Citation Nr: 0810364 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-34 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a compensable evaluation for residuals of a shrapnel wound, superficial scar of the right elbow. 2. Entitlement to a compensable evaluation for residuals of a shrapnel wound, superficial scar of the right patella. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Katz, Associate Counsel INTRODUCTION The veteran served on active duty from October 1967 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma (RO). FINDINGS OF FACT 1. The veteran's right elbow scar is not painful on examination, does not cause limitation of motion, is not greater that 6 square inches, is not unstable, and there is no functional limitation attributable to the scar. 2. The veteran's right patella scar was not seen on examination, is not painful, does not cause limitation of motion, is not greater that 6 square inches, is not unstable, and there is no functional limitation attributable to the scar. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable evaluation for a residual superficial scar to the right elbow have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7805 (2007). 2. The criteria for entitlement to a compensable evaluation for a residual superficial scar to the right patella have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7805 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has certain notice and assistance requirements. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Upon receipt of a substantially complete application for benefits, VA must notify the veteran of what information or evidence is needed in order to substantiate the claim, and it must assist the veteran by making reasonable efforts to obtain the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Prior to the initial adjudication of the veteran's claims, the RO's letter dated in December 2004 advised the veteran of the foregoing elements of the notice requirements. Although the letter did not notify the veteran of effective dates or the assignment of disability evaluations, there is no prejudice to the veteran because the preponderance of the evidence is against an increased evaluation. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The letter also essentially requested that the veteran provide any evidence in his possession that pertained to his claims. 38 C.F.R. § 3.159(b)(1). Furthermore, the RO's December 2004 letter adequately notified the veteran as to the requirements needed to satisfy his claims for increased disability ratings herein. Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). In addition, the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, to include the opportunity to present pertinent evidence. Thus, the Board finds that the content requirements of the notice VA is to provide have been met. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The duty to assist the veteran has also been satisfied in this case. The RO has obtained the veteran's service medical records, his VA treatment records, and his identified private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In addition, all necessary VA medical examinations have been conducted. Finally, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 112. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 473. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2007). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2007). In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2007). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate when the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the veteran's right elbow and right patella scars are evaluated as noncompensable under Diagnostic Code 7805. In order to warrant a higher evaluation under Diagnostic Code 7805, the scars must limit the function of the veteran's right elbow and right knee, respectively, in some way. The veteran's scars could also be rated under Diagnostic Codes 7801, 7802, 7803, or 7804. VA treatment records from February 2002 to October 2004 are negative for complaints of or treatment for a right elbow or right patella scar. In January 2005, the veteran underwent a VA scars examination. The veteran stated that he had no pain and no complaints about his right elbow scar and no problems with his right patella scar. He was able to walk without limitation, and did not use any walking aids or braces. Physical examination of the right knee revealed no scar on the patella. There was an oval smooth scar below the patella, but the veteran reported that it was not due to a shrapnel injury, "it was due to an injury after discharge." Range of motion in the right knee was 0 to 140 degrees, extension was 0 degrees, and no pain was noted during the movements of the right knee. The right knee was stable, and McMurray's test, Lachman's test, and drawer sign were all negative. Physical examination of the right elbow revealed a 2.5 centimeter (cm) by 0.6 cm smooth, old, well-healed scar on the radial side of the right elbow. There was no pain on examination, no underlying tissue loss, and no adherence to the underlying tissue. The texture of the scar was smooth, and the scar was stable. The color was normal, and there was no elevation or depression of the surface contour of the scar. The scar was superficial with no edema or keloid formation. No disfigurement, limitation of function, or limitation of motion was noted. Range of motion in the right elbow showed flexion to 140 degrees, pronation to 65 degrees, and supination to 70 degrees. There was no pain during movements of the right elbow, and there was no limitation of movement due to pain, weakness, or fatigue. An x-ray of the right knee revealed a linear ossific density along the medial aspect of the medial femoral condyle, which may represent ligamentous ossification or old post-traumatic change, otherwise negative. An x-ray of the right elbow revealed a small bony spur along the posterior superior aspect of the olecranon process of the ulna, otherwise unremarkable. The VA examiner diagnosed a superficial scar of the right elbow with no limitation of motion or disfigurement because of the scar and no limitation of function of the right elbow, and no shrapnel wound scar seen on the right patella. VA treatment records from May 2005 reveal that the veteran presented for monitoring of old shrapnel injuries and pain. X-rays of the shoulder, elbow, and knee showed some calcifications and old shrapnel about the left shoulder. The diagnosis was osteoarthritis and old shrapnel present especially in the left shoulder, which likely as not does cause or contribute to pain in those areas. Based on the foregoing, the Board finds that compensable evaluations for a right elbow scar and a right patella scar are not warranted. As noted above, in order to warrant a higher evaluation under Diagnostic Code 7805, the scars must have limited the function of the veteran's right elbow and right patella, respectively. The VA examiner that evaluated the veteran in connection with the claims, however, indicated no limitation of function related to the scars. Although a May 2005 VA treatment record noted pain related to old shrapnel injuries, the treatment record did not indicate the location of the veteran's pain. Also, at the January 2005 VA examination, the veteran stated that he experienced no pain, complaints, or problems related to the right elbow or right patella scars. Absent any competent evidence of pain or functional impairment of the veteran's scars, compensable ratings cannot be assigned. The Board has also considered other diagnostic codes pertaining to scars. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In this case, the veteran's right elbow scar was 2.5 cm by 0.6 cm, and no right patella scar was found. Although a scar was noted below the right patella, the veteran stated that it was not the result of a shrapnel injury; it was due to an injury which occurred after service discharge. Although the veteran later stated in October 2005, that he did not tell the examiner that the scar seen was the result of an injury after service, a VA examination in January 2005, also did not see a shrapnel wound on the right patella. The right elbow scar was not painful on examination, with no edema or keloid formation. It was non- adherent to underlying tissue and there was no elevation or depression of the surface contour of the scar. The scar was not disfiguring, and there was no limitation of function or limitation of motion related to the scar. Thus, compensable evaluations are not warranted under Diagnostic Codes 7801, 7802, 7803, and 7804. See 38 C.F.R. §§ 4.118, Diagnostic Codes 7801, 7802, 7803, 7804 (2007). After review of the entire evidence of record, the evidence does not warrant a compensable rating for a right elbow scar or a right patella scar at any time during the period pertinent to this appeal. 38 U.S.C.A. § 5110 (West 2002); see also Hart, 21 Vet. App. 505. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the veteran's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A compensable evaluation for residuals of a shrapnel wound, superficial scar of the right elbow, is denied. A compensable evaluation for residuals of a shrapnel wound, superficial scar of the right patella, is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs