520, for the sciatic nerve a 10 percent disability rating is assigned for mild, incomplete paralysis; a 20 percent disability rating is assigned for moderate, incomplete paralysis; a 40 percent disability rating is assigned for moderately severe, incomplete paralysis; and a 60 percent rating is assigned for severe, incomplete paralysis with marked muscular atrophy.

Terms such as "mild", "moderate", and "severe" are not defined in the rating schedule. Accordingly, within these confines set down by the caselaw from the United States Court of Appeals for Veterans Claims (Court), the Board will use relevant dictionary definitions of "mild," "moderate," or "severe" in analyzing whether the Veteran's entitlement to higher ratings. See Johnson v. Wilkie, 30 Vet. App. 245, 255 (2018).

In this regard, the Merriam-Webster Dictionary definition of "mild" includes "moderate in action or effect," "not being or involving what is extreme," and "not severe" or temperate. The Merriam-Webster Dictionary definition of "moderate" includes "temperate," "tending toward the mean or average amount or dimension," "not violent, severe, or intense," and "limited in scope or effect." Finally, the Merriam-Webster Dictionary definition of "severe" includes "causing discomfort or hardship," "very painful or harmful," "requiring great effort," and "of a great degree." See also 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1303.

Additionally, the term "marked" is not defined in Diagnostic Code 8520, nor within any relevant regulation. "Marked," as an adjective, is defined as "having a distinctive or emphasized character." Severe, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/marked, Definition 2 (last visited July 14, 2021). Thus, the associated muscle atrophy must be distinct or emphasized.

Factual Background

The Veteran was afforded an October 2019 VA examination during which the conducting examiner noted that her radiculopathy produced mild constant pain, paresthesias and/or dysesthesias, and numbness of the bilateral lower extremities. The conducting examiner opined that the Veteran's radiculopathy of the bilateral lower extremities was mild in severity. The examiner further noted that the Veteran does not use any assistive devices as a normal mode of locomotion. Deep tendon reflexes were normal. Sensation to light touch was normal. The Veteran displayed normal muscle strength of the bilateral lower extremities.

The Veteran
14, 2021). Thus, the associated muscle atrophy must be distinct or emphasized.

Factual Background

The Veteran was afforded a January 2024 VA examination during which the conducting examiner noted that her radiculopathy did not produce constant pain, intermittent pain, paresthesias and/or dysesthesias, or numbness of the bilateral lower extremities. The examiner indicated that the Veteran did not have signs or symptoms of radiculopathy. The examiner further noted that the Veteran does not use any assistive devices as a normal mode of locomotion. Deep tendon reflexes were normal. Sensation to light touch was normal. The Veteran displayed normal muscle strength of the bilateral lower extremities.

Analysis

The Board notes that the October 2019 VA examiner indicated that the Veteran's radiculopathy of the bilateral lower extremities was mild in severity. Additionally, both the October 2019 and January 2024 VA examiners indicated that the Veteran's muscle strength, deep tendon reflexes, and sensation to light touch were normal. The record indicates that the Veteran did not require an assistive device for locomotion.

Accordingly, the Board finds that the probative evidence of record does not support a finding that the Veteran's radiculopathy of the bilateral lower extremities produced more than mild paralysis.

As such, an initial rating in excess of 10 percent for bilateral lower extremity radiculopathy is denied.

6. An earlier effective date of June 1, 2012, for service connection for a left foot scar is granted.

Legal Criteria

The assignment of?effective?dates?of awards is generally governed by?38 U.S.C. § 5110?and?38 C.F.R. § 3.400. 38?U.S.C. § 5110(a) provides that "the?effective?date?of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be?earlier?than the?date?of receipt of application therefor."

Similarly,?38 C.F.R. § 3.400?(b)(2) provides that for disability compensation for direct?service?connection, the?effective?date?is the "[d]ay following separation from active?service?or?date?entitlement arose if claim is received within 1 year after separation from?service; otherwise,?date?of receipt of claim, or?date?entitlement arose, whichever is later."

With regard to the?date?of entitlement, the term?date?entitlement arose is the?date?when the claimant met the requirements for the benefits sought, on a facts found basis.?38 U.S.C. § 5110?(a); McGrath v. Gober,?14?Vet. App.?28, 35?(2000). These facts found include the?date?the disability first manifested and the?date?entitlement to benefits was authorized by law and regulation. See generally?38 C.F.R. § 3.400. For instance, if a claimant filed a claim for benefits for a disability?before?he actually had the disability, the?effective?date?for benefits can be no?earlier?than the?date?the disability first manifested. Ellington v. Peake,?541 F.3d 1364, 1369-70?(Fed. Cir. 2008).

Factual Background

The Veteran's service treatment records indicate that she underwent surgery on her left foot in March 1998.

The Veteran filed her informal claim for a left foot condition on June 1, 2012.

The Veteran was afforded a January 2013 VA examination during which the conducting examiner noted that she had a scar on her left foot. The conducting examiner noted that the Veteran had left foot pain from her prior foot surgeries and scar.

The RO granted a separate evaluation for a left foot scar with an evaluation of 10 percent effective October 7, 2019, in a January 2020 rating decision.

3d 1364, 1369-70?(Fed. Cir. 2008).

Factual Background

The Veteran's service treatment records indicate that she underwent surgery on her left foot in March 1998.

The Veteran filed her informal claim for a left foot condition on June 1, 2012.

The RO granted a separate evaluation for a left foot scar with an evaluation of 10 percent effective October 7, 2019, in a January 2020 rating decision.

Analysis

The Board notes that the Veteran filed her claim for service connection for a left foot condition on June 1, 2012.

The Board also notes that the January 2013 VA examination indicates that the Veteran had a painful scar on her left foot.

As indicated above, the RO granted a separate evaluation for a left foot scar with an evaluation of 10 percent effective October 7, 2019, in a January 2020 rating decision. Thus, the Board finds that the left foot scar is considered a secondary manifestation of the Veteran's service-connected left foot condition for which she was seeking higher ratings.

Accordingly, the Board finds that the probative evidence of record supports a finding that the Veteran experienced symptoms of a painful left scar at the time she filed her initial claim.

As such, an earlier effective date of June 1, 2012, is granted for service connection of a left foot scar.

7. An initial rating in excess of 10 percent for a left foot scar is denied.

Legal Criteria

In evaluating skin and scar residuals, the Board notes that 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 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).

In this case, because the Veteran filed the claim before the August 13, 2018, effective date, the Board will consider whether either the old or new rating criteria are more favorable to the Veteran.

Under the old rating criteria, DC 7805 provided that other scars (including linear scars) and other effects of scars evaluated under DCs 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under DCs 7800-7804 under an appropriate Diagnostic Code. 38 C.F.R. § 4.118, DC 7805 (2017). The Board notes that 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 DCs 7800, 7801, 7802, or 7804." 38 C.F.R. § 4.118, DC 7805 (August 13, 2018).

The eight characteristics of disfigurement for the purposes of rating under 38 C.F.R. § 4.118 are: scar of 5 in. or more (13 or more centimeters (cm.)) in length; scar at least 1/4 in. (0.6 cm.) wide at its widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding 6 sq. in. (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 sq. in. (39 sq. cm.); underlying soft tissue missing in an area exceeding 6 sq. in. (39 sq. cm.); and skin indurated and inflexible in an area exceeding 6 sq. in. (39 sq. cm.). Id., Note (1).

The pre-amended DC 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. 38 C.F.R. § 4.118, DC 7801 (2017). In contrast, 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 (August 13, 2018). Both the old and new criteria provide that a 10 percent rating is awarded when the area of the scar(s) covers at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). A 20 percent rating is warranted when the area of the scar(s) covers at least 12 square inches (77 square centimeters) but less than 72 square inches (456 square centimeters). A 30 percent rating is warranted when the area of the scar(s) covers at least 72 square inches (456 square centimeters) but less than 144 square inches (929 square centimeters). A 40 percent rating is assigned when the area of the scar(s) covers at least 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, DC 7801. Note (1) to the pre-amended DC 7801 stated that a deep scar is one associated with underlying soft tissue damage.

Prior to August 13, 2018, DC 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 (August 13, 2018). Both versions state that a 10 percent disability rating is warranted when the area of the scar covers 144 square inches (929 square centimeters) or greater.

Under both the old and new rating criteria, DC 7804 provides disability ratings for scars that are unstable or painful. 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) states 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, an additional 10 percent should be added to the evaluation based on the total number of unstable or painful scars. Note (3) states that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this Diagnostic Code, when applicable. 38 C.F.R. § 4.118, DC 7804.

Under DC 7805, scars with disabling effects other than those evaluated under DCs 7800 through 7804 are to be rated under an applicable Diagnostic Code. 38 C.F.R. § 4.118, DC 7805.

Factual Background

The Veteran was then afforded an October 2019 VA examination during which the conducting examiner noted that she has one painful left foot scar. The examiner indicated that the Veteran's left foot scar is not unstable with frequent loss of covering of skin over the scar. The examiner noted that the Veteran's left foot scar measured 1.0 x 1.0 centimeters.

The Veteran was then afforded a January 2024 VA examination during which the conducting examiner noted that she has one painful left foot scar. The examiner indicated that the Veteran's left foot scar is not unstable with frequent loss of covering of skin over the scar. The examiner noted that the Veteran's left foot scar measured 2.0 x 1.0 centimeters.

Analysis

The Veteran
then afforded an October 2019 VA examination during which the conducting examiner noted that she has one painful left foot scar. The examiner indicated that the Veteran's left foot scar is not unstable with frequent loss of covering of skin over the scar. The examiner noted that the Veteran's left foot scar measured 1.0 x 1.0 centimeters.

Analysis

The Veteran is currently rated at 10 percent under DC?7804. The Board notes that this is the highest evaluation possible under DC 7804 for a veteran with one scar.

The Board finds that the Veteran does not meet the criteria for an increased 20 percent rating for her left foot scar under DC 7801 because the record does not support a finding that her scar measured at least 12 square inches but less than 72 square inches (456 square centimeters). Rather, the January 2024 VA examiner indicated that the Veteran's left scar measured 2.0 x 1.0 centimeters.

Thomas L. English

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Bahus, Alexander

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.

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