Citation Nr: 0716434 Decision Date: 06/04/07 Archive Date: 06/18/07 DOCKET NO. 04-43 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a compensable rating for scars, residuals of a gunshot wound, of the right hand. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Celeste Farmer Krikorian, Associate Counsel INTRODUCTION The veteran served on active duty from July 1969 to July 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. FINDING OF FACT The veteran's residuals of a gun shot wound of the right hand are manifested by three scars on the hand and one at the graft site (upper forearm) used to repair the gun shot wound at the time of injury, none of which measures more than 3 inches, and all of which are flat, superficial, stable, non- tender and non-painful on objective examination, without adherence to underlying tissue, chronic skin changes, or limitation of motion or function as a result of the scars. CONCLUSION OF LAW The schedular criteria for an initial compensable disability rating for scars, residuals of a gun shot wound of the right hand, are not met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. Part 4, § 4.118, Diagnostic Codes 7800-7805 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In December 2004, the veteran appealed the April 2003 rating decision that assigned the initial zero percent rating for scars of the right hand due to residuals of a gun shot wound, effective from August 27, 2001. Because the current appeal arose from a rating assigned following the initial grant of service connection which was effective from the date of claim, the Board has evaluated the level of impairment due to the disability throughout the entire time of the claim and considers the possibility of staged ratings. See Fenderson v. West, 12 Vet. App.119 (1999). Evidence of record, however, does not support assigning different percentage disability ratings during the time period in question. The severity of a service-connected disability is ascertained, for VA rating purposes, by the application of rating criteria set forth in VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2006) (Schedule). The Board further notes that, effective August 30, 2002, new regulations were promulgated concerning ratings for skin disorders (including scars). See 67 Fed. Reg. 49590-49599 (July 31, 2002). However, the changed regulation may not be applied prior to the effective date. See 38 U.S.C.A. § 5110(g) (West 2002). As for pertinent VA rating criteria, 38 C.F.R. § 4.118, Diagnostic Codes 7800 through 7805 (2006) evaluate scars. The veteran is currently rated under Diagnostic Code (DC) 7805, which provides a rating based on limitation of function of the affected part. The old and the new rating criteria for Diagnostic Code 7805 are essentially the same. Compare 38 C.F.R. § 4.118, Diagnostic Code 7805 (2006) with 38 C.F.R. § 4.118, Diagnostic Code 7805 (2001). The Board has reviewed VA outpatient records from August 2001 to September 2005 and VA examinations conducted in March 2003 and March 2005. In 2003, physical examination revealed a faded linear scar at the right dorsum thumb area, one inch long, a round scar at the thenar aspect of the right thumb, 3/4 inch in diameter, a faded linear scar at the ulnar side of the right palm which was one and a half inches in length, and a round scar at the lower end of the fore arm which is 3/4 inch described as the donor site (place of skin graft). The examiner reported that none of the scars caused localized pain. No significant adherence to any underlying tissues was found. The texture of the scars was reported as normal with no evidence of local infection, inflammation, swelling or keloid formation. The majority of the reportedly well-healed scars were significantly faded with one somewhat darker at the thenar aspect of the thumb. The examiner stated that the scars were non-tender, not disfiguring and did not cause any significant limitation of movement of the hands and fingers. On VA examination in March 2005, the examiner described the scars similarly as had the previous 2003 VA examiner. The 2005 examiner stated that the veteran denied any symptoms or limitation of motion from the scar. Upon physical examination of the scars, the examiner reported superficial, non-painful scars which were nonadherent to underlying tissue. The scars were not found to be unstable, and there was no elevation or depression of the scars. The skin was described as normal; no inflammation, edema or keloid formation was noted. The examiner found no functional limitation or limitation of motion with the scar. There has been no objective medical evidence to the contrary. The Board has no reason to refute the opinions of the VA examiners in 2003 and 2005. Specifically, there has been no finding of limitation of function of an affected part caused by the veteran's service- connected scar. As such, the Board finds a higher rating than 0 percent disabling is not warranted under DC 7805. Diagnostic Code (DC) 7804 is also applicable to the service- connected scars of the right hand. To warrant the next higher rating of 10 percent for a scar under this code, the objective medical evidence must show a painful and superficial scar. See 38 C.F.R. § 4.118, Diagnostic Code (DC) 7804. Note (1) under DC 7804 defines a superficial scar as one not associated with underlying soft tissue damage. Formerly, DC 7804 assigned a 10 percent rating for superficial scars that were tender and painful on objective demonstration. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2001). VA examinations conducted in 2003 and 2005 do not show any evidence of soft tissue damage. As noted previously, both examinations found that the scars were flat and nonadherent to underlying tissues. In the 2003 and 2005 examinations, the dimensions of the scar were described as no more than 1 and one half inches each. As discussed above, the 2003 and 2005 VA examination reports show that there was no tenderness at the scar site, and the veteran made no complaints of pain regarding the scar. The Board acknowledges the veteran's March 2005 hearing testimony that his service-connected scar was stiff, painful, tender, and caused limitation of motion. The veteran is competent to report what he experiences. Nonetheless, even considering the veteran's testimony in the light most favorable to him, there is no clinical evidence of objective manifestations of a painful or tender scar. The Board has considered all submitted post-service records which include VA treatment records from August 2001 to September 2005. The records are devoid of any indication that the veteran was treated for pain or tenderness of the scar itself. The Board has considered other potentially applicable diagnostic codes for scars. However, these diagnostic codes do not apply to the veteran's case. See 38 C.F.R. § 4.11, Diagnostic Codes 7800-7803. First, Diagnostic Code 7800 would not apply in this situation as it rates disfiguring scars of the head, face, or neck. Diagnostic Code 7801 rates scars that are deep or that cause limited motion, based on the area of the scars. The minimum compensable rating of 10 percent would require an area or areas exceeding 6 square inches (39 sq. cm.). The 2003 VA examination reports the scars as 1 and one half inches or less, all of which fall short of the 6 square inch dimension required for a 10 percent rating. The limited size of the veteran's service- connected scar is also the reason that Diagnostic Code 7802 is not applicable, for it requires that the scar cover an area of 144 square inches or more. See 38 C.F.R. § 4.118, Diagnostic Code 7802. Formerly, DC 7801 concerned third degree burn scars, and DC 7802 concerned second degree burn scars; these diagnostic codes would not be applicable to the veteran's scar, which did not result from a burn. 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802 (2001). Finally, Diagnostic Code 7803 is not applicable to the veteran's service-connected scar for it relates to unstable scars. An unstable scar is defined as one that exhibits frequent loss of skin covering the scar. See 38 C.F.R. § 4.118, Diagnostic Code 7803, Note (1). The record shows no evidence of an unstable scar. VA examinations conducted in 2003 and 2005 specifically report no chronic skin changes regarding the veteran's scar. Formerly, DC 7803 assigned a 10 percent rating for superficial scars that were poorly nourished, with repeated ulceration. 38 C.F.R. § 4.118, Diagnostic Code 7803 (2001). The veteran's scar has not been shown to be poorly nourished, nor is there any reference to ulceration of the scar. On the basis of all of the evidence of record, the Board concludes that a rating higher than 0 percent is not warranted for the scar of the right knee. Duties to Notify and Assist VA has certain duties to notify and to assist claimants concerning the information and evidence needed to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159 and 3.326(a). VA must notify the claimant (and his or her representative, if any) of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide, and (4) VA must ask the claimant to provide VA with any evidence in his or her possession that pertains to the claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet.App. 183 (2002). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet.App. 112 (2004). In this case, the RO's October 2001 letter describing the evidence needed to support the veteran's claim for service connection was timely mailed before the April 2003 rating decision. It identified what evidence VA was collecting, requested the veteran to send in particular documents and information, and identified what evidence might be helpful in establishing his claim. See Quartuccio. The Board notes that VAOPGCPREC 8-2003 held that, if, in response to notice of its decision on a claim for which VA has already given the section 5103(a) notice, VA receives a notice of disagreement that raises a new issue, section 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved, but section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. The file was transferred to the Board in 2005, so the veteran was not specifically given the notice required by Dingess v. Nicholson, 19 Vet. App. 473 (2006). Nonetheless, the Board finds no prejudice in this instance, as the veteran was provided with the information needed to present his appeal for a higher initial disability evaluation. VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2006). In this case, the veteran's service and VA medical records have been associated with the claims file, and he was afforded two VA examinations in connection with his claim. For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the veteran. ORDER An initial compensable rating for a scar, residual of a gunshot wound of the right hand, is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs