Citation Nr: 0509178 Decision Date: 03/28/05 Archive Date: 04/07/05 DOCKET NO. 04-28 668 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased rating for a keloid scar of the chest, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD K.A. Kennerly, Associate Counsel INTRODUCTION The veteran served on active duty from July 1942 to July 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Roanoke, Virginia Regional Office (RO) of the Department of Veterans Affairs (VA), which continued the veteran's assignment of 10 percent disability for a keloid scar of the chest. The veteran submitted to a Board hearing in March 2005, a transcript of which was been associated with the claims folder. FINDINGS OF FACT The veteran has a keloid scar on the chest with limitation of function comparable to moderately severe injury to Muscle Group III resulting in limitation of function in elevating and abducting the arms. CONCLUSION OF LAW The veteran's service-connected keloid scar of the chest warrants 30 percent rating based on moderately severe limitation of function of Muscle Group III. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.73, 4.118, Diagnostic Codes 7805- 5303 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background The veteran served on active duty in the United States Navy from July 1942 to July 1946. The veteran filed for service connection for a keloid scar on his chest in March 1999. He was granted service connection and assigned a noncompensable rating. In December 2002, the veteran requested an increased rating for his keloid scar. In June 2003, his award was increased from noncompensable to 10 percent disabling. The veteran submitted a timely notice of disagreement in February 2004 and perfected his appeal in July 2004. The veteran submitted to a VA scars examination in June 2003. The physical examination revealed that the keloid scar was located at the mid-chest wall. It measured 13.8 cm by 0.1 cm. The scar was elevated in the mid-section of the scar, which was about 5 cm in length. The scar was non-tender, there was disfigurement at the mid-section of the scar, which was with duration of approximately 5 cm. There was no ulceration, no adherence and the scar was stable. There was no tissue loss, no hypopigmentation, no hyperpigmentation, no abnormal texture and no limitation of motion. The examiner stated that for the VA established diagnosis of a keloid scar of the chest, there was no change. The veteran submitted a statement from B.E.F., M.D, dated June 2003. The physician stated that the veteran had been treated on numerous occasions with topical steroids, to try to soften the keloid and to reduce the strictures that had developed as a result of the keloid. The physician then stated that it was difficult to perform certain tasks, to include range of motion of the upper body, due to the restrictive bands on the skin. In a second rating decision dated July 2003, the RO continued the veteran's rating as 10 percent disabling for his keloid scar. The veteran also submitted a statement from K.B.E., OIC, Dermatology, Langley Air Force Base, dated March 2005. The examiner stated that the veteran had significant keloidal/hypertrophic scarring (cord formation) of his central chest, which occurred while serving on active duty in the military. The examiner concluded that the pain and motion restriction were debilitating to the veteran, with the largest palpable cord being 5cm by 1.2 cm with smaller cords and lateral extension of the largest cord noted. The veteran and his wife testified at a VA hearing in March 2005. The veteran stated that the keloid scar on his chest caused tightness and discomfort on movement of each arm. He reported that he was able to raise his arms, but even slight movement resulted in tenderness, with the result that his movements were weakened. Compliance with the Veterans Claims Assistance Act of 2000 (VCAA) On November 9, 2000, the VCAA was enacted. Pub. L. No. 106- 475, 114 Stat. 2096 (2000); see 38 U.S.C.A. §§ 5103, 5103A (West 2002). Among other things, the VCAA amended 38 U.S.C.A. § 5103 to clarify VA's duty to notify claimants and their representatives of any information that is necessary to substantiate the claim for benefits. The VCAA also created 38 U.S.C.A. § 5103A, which codifies VA's duty to assist, and essentially states that VA will make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim. Implementing regulations for the VCAA were subsequently enacted, which were also made effective November 9, 2000, for the most part. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.159). The intended effect of the implementing regulations was to establish clear guidelines consistent with the intent of Congress regarding the timing and scope of assistance VA will provide to claimants who file a claim for benefits. See 66 Fed. Reg. 45,620 (Aug. 29, 2001). Both the VCAA and the implementing regulations are applicable in the present case, and will be collectively referred to as "the VCAA." To comply with the aforementioned VCAA requirements, the RO must satisfy the following four requirements. First, the RO must inform the claimant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(West 2002) and 38 C.F.R. § 3.159(b)(1) (2003). In a letter dated May 2003, the RO informed the veteran of the requirements to prove his claim for service connection. In that later, the veteran was notified that he needed to submit medical evidence showing an increase in the severity of disability resulting from his keloid scar. He was informed that such evidence might include a statement from his doctor. Second, the RO must inform the claimant of the information and evidence the VA will seek to provide. See 38 U.S.C.A. § 5103 (West 2002) and 38 C.F.R. § 3.159(b)(1) (2003). In the May 2003 letter, the RO informed the veteran that it would assist in obtaining medical records. The letter informed the veteran that VA would assist him by obtaining private, VA, or military medical reports, if he would provide VA with the information needed to locate such reports. Third, the RO must inform the claimant of the information and evidence the claimant is expected to provide. See 38 U.S.C.A. § 5103 (West 2002) and 38 C.F.R. § 3.159(b)(1) (2003). The May 2003 letter informed the veteran that he needed to provide information about his medical records in order to enable VA to obtain such records. The letter also requested that the veteran obtain and provide to the RO statements from people he had discussed his injury with after returning home from service. Finally, the RO must request that the claimant provide any evidence in the claimant's possession that pertains to the claim. See 38 U.S.C.A. § 5103 (West 2002) and 38 C.F.R. § 3.159(b)(1) (2003). The 2003 letter informed the veteran that he could submit relevant information or evidence directly to VA. Pursuant to 38 U.S.C.A. § 5103, upon receipt of a substantially complete application, the RO must provide the veteran with the aforementioned notices. In this instance, even though the appellant was not provided the aforementioned four requirements prior to the initial unfavorable decision he is not prejudiced by such failure. Inasmuch as the initial unfavorable decision predated the VCAA, the required notices described in the VCAA could not have been given before then. Furthermore, VA has consistently requested the veteran provide information regarding where and by whom he was treated for his disability. In addition, he has been afforded an opportunity to respond after receiving the required notices. Therefore, for all of the aforementioned reasons, it is determined that the veteran was not prejudiced by the timing of the notices contained in the May 2003 VCAA letter. Bernard v. Brown, 4 Vet.App. 384 (1993); see also VAOPGCPREC 7 - 2004 (2004). In short, the RO has informed the appellant of the information and evidence not of record that is needed, the information and evidence that the VA will seek to provide, the information and evidence the appellant must provide, and requested any additional evidence the appellant has that pertains to the claim. See 38 U.S.C.A. § 5103 (West 2002) and 38 C.F.R. § 3.159(b)(1) (2003); Quartuccio v. Principi, 16 Vet.App. 183 (2002). Disability Ratings In General In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can practicably be determined, the average impairment of earning capacity. See 38 U.S.C.A. § 1155 (West 2002). Although the regulations require that, in evaluating a given disability, that disability be viewed in relation to its whole recorded history, 38 C.F.R. §§ 4.1, 4.2, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, it is the present level of disability which is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2004). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2004). Unless a statute or regulation clearly provides otherwise, a revised statute or regulation will not apply to a pending case if it would produce genuinely retroactive effects, but the revised statute will apply in the absence of retroactive effects. See VAOPGCCONCL 1-2004 citing VAOPGCPREC 7-2003, at 17 and Landgraf v. USI Film Products, 511 U.S. 244 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. See 38 C.F.R. § 4.7 (2004). All benefit of the doubt will be resolved in the veteran's favor. See 38 C.F.R. § 4.3 (2004). 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 (2004). Pyramiding, that is the evaluation 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. See 38 C.F.R. § 4.14 (2004). It is possible for a veteran to have separate and distinct manifestations from the same injury which 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. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2004) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of remote clinical histories and findings pertaining to these disabilities beyond that which is set out herein below. Id. Assignment of diagnostic code The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Board notes that prior to the filing of this claim, the applicable rating criteria for the skin were amended effective August 30, 2002. See 67 Fed. Reg. 49590-49599 (July 31, 2002). The rating criteria prior to August 30, 2002 are not for application with respect to the current claim. The veteran is seeking an increased disability rating for his service-connected keloid scar of the chest, which is currently evaluated as 10 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 7804. He essentially contends that his scar causes a greater degree of impairment than is contemplated by the currently assigned rating. Current rating schedule The rating criteria effective August 30, 2002 provide a 10 percent evaluation for scars that are superficial and painful on examination. Note (1): A superficial scar is one not associated with underlying soft tissue damage. See 38 C.F.R. § 4.118, Diagnostic Code 7804, as amended by 67 Fed. Reg. 49596 (July 31, 2002). The current version of 38 C.F.R. § 4.118, Diagnostic Code 7805 allows for rating scars, which cause functional loss to be rated on limitation of function of the affected part. The remaining codes involving scars which provide ratings of 20 percent and higher involve certain pathology, such as burn scars, scars involving disfigurement of the head, face or neck, or that are deep or cause limited motion, that is not present in this case. See 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7801 (2004). Assignment of Diagnostic Code As stated above in Butts v. Brown, 5 Vet. App. 532, 538 (1993), the Board may determine that one or more diagnostic codes may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. In this case, as demonstrated by the medical statements dated in June 2003 an March 2005 and the testimony presented by the veteran in his hearing of March 2005, the keloid formation on the veteran's scar causes significant pain and restriction of movement. Functionally, the keloid formation makes it difficult for the veteran to raise his arms. Diagnostic Code 5303 for injury to Muscle Group III provides rating criteria for the intrinsic muscles of the shoulder girdle, including the pectoralis major and deltoid. The function of these muscles is elevation and abduction of the arm to shoulder level. A 40 percent rating applies if the disability to the dominant extremity is severe, a 30 percent rating applies if the disability is moderately severe, a 20 percent rating applies if the disability is moderate, and a noncompensable rating applies if the disability is slight. See 38 C.F.R. § 4.73 (2004). This manifestation of the veteran's service-connected disability is comparable to moderately severe injury to Muscle Group III, as described in Diagnostic Code 5303 above. See 38 C.F.R. § 4.73, Diagnostic Code 5304 (2004). Although he is able to elevate and abduct the arms, all elevation and abduction is uncomfortable and is performed with less than full strength. As a result, the veteran's service-connected keloid scar of the chest is comparable to moderately severe muscle injury involving Muscle Group III and warrants a 30 percent rating under Diagnostic Code 5303. Because, despite the discomfort and weakness on movement, the veteran has a relatively good range of movement, the disability is not comparable to severe muscle injury warranting a 40 percent rating. The evidence in this case is approximately balanced regarding the question of whether the veteran is entitled to an increased evaluation for his service-connected keloid scar of the chest. Therefore, the benefit-of-the-doubt will be conferred in his favor and his claim for an increased evaluation for his keloid scar of the chest is granted, subject to the controlling laws and regulations, which govern awards of VA compensation. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2004); see also Gilbert v. Derwinksi, 1 Vet. App. 49 (1990). ORDER Entitlement to 30 percent rating for limitation of function resulting from the veteran's service-connected keloid scar of the chest is granted. ____________________________________________ G.H. Shufelt Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs