Citation Nr: 0811440 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 05-00 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an increased rating for shrapnel scars of the face, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Veterans of the Vietnam War, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fleming, Associate Counsel INTRODUCTION The veteran had active military service from May 1960 to May 1964 and from January 1965 to December 1966. This matter initially came before the Board of Veterans' Appeals (Board) from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, that granted the veteran an increased rating of 10 percent for shrapnel scars of the face, effective September 16, 2003. The Board remanded the matter to the RO for further development and adjudication in March 2007. The RO issued a rating decision and supplemental statement of the case in August 2007, increasing the rating to 30 percent for shrapnel scars of the face, effective September 16, 2003. The veteran testified before a Decision Review Officer at a hearing at the RO in July 2005 and before the undersigned Veterans Law Judge at a hearing at the RO in June 2006. Transcripts of both hearings have been associated with the claims file. FINDING OF FACT The veteran's shrapnel scars of the face are manifested by three characteristics of disfigurement, no visible or palpable tissue loss, and no gross distortion or asymmetry of any features or paired set of features. CONCLUSION OF LAW The criteria for a rating greater than 30 percent for shrapnel scars of the face have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.7, 4.27, 4.118, Diagnostic Code 7800 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2007). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). For an increased-compensation claim, Section 5103(a) requires, at a minimum, that the Secretary notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. Here, the Board finds that all notification and development action needed to render a decision on the claim on appeal has been accomplished. In this respect, through September 2003, November 2005, March 2006, and April 2007 notice letters, the RO notified the veteran of the legal criteria governing his claim and the evidence needed to support his claim. Thereafter, the veteran was afforded the opportunity to respond. Hence, the Board finds that the veteran has received notice of the information and evidence needed to substantiate his claim and has been afforded ample opportunity to submit such information and evidence. The Board also finds that the September 2003, November 2005, and April 2007 notice letters satisfy the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letters, the RO notified the veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. It requested that the veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. The RO also requested that the veteran submit evidence in his possession in support of his claim. Also regarding VA's notice requirements, the Board notes that, in the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim, (2) the evidence, if any, to be obtained by VA, and (3) the evidence, if any, to be provided by the claimant; and (4) VA must make a request that the claimant provide any evidence in the claimant's possession that pertains to the claim. As indicated above, the four content-of-notice requirements have been met in this case. Here, however, the duty to notify was not fully satisfied pursuant to Vazquez-Flores, supra, prior to the initial unfavorable decision on the claim by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case (SOC) or supplemental statement of the case (SSOC), is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial RO decision by way of notice letters sent in November 2005, March 2006 and April 2007 that, together with the pre-decisional notice provided to the veteran in September 2003, fully addressed all four notice elements. Specifically, the September 2003 notice letter notified the veteran of his and VA's respective duties for obtaining evidence and asked him to submit evidence and/or information in his possession to the RO. The September 2003 letter also gave examples of the types of medical and lay evidence that the veteran could submit or ask VA to obtain in support of his claim. The November 2004 rating decision provided notice of the specific criteria necessary to obtain a higher rating of 30 percent under the Diagnostic Code relevant to his claim. The 2005, 2006 and 2007 letters informed the appellant of what evidence was required to substantiate the claim, including the impact of his condition on employment. Those letters further notified the veteran that if an increase in his service-connected disability were found, a rating from 0 percent to as much as 100 percent could be assigned based on the nature of the disability involved. Although not all notices were sent before the initial decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the RO also readjudicated the case by way of an August 2007 rating decision and SSOC after the notice was provided. The Board further notes that although the Court has held in Mayfield, supra, that post-decisional documents are inappropriate vehicles with which to provide notice, the RO in this case provided Vazquez-Flores compliant notice of specific rating criteria that was followed by a readjudication of the veteran's claim. The Board concludes that "during the administrative appeal process [the veteran] was provided the information necessary such that any defective predecisional notice error was rendered non- prejudicial." Vazquez-Flores, slip op. at 12. This process included the August 2007 rating decision and SSOC. For these reasons, it is not prejudicial to the veteran for the Board to proceed to finally decide this appeal, as the timing error did not affect the essential fairness of the adjudication. The Board thus finds that "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. In this regard, the more detailed notice requirements set forth in 38 U.S.C.A. §§ 7105(d) and 5103A have been met. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Specifically, following the RO's issuance of the September 2003 notice letter to the veteran, his claim for an increased rating for shrapnel scars of the face was adjudicated in November 2004. After the issuance of the November 2005, March 2006, and April 2007 notice letters, the veteran's claim was readjudicated in August 2007. Otherwise, nothing about the evidence or any response to the RO's notification suggests that the case must be readjudicated ab initio to satisfy the requirements of the VCAA. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the veteran's claim. The veteran's service and VA medical records have been associated with the claims file. He has submitted written argument in support of his claim and testified at hearings before a Decision Review Officer and the undersigned Veterans Law Judge. He was given VA examinations in October 2004 and April 2007. Otherwise, the veteran has not identified, and the record does not indicate, existing records that need to be obtained pertinent to the claim on appeal. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis The Board has thoroughly reviewed all the evidence in the veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the every piece of evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim currently at bar. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports each claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities, 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 applies 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). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Further, evaluation of the medical evidence since the filing of the claim for increased rating and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). 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. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology, as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). In this case, in a November 2004 rating decision, the RO granted the veteran an increased rating of 10 percent for shrapnel scars of the face, effective September 16, 2003. The RO increased this rating to 30 percent, effective September 16, 2003, in an August 2007 rating decision and SSOC. The veteran contends that the scars on his face are embarrassing and warrant more than a 30 percent rating under the relevant Diagnostic Code. The criteria for evaluating skin disorders were amended by a final rule that became effective on August 30, 2002. See 67 Fed. Reg. 49,590 (July 31, 2002). Given the date of filing of the veteran's claim and the effective date of the initial RO grant of increased rating, the Board will apply the criteria provided by the revised regulation in evaluating the veteran's shrapnel scars of the face. Under the pertinent criteria, a 10 percent evaluation is warranted for scars of the head, face, or neck when there is one characteristic of disfigurement. Diagnostic Code 7800. A 30 percent evaluation requires 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. Id. A 50 percent evaluation requires 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. Id. An 80 percent evaluation requires 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. Id. In Note 1 under Diagnostic Code 7800, the eight characteristics of disfigurement are: scar 5 or more inches (13 or more cm) in length; scar at least one-quarter inch (0.6 cm) wide at its widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo-pigmented or hyper-pigmented in an area exceeding six square inches; skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) 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. Also, Note 3 requires consideration of unretouched color photographs when evaluating scars under these criteria. Diagnostic Code 7800. Applying the schedular criteria to the existing facts, the Board finds that the currently assigned 30 percent disability rating is proper for the veteran's service-connected shrapnel scars of the face under Diagnostic Code 7800, and an increase to 50 percent is not warranted. The Board notes as an initial matter that the veteran's claim for increased rating for shrapnel scars of the face was remanded by the Board in March 2007. At that time, the October 2004 VA examination provided to the veteran was found to be insufficient for purposes of rendering a decision on the veteran's claim. Specifically, the Board noted at that time that the October 2004 examination failed to assess the width of the veteran's facial scars and the presence of any depressions in the surface contours of the scars. The examiner also failed to take the color photographs required by the Diagnostic Code and did not specify whether the scars examined at the time were due to the veteran's shrapnel injuries or were scars that pre-existed the veteran's induction into service. Pursuant to the remand, the veteran was provided a second VA medical examination in April 2007 that remedied the defects of the October 2004 examination. The Board will thus rely on the April 2007 examination in rendering the decision set forth herein. Report of examination from the April 2007 VA examination indicates that the veteran has three service-connected facial scars. The first scar is located in the glabellar area and measures 0.5 cm in length and less than 0.6 cm in width. The examiner found the scar to be barely visible, non-tender to the touch, and non-adherent to underlying tissue. The scar was found to be smooth, regular, stable, superficial, and the same color as the surrounding skin. The scar was very mildly depressed, consistent with age-related wrinkles, but showed no gross facial distortion, no area of induration or inflexibility, and no significant inflammation, edema, or keloid. No loss of motion was noted due to the scar. Similarly, a right maxillary scar was noted in the zygomatic area measuring 2 cm in length and less than 0.6 cm in width. The examiner found the scar to be quite visible but non- tender to the touch and non-adherent to underlying tissue. The scar was found to be smooth, regular, stable, superficial, and the same color as the surrounding skin. The scar was slightly depressed but showed no gross anatomic or facial distortion, no area of induration or inflexibility, and no significant inflammation, edema, or keloid. No loss of motion was noted due to the scar. A left maxillary scar was also noted in the zygomatic area measuring 2 cm in length and less than 0.6 cm in width. The examiner found this scar to be quite visible but non-tender to the touch and non-adherent to underlying tissue. The scar was found to be smooth, regular, stable, superficial, and the same color as the surrounding skin. The scar was slightly depressed but showed no gross anatomic or facial distortion, no area of induration or inflexibility, and no significant inflammation, edema, or keloid. No loss of motion was noted due to the scar. The examiner took color photographs of the scars, which have been associated with the claims file, and concluded that the scars were prominent but caused no facial asymmetry or disfigurement. In a July 2005 hearing before a Decision Review Officer and again in a June 2006 hearing before the undersigned Veterans Law Judge the veteran stated that the shrapnel scars on his face caused him embarrassment and occasional flashbacks due to being asked about the scarring. The veteran also stated in his December 2004 VA Form 9 (Appeal to Board of Veterans' Appeals) that the scars on his face have caused him "to be a loner" due to the embarrassment he feels at their appearance. Based on consideration of the above evidence, the Board finds that the 30 percent currently assigned for shrapnel scars of the face is proper. The veteran's scars display three characteristics of disfigurement-the surface contour of each of the three scars is depressed on palpation. As documented in the April 2007 report of VA examination, no other characteristics of disfigurement are present in any of the scars. Otherwise, the scars display no visible or palpable tissue loss and no gross distortion or asymmetry of two features of paired sets of features. The Board has also considered whether a rating higher than 30 percent is applicable under any other Diagnostic Codes but finds that no other Diagnostic Code addressing scars is applicable here. Diagnostic Codes 7801 and 7802 are not for application because these Diagnostic Codes are for scars other than on the head, face, or neck. Diagnostic Codes 7803 and 7804 are not for application because there is no evidence that the veteran's facial scars are unstable or painful on examination. Accordingly, the Board thus finds that the evidence does not support a higher rating under any of the other rating criteria for scars. 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804 (2007). The Board has examined the medical evidence, including the color photographs in the claims file of the scarring on the veteran's face. Since the medical evidence does not show that any of the criteria have been met for a rating higher than 30 percent, the evidence is against the veteran's claim. The Board sympathizes with the veteran's statements that he considers the facial scars to be embarrassing and has had to experience the unpleasant social ramifications of facial scarring; however, there are simply no provisions that support the awarding of a higher rating at this time. Unfortunately, unsightly or repugnant deformity is not a part of the ratings criteria. The extent to which scarring caused disfigurement considered unsightly or repugnant was considered in the prior version of DC 7800 for the head, face, or neck. Those provisions were abolished by the enactment of the current rating provisions discussed above. As a result, no additional rating is appropriate for the effect the scars have on the veteran's appearance. The above determination is based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the veteran's shrapnel scars of the face are so exceptional or unusual as to warrant the assignment of a higher rating on an extra- schedular basis. See 38 C.F.R. § 3.321(b)(1) (2007). There simply is no evidence of marked interference with employment (i.e., beyond that contemplated in the assigned evaluation); frequent periods of treatment, let alone hospitalization; or evidence that the veteran's shrapnel scars of the face otherwise render impractical the application of the regular schedular standards. Therefore, the criteria for invoking the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 157, 158-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, the Board finds that the veteran's shrapnel scars of the face warrant no more than a 30 percent rating. 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7800. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an increased rating for shrapnel scars of the face, currently rated as 30 percent disabling, is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs