Citation Nr: 0811934 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 06-37 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an increased rating for scar, post operative, left thoracotomy, for excision of neurofibroma, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESSES AT HEARINGS ON APPEAL Veteran and his son ATTORNEY FOR THE BOARD Tanya A. Smith, Counsel INTRODUCTION The veteran served on active duty from January 1949 to February 1954. This case comes to the Board of Veterans' Appeals (Board) on appeal of an August 2006 rating decision rendered by the Hartford, Connecticut, Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2007, the veteran testified at a hearing before an RO Decision Review Officer. He also testified at a videoconference hearing before the undersigned Acting Veterans Law Judge in March 2008. Transcripts of these hearings are associated with the claims folder. A motion to advance this case on the docket was granted by the Board in March 2008. See 38 U.S.C.A. § 7107(a) (West 2002); 38 C.F.R. § 20.900(c) (2007). REMAND At the March 2008 videoconference hearing, the veteran testified that his thoracotomy scar limited his activities. Specifically, the scar limits his ability to use his left arm during such activities as mowing the lawn, picking up objects, and painting. He experiences pain, fatigue, and numbness in his left arm. The Board observes that the veteran was last afforded a VA examination in May 2006 at which time the examiner reported that there was no limitation of motion or other limitation of function caused by the scar. The veteran and his representative, however, contend that the examiner did not evaluate whether there was any functional impairment associated with the left arm that was attributable to the scar, including painful motion. The Board notes that the examination report reflects that this specific complaint was not noted in the medical history reported by the veteran at that time. Therefore, the Board finds that the veteran should be afforded a new VA examination to include an evaluation of the extent to which the veteran's scar causes any limitation of function of his left arm. The "duty to assist" requires a "thorough and contemporaneous medical examination" that is sufficient to ascertain the current level of disability, and accounts for its history. Floyd v. Brown, 9 Vet. App. 88, 93 (1995). This medical examination must consider the records of prior medical examinations and treatment in order to assure a fully informed decision. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). In addition, after a review of the record, the Board has determined that the RO has not provided adequate Veterans Claims Assistance Act of 2000 (VCAA) notice in accordance with the recently decided case of Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The April 2006 letter did not inform the veteran of the specific rating criteria applicable to the claim. Another VCAA notice should be issued to the veteran to remedy this deficiency. Although previously provided to the veteran in a March 2006 letter, the additional VCAA notice should also inform the veteran that, to substantiate a claim, he 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 his employment and daily life. The additional VCAA notice letter should advise the veteran that, if an increase in disability is 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 0% to as much as 100% (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. In light of the veteran's specific symptomatology, the veteran should also be notified that his service-connected scar can be rated on the basis of limitation of function of his upper extremities. Finally, the additional VCAA notice letter should provide examples of the types of medical and lay evidence that the veteran 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. Accordingly, this issue is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should provide the veteran with the notice required under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), to include the notice specified by the United States Court of Appeals for Veterans Claims (the Court) in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), pertaining to increased rating claims. In particular, the notice letter should inform the veteran that, to substantiate a claim, he 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 his employment and daily life. The notice letter should advise the veteran that, if an increase in disability is 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 0% to as much as 100% (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. In addition, inform the veteran of the specific rating criteria applicable to the claim (Diagnostic Codes 7801, 7802, 7803, 7804, 7805, and 5201). The notice letter should provide examples of the types of medical and lay evidence that the veteran may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. Examples include 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. 2. The RO or the AMC should undertake appropriate development to obtain any pertinent evidence identified but not provided by the veteran. If the RO or the AMC is unsuccessful in its efforts to obtain any such evidence, it should so inform the veteran and his representative and request them to submit the outstanding evidence. 3. The RO or the AMC should make arrangements for the veteran to be afforded an examination by an examiner with appropriate expertise to determine the nature and extent of all impairment due to the service-connected thoracotomy scar. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner. The examiner should provide the measurements for the service-connected thoracotomy scar (length and width), describe any functional impairment due to the service-connected scar and identify any objective evidence of pain or tenderness of the scar. The examiner should indicate whether the scar is unstable with frequent loss of covering of skin over the scar, or is it associated with underlying soft tissue damage. The examiner should identify all functional impairment of the arms due to the scar, and to the extent possible, distinguish the impairment due to the service-connected disability from that of any non service-connected disorders. The examiner should specifically identify any limitation of motion in degrees due to the service-connected disability. The examiner should consider as limited motion any degrees of motion accompanied by pain, incoordination, weakness, and excess fatigability. The examiner should also attempt to assess the extent of any increase in limitation of motion on repeated use and during flare-ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss of either arm. The examiner should also provide an opinion concerning the impact of the service-connected disability on the veteran's ability to work. The rationale for all opinions expressed should also be provided. 4. The RO or the AMC should also undertake any other development it determines to be warranted. 5. Then, the RO or the AMC should readjudicate the claim. If the benefit sought on appeal is not granted to the veteran's satisfaction, the veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is otherwise notified but he has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ Lloyd Cramp Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).