Citation Nr: 0811958 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 04-17 922 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to a compensable initial rating for a right breast scar from December 6, 2001, to April 18, 2004. 2. Entitlement to a disability rating in excess of 10 percent for a right breast scar as of April 19, 2004. 3. Entitlement to a compensable rating for a chronic left shoulder disability, from December 6, 2001, to April 26, 2005. 4. Entitlement to a disability rating in excess of 10 percent for a chronic left shoulder disability, after April 27, 2005. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. L. Mollan, Associate Counsel INTRODUCTION The veteran served on active duty from July 1995 to July 1999 and from November 1999 to December 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2002 RO decision, which granted the veteran service connection and assigned a noncompensable initial rating for a scar of the right breast. During the course of this appeal, the veteran was awarded a 10 percent rating for her right breast scar, effective from April 19, 2004. With regard to the veteran's disability rating for her left shoulder disability, it is noted that service connection was granted in a December 1999 RO decision, and the veteran was assigned an initial 10 percent rating, effective July 17, 1999. In November 1999, she entered active duty and her disability benefits were terminated. After her separation from her second period of active duty, she filed a claim for increased benefits for her left shoulder disability. In an August 2002 RO decision, it was determined that she warranted a noncompensable evaluation for her left shoulder disability. During the course of the appeal, via a May 2005 RO decision, the veteran was assigned a 10 percent rating for her disability effective April 27, 2005. Since the RO did not assign the maximum disability ratings possible for the scar or the left shoulder disability, the appeals for higher evaluations remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). In September 2006, a Travel Board hearing was held before the undersigned Veterans Law Judge at the Waco, Texas RO. A transcript of that proceeding has been associated with the claims folder. In December 2006, these issues were remanded by the Board in order to obtain additional VA Medical Center (VAMC) treatment records. FINDINGS OF FACT 1. From December 6, 2001, to April 18, 2004, and onward, the veteran's service-connected right breast scar was manifested by complaints of pain. 2. From December 6, 2001, to April 26, 2005, and onward, the veteran's service-connected left shoulder disability was manifested by complaint of pain, stiffness, recurrent subluxation, swelling, inflammation, instability, and lack of endurance. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation of 10 percent, but no more, for the veteran's service-connected right breast scar, for the period of December 6, 2001, to April 18, 2004, have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.159, 3.321, 4.118, Diagnostic Codes 7804, 7805 (2007). 2. The criteria for entitlement to an evaluation in excess of 10 percent disabling as of April 19, 2004, for the veteran's service-connected right breast scar have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.159, 3.321, 4.118, Diagnostic Code 7804 (2007). 3. The criteria for entitlement to an evaluation of 10 percent, but no more, for the veteran's service-connected chronic left shoulder pain, for the period of December 6, 2001, to April 26, 2005, have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.71a, Diagnostic Code 5203 (2007). 4. The criteria for entitlement to an evaluation in excess of 10 percent disabling as of April 27, 2005, for the veteran's service-connected chronic left shoulder pain have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.71a, Diagnostic Code 5203 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. The VCAA letter issued in March 2002 specifically satisfied the second and third elements of the duty to notify, articulated above. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio, at 187. With specific regard to the fourth element, viz., that the claimant should provide any evidence relevant to the claims in her possession to VA, it is noted that the aforementioned letter essentially informed her that additional information or evidence was needed to support her claims, and asked her to send the information or evidence to VA and provided examples of the types of evidence, both medical and lay, that could be submitted. The Board concludes that a reasonable person could be expected to understand that any relevant evidence should be submitted during the development of the claims. Accordingly, the Board concludes that any failure to provide VCAA compliant notice in this regard was harmless. See Sanders v. Nicholson, 487 F.3d 881 (2007). In order to satisfy the first Pelegrini II element for an increased-compensation claim, namely the left shoulder claim, section 5103(a) compliant notice must meet the following four part test: (1) 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; (2) 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 of 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; (3) 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; (4) 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 v. Peake, 22 Vet. App. 37 (2008). For the following reasons, the Board finds that any defects with regard to the Vazquez-Flores test are non-prejudicial. First, it is noted that the requirements imposed by Vazquez- Flores are not applicable to initial rating claims, such as the one regarding the veteran's right breast scar. It is, however, applicable to the veteran's left shoulder claim. Preliminarily, the Board notes that the notice provided in this case was issued prior to the decision in Vazquez- Flores. As such it does not take the form prescribed in that case. Failure to provide pre-adjudicative notice of any of the necessary duty to notify elements is presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). The Secretary has the burden to show that this error was not prejudicial to the veteran. Id., at 889. Lack of prejudicial harm may be shown in three ways: (1) that any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice what was needed, or (3) that a benefit could not have been awarded as a matter of law. Id., at 887; see also Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Federal Circuit indicated that this was not an exclusive list of ways that error may be shown to be non prejudicial. See Sanders, at 889. In order for the Court to be persuaded that no prejudice resulted from a notice error, the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair. See also Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In March 2002, the RO sent the veteran a VCAA letter, informing her that the medical evidence provided must demonstrate a greater level of disability than previously assessed in accordance with specific VA criteria for that particular disability in order to establish an increased evaluation for a service-connected condition. In addition, the veteran was questioned about her employment and daily life, in regards to her chronic left shoulder pain, during the course of the March 2002 and April 2005 VA examinations performed in association with these claims. The veteran provided statements at these examinations, in which she details the impact of her disability on her daily activities. The Board finds that the notice given, the questions directly asked, and the responses provided by the veteran show that she knew that the evidence needed to show that her disability had worsened and what impact that had on her employment and daily life. As the Board finds the veteran had actual knowledge of the requirement, any failure to provide her with adequate notice is not prejudicial. See Sanders, supra. The Board finds that the first criterion is satisfied. See Vazquez-Flores. As to the second element, the Board notes that the veteran's chronic left shoulder pain is currently rated under 38 C.F.R. 4.71a, Diagnostic Code 5203. Entitlement to a higher disability rating would be satisfied by evidence demonstrating a noticeable worsening or increase in severity of the disability and the effects that worsening has on the claimant's employment and daily life. See id. The Board finds that no more specific notice is required of VA and that any error in not providing the rating criteria is harmless. See Vazquez-Flores. While notification of the specific rating criteria was provided in the May 2004 statement of the case (SOC) and the May 2005 supplemental statement of the case (SSOC), and not a specific preadjudicative notice letter, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the veteran. The Court has held that such remands are to be avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en banc), vacated on other grounds sub nom. Winters v. Gober, 219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). See also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc). As to the third element, the Board notes that the veteran was not provided a notice letter that a disability rating would be determined by application of the ratings schedule and relevant Diagnostic Codes based on the extent and duration of the signs and symptoms of her disability and their impact on her employment and daily life. See Vazquez-Flores. The Board notes that the ratings schedule is the sole mechanism by which a veteran can be rated, excepting only referral for extraschedular consideration and special monthly compensation. See 38 C.F.R. Part 4 (2007). Neither the Board nor the RO may disregard the schedule or assign ratings apart from those authorized by the Secretary and both must apply the relevant provisions. Id. As such, notice to the veteran that the rating schedule will be applied to the symptomatology of her disability has no impact on the fundamental fairness of the adjudication because it refers to legal duties falling upon VA, not upon the veteran, and cannot be changed. The Board finds that the error in the third element of Vazquez-Flores notice is not prejudicial. See Sanders, supra. As to the fourth element, the March 2002 letter did provide notice of the types of evidence, both lay and medical, that could be submitted in support of her claims. The Board finds that the fourth element of Vazquez-Flores is satisfied. See id. In light of the foregoing, the Board finds that any notice defect as to the requirements of Vazquez-Flores are nonprejudicial. The Board, therefore, finds that VA has discharged its duty to notify. See Pelegrini II, supra. The Court recently held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the veteran's claims were granted and disability ratings and effective dates were assigned in RO decisions from December 1999 and August 2002. VA's duty to notify under 38 U.S.C.A. § 5103(a) is discharged. See Sutton v. Nicholson, 20 Vet. App. 419 (2006). In addition, the Board notes that the veteran was given appropriate notice according to Dingess in a March 2006 letter. Issuance of this letter was followed by a readjudication via a September 2007 SSOC. The Board also concludes VA's duty to assist has been satisfied. The veteran's available service, private, and VA medical records are in the file. The veteran has at no time referenced outstanding records that she wanted VA to obtain or that she felt were relevant to the claims. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2007). The RO provided the veteran with VA examinations for her chronic left shoulder pain and her right breast scar in March 2002, February 2005, and April 2005. There is no objective evidence indicating that there has been a material change in the severity of the veteran's service-connected disabilities since she was last examined. See 38 C.F.R. § 3.327(a) (2007). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The Board finds these VA examination reports to be thorough and consistent with contemporaneous VA and private treatment records. The examinations in this case are adequate upon which to base a decision. 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, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board has thoroughly reviewed all the evidence in the veteran's claims folder. The Board has an obligation to provide reasons and bases supporting this decision. 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 claims. 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 veteran). 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 providing 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 the claims or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2007). The veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2007). But where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). In this case, however, the veteran timely appealed the rating initially assigned for her service-connected right breast scar within one year of the notice of the establishment of service connection. Therefore, VA must consider whether the veteran is entitled to "staged" ratings to compensate her for times since filing her claim when this disability may have been more severe than at other times during the course of her appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2007). 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 disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). 1. Entitlement to a compensable initial rating for a right breast scar between December 6, 2001, and April 18, 2004. The veteran was granted service connection for a right breast scar and assigned an evaluation of 0 percent, effective December 6, 2001. A May 2005 rating decision increased the veteran's evaluation from 0 percent to 10 percent, effective April 19, 2004, under Diagnostic Code 7804. This first section of the Board's decision addresses the rating of the veteran's right breast scar only for the period between December 6, 2001, and April 18, 2004. During the pendency of this appeal, VA issued new regulations for rating impairment of skin disabilities. These became effective August 30, 2002. See 67 Fed. Reg. 49,590-49,599 (July 31, 2002). The Board will evaluate the veteran's claim under both the criteria in the VA Schedule for Rating Disabilities in effect at the time of her filing and the current regulations in order to ascertain which version would accord her the highest rating. According to VAOPGCPREC 7- 2003 (Nov. 19, 2003), in Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003), the Federal Circuit overruled Karnas v. Derwinski, 1 Vet. App. 308 (1991), to the extent it conflicts with the precedents of the United States Supreme Court (Supreme Court) and the Federal Circuit. Karnas is inconsistent with Supreme Court and Federal Circuit precedent insofar as Karnas provides that, when a statute or regulation changes while a claim is pending before VA or a court, whichever version of the statute or regulation is most favorable to the claimant will govern unless the statute or regulation clearly specifies otherwise. Accordingly, the rule adopted in Karnas no longer applies in determining whether a new statute or regulation applies to a pending claim. Id. However, none of the above cases or General Counsel opinions prohibits the application of a prior regulation to the period on or after the effective date of a new regulation. Thus, the rule that the veteran is entitled to the most favorable of the versions of a regulation that was revised during her appeal allows application of the prior versions of the applicable diagnostic codes at 38 C.F.R. § 4.71a to the period on or after the effective dates of the new regulations. In determining whether the veteran is entitled to a higher rating, the Board must consider (1) whether an increased rating is warranted under the "old" criteria at any time; and (2) whether an increased rating is warranted under the "new" criteria for the right breast scar at any time on or after August 30, 2002. The effective date of any rating assigned under the revised schedular criteria may not be earlier than the effective date of that change; the Board must apply only the earlier version of the regulation for the period prior to the effective date of change. See VAOPGCPREC 3-2000; 38 U.S.C.A. § 5110(g) (West 2002 & West Supp. 2006) (where compensation is awarded pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue). Prior to August 30, 2002, Diagnostic Codes 7800 though 7805 were used to evaluate disability from scars. The Board notes that Diagnostic Codes 7800, 7801, 7802, and 7803 are inapplicable, as the scar at issue is located on the veteran's right breast; there is no allegation or evidence that the scar is analogous to a scar burn of any kind, second or third degree; and there is no evidence of any sort of ulceration on the right breast. See 38 C.F.R. § 4.118, Diagnostic Codes 7800-7803 (2002). Diagnostic Code 7804 evaluated superficial scars that are tender and painful on objective demonstration. The veteran's right breast scar was reported as non-tender with no adherence. See VA examination report, March 2002. However, the Board notes that the veteran complained of chronic pain in her September 2003 notice of disagreement (NOD). In addition, the Board notes that a service medical record from June 2001 reflected complaints of pain as well. Therefore, resolving all reasonable doubt in favor of the veteran, the Board finds that the veteran's right breast scar warrants an evaluation of 10 percent for the period of December 6, 2001, to April 18, 2004, under Diagnostic Code 7804. Diagnostic Code 7805 instructed the rater to evaluate scars based on limitation of function of the part affected. Although the veteran was originally rated under Diagnostic Code 7805, there is no evidence of record indicating that the veteran suffered a limitation of function as a result of the right breast scar from December 6, 2001, and April 18, 2004. The examining physician at the March 2002 examination specifically noted that the veteran's right breast scar did not result in limitation of function. Therefore, a higher rating cannot be awarded to the veteran's disability by application of this diagnostic code. In regards to applying the revised criteria for rating skin disabilities, effective August 30, 2002, Diagnostic Code 7801 provides for a 10 percent rating is assigned for scars, other than head, face, or neck, that are deep or that cause limited motion and which cover an area exceeding 6 square inches (39 sq. cm.). See 38 C.F.R. § 4.118, Diagnostic Code 7801 (2007). A 10 percent rating is also assignable for scars, other than head, face, or neck, that are superficial, do not cause limited motion, and which cover an area of 144 square inches (929 sq. cm.) or greater. See 38 C.F.R. § 4.118, Diagnostic Code 7802 (2007). The veteran's right breast scar was not measured at the March 2002 VA examination. However, the veteran's right breast scar has been reported as 3 centimeters by 1.5 centimeters, and 2 centimeters in diameter. See VA examination report, February 2005. There is no indication in the medical evidence of record that the veteran's scar covered an area of 144 square inches or greater at any point. Further, there is no evidence that the service-connected right breast scar is productive of limitation of motion. As such, a higher rating is unavailable under Diagnostic Codes 7801 and 7802. Under Diagnostic Code 7803, unstable, superficial scars warrant a 10 percent rating. See 38 C.F.R. § 4.118, Diagnostic Code 7803 (2007). For the purpose of this diagnostic code, an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. The physician at the March 2002 VA examination specifically noted that there is underlying tissue loss. However, there is no evidence of record of a frequent loss of skin over the scar; as such, application of this code does not result in the assignment of a higher rating. Under Diagnostic Code 7804, scars which are superficial and painful on examination are assigned a 10 percent rating. See 38 C.F.R. § 4.118, Diagnostic Code 7804 (2007). As mentioned above, the Board has already concluded that an evaluation of 10 percent is awarded for this period under this diagnostic code. This is the maximum evaluation allowed under both the old criteria and the revised criteria for this diagnostic code. No changes have been made to Diagnostic Code 7805, which rates scars on limitation of function of the affected part. See 38 C.F.R. § 4.118, Diagnostic Code 7805 (2006). As previously mentioned, there is no evidence of record indicating that the veteran suffered limitation of function as a result of the right breast scar from December 6, 2001, and April 18, 2004. In summary, for the reasons and bases expressed above, the Board has concluded that the evaluation of the veteran's service-connected right breast scar should be increased to 10 percent for the period of December 6, 2001, to April 18, 2004 under Diagnostic Code 7804. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the veteran's disability has not been shown to cause marked interference with employment during this time period beyond that contemplated by the Schedule for Rating Disabilities, as discussed above; has not necessitated frequent periods of hospitalization during this time period; and has not otherwise rendered impractical the application of the regular schedular standards utilized to evaluate the severity of the disability. Thus, the Board finds that the requirements for an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). 2. Entitlement to a disability rating in excess of 10 percent for a right breast scar as of April 19, 2004. The veteran's service-connected right breast scar is currently evaluated as 10 percent disabling under Diagnostic Code 7804, effective April 19, 2004. As 10 percent is the maximum evaluation that can awarded under Diagnostic Code 7804 under both the old criteria and the revised criteria, an increased evaluation cannot be awarded under this diagnostic code. As discussed above, under the schedule of ratings for skin disabilities prior to August 30, 2002, Diagnostic Codes Diagnostic Codes 7800, 7801, 7802, and 7803 are inapplicable, as the scar at issue is located on the veteran's right breast; there is no allegation or evidence that the scar is analogous to a scar burn of any kind, second or third degree; and there is no evidence of any sort of ulceration on the right breast. See 38 C.F.R. § 4.118, Diagnostic Codes 7800- 7803 (2002). In addition, there is no evidence of record indicating that the veteran currently has limitation of function, as of April 19, 2004, as a result of her right breast scar. The examiner at the February 2005 VA examination specifically noted that there is no limitation of function by this scar. As such, an increased evaluation cannot be assigned under Diagnostic Code 7805 according to either the old criteria or the revised criteria. In regards to applying the revised criteria for rating skin disabilities, effective August 30, 2002, under Diagnostic Code 7801, a 10 percent rating is assigned for scars, other than head, face, or neck, that are deep or that cause limited motion and which cover an area exceeding 6 square inches (39 sq. cm.). See 38 C.F.R. § 4.118, Diagnostic Code 7801 (2007). A 10 percent rating is also assignable for scars, other than head, face, or neck, that are superficial, do not cause limited motion, and which cover an area of 144 square inches (929 sq. cm.) or greater. See 38 C.F.R. § 4.118, Diagnostic Code 7802 (2007). The veteran's right breast scars were measured at 2 centimeters in diameter, and 1.5 centimeters by 3 centimeters. See VA examination report, February 2005. Further, there is no evidence that the service-connected right breast scar is productive of limitation of motion. Id. As such, a higher rating is unavailable under Diagnostic Codes 7801 and 7802. Under Diagnostic Code 7803, unstable, superficial scars warrant a 10 percent rating. See 38 C.F.R. § 4.118, Diagnostic Code 7803 (2007). For the purpose of this diagnostic code, an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. The physician at the February 2005 VA examination specifically noted that there is normal skin texture and no skin breakdown. At no point from April 19, 2004, to the present has medical evidence been submitted indicating frequent loss of covering of skin over the scar. As such, application of this code does not result in the assignment of a higher rating. The Board acknowledges the veteran's contentions that her right breast scar warrants a higher rating. See NOD, September 2003. However, no medical evidence has been submitted to support this contention. The veteran can attest to factual matters of which she had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The veteran as a lay person has not been shown to be capable of making medical conclusions, thus, her statements regarding severity are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). While the veteran is competent to report what comes to her through her senses, she does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). In summary, for the reasons and bases expressed above, the Board has concluded that the veteran's current disability rating of 10 percent, effective April 19, 2004, adequately compensates the veteran for her current service-connected right breast scar. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the veteran's disability has not been shown to cause marked interference with employment beyond that contemplated by the Schedule for Rating Disabilities, as discussed above; has not necessitated frequent periods of hospitalization; and has not otherwise rendered impractical the application of the regular schedular standards utilized to evaluate the severity of the disability. Thus, the Board finds that the requirements for an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). The Board concludes that the preponderance of the evidence is against the claim for an increased rating, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 3. Entitlement to a compensable rating for a chronic left shoulder disability, between December 6, 2001, to April 26, 2005. The veteran was granted service connection for a chronic left shoulder disability and assigned an evaluation of 10 percent, effective July 17, 1999, under Diagnostic Code 5203. Compensation for this disability was terminated as of November 1999, due to the veteran's return to active duty. An August 2002 rating decision assigned the veteran a 0 percent rating, effective December 6, 2001, under Diagnostic Code 5203. In May 2005, the RO increased the veteran's evaluation from 0 percent to 10 percent, effective April 27, 2005. Under 38 C.F.R. § 4.71a, Diagnostic Code 5203, a 10 percent evaluation is warranted for nonunion of the clavicle or scapula without loose movement or malunion of the clavicle or scapula. A 20 percent evaluation is warranted for dislocation of the clavicle or scapula or nonunion of the clavicle or scapula, with loose movement. These evaluations apply to both the major and the minor joint. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. In October 1999, the veteran underwent a VA examination for her left shoulder disability. At this examination, the veteran reported constant pain, particularly if she does any lifting. She also reported irritation if she sleeps on her left shoulder. Upon examination, her shoulders were noted as symmetrical in appearance, with no atrophy or deformity. Some tenderness over the lateral aspect of the humeral head of the left shoulder was noted. At this time, there was no palpable abnormality, crepitation, swelling, or effusion. In regards to her range of motion, the examiner stated that both shoulders could be elevated in abduction/flexion 180 degrees, both shoulders could be internally/externally rotated 90 degrees, both shoulders could be abducted 40 degrees, and both shoulders could be extended 60 degrees. It was noted that there was some slowness in the movement of the left shoulder, as compared to the right shoulder. In March 2002, the veteran underwent another VA examination. At this time, the veteran reported pain, stiffness, recurrent subluxation, swelling, inflammation, instability, and lack of endurance in her left shoulder. It was noted that she has had cortisone injections into the joint. The examiner also noted that the appearance of the shoulder joint was within normal limits. In regards to her range of motion, flexion was recorded as 180 degrees, abduction was recorded as 180 degrees, and external and internal rotation were recorded as 90 degrees. The examiner concluded that there was no Deluca issue. As there is no indication in the evidence of record that the veteran had nonunion of the clavicle or scapula without loose movement or malunion of the clavicle or scapula at any point during the period of December 6, 2001, to April 26, 2005, the veteran's evaluation for this time period cannot be increased to 10 percent under Diagnostic Code 5203. However, as will be discussed below, the RO increased the veteran's evaluation from 0 percent to 10 percent for painful motion, effective April 27, 2005, in a May 2005 RO decision. The Board notes that the examiner at the March 2002 VA examination reported that there was no Deluca issue in this case. However, as the veteran complained of pain during both the October 1999 and the March 2002 VA examinations, the Board will resolve all reasonable doubt in favor of the veteran and award the veteran a 10 percent evaluation for this time period for pain. The diagnostic codes provide additional compensable ratings for the shoulder and arm for ankylosis of scapulohumeral articulation, limitation of motion of the arm, and other impairment of the humerus. 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5201, 5202 (2007). As the veteran does not have ankylosis of scapulohumeral articulation or impairment of the humerus, Diagnostic Codes 5200 and 5202 are inapplicable. In regards to the possibility of assigning the veteran a higher evaluation for her left shoulder disability based on limitation of motion, Diagnostic Code 5201 assigns a 20 percent rating based on limitation of motion of the arm to shoulder level. Limitation of motion to midway between the side and shoulder level warrants a 30 percent rating for the major extremity and a 20 percent rating for the minor extremity. Limitation of motion to 25 degrees from the side warrants a 40 percent rating for the major extremity and a 30 percent rating for the minor extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2007). The normal range of motion of the shoulder for flexion and abduction is from 0 degrees at the side to 180 degrees over head. 38 C.F.R. § 4.71, Plate I (2007). Thus, shoulder level is at 90 degrees, and midway between the side and shoulder level is at approximately 45 degrees. As the aforementioned results from the October 1999 and March 2002 VA examinations do not indicate that the veteran's range of motion is limited to a compensable degree, as specified under this diagnostic code, a higher rating cannot be awarded for limitation of motion. In summary, for the reasons and bases expressed above, the Board has concluded that the evaluation of the veteran's service-connected chronic left shoulder pain should be increased to 10 percent for the period of December 6, 2001, to April 26, 2005, due to the veteran's complaints of pain. In addition, the Board has considered the potential application of various provisions of Title 38 of the Code of Federal Regulations, but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1) (2007). In this regard, the veteran has not identified any specific factors which may be considered to be exceptional or unusual in light of VA's schedule of ratings. There is no evidence that the veteran required frequent or lengthy periods of hospitalization for her disability during this time period, and there is no evidence of any finding of exceptional limitation for this time period beyond that contemplated by the schedule of ratings. The Board finds that the 10 percent evaluation adequately reflects the clinically established impairment experienced by the veteran. As such, referral for extraschedular consideration is not warranted. 4. Entitlement to a disability rating in excess of 10 percent for a chronic left shoulder disability, as of April 27, 2005. The veteran has been assigned an evaluation of 10 percent for her service-connected chronic left shoulder pain, effective April 27, 2005, under Diagnostic Code 5203. As mentioned in the previous section, Diagnostic Code 5203 assigns a 10 percent evaluation for nonunion of the clavicle or scapula without loose movement or malunion of the clavicle or scapula. A 20 percent evaluation is assigned for dislocation of the clavicle or scapula or nonunion of the clavicle or scapula, with loose movement. The evaluations apply to both the major and the minor joint. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. In April 2005, the veteran underwent a VA examination. Upon examination, the physician reported that the tendon reflexes, the sensation, and the grip of the left arm are normal. Anterior flexion was recorded as 180 degrees; extension was recorded as 70 degrees; abduction was recorded at 135 degrees; and external and internal rotation were recorded at 90 degrees. The examiner concluded that the veteran had a chronic recurrent left shoulder sprain with moderate symptoms, minimal physical abnormal findings, and minimal disability. X-rays of the veteran's left shoulder were taken in May 2005. These findings revealed no abnormalities. The veteran's symptoms at the time of this examination include moderate bicipital tenderness, moderate tenderness of the acromioclavicular joint, and slight pain on anterior flexion. The Board acknowledges that the RO increased the veteran's evaluation from 0 percent to 10 percent for painful motion, effective April 27, 2005, in a May 2005 RO decision. As there is no indication in the evidence of record that the veteran dislocated her clavicle or scapula, or currently has nonunion of the clavicle or scapula with loose movement, the veteran does not have any of the symptoms contemplated for a 20 percent rating under Diagnostic Code 5203, and, hence, a higher rating is not warranted under this diagnostic code. In regards to the possible applicability of other diagnostic codes used for rating disabilities of the arm and shoulder, the Board notes that there is no evidence of record indicating that the veteran has ankylosis of scapulohumeral articulation or impairment of the humerus, as of April 27, 2005. Therefore, Diagnostic Codes 5200 and 5202 are inapplicable. In addition, the range of motion results from the April 2005 VA examination do not indicate that the veteran's range of motion is limited to a compensable degree as specified under Diagnostic Code 5201. Therefore, a higher rating cannot be awarded for limitation of motion. In regards to assigning an additional disability rating according to 38 C.F.R. § 4.40, the Board acknowledges that the examiner at the April 2005 VA examination specifically noted that there is no evidence of weakness, excess fatigability, or incoordination. Minimal painful motion was noted. However, the Board finds that the veteran's pain was already taken into consideration by the RO when assigning the veteran her current 10 percent evaluation. Therefore, a higher rating cannot be assigned under 38 C.F.R. § 4.40. The Board acknowledges the veteran's assertions that her disability warrants a higher rating. See statement of accredited representative in appealed case, August 2006. The veteran can attest to factual matters of which she had first- hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, her statements regarding severity are not competent. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). While the veteran is competent to report what comes to her through her senses, she does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). In addition, the Board has considered the potential application of various provisions of Title 38 of the Code of Federal Regulations, but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1) (2007). In this regard, the veteran has not identified any specific factors which may be considered to be exceptional or unusual in light of VA's schedule of ratings. There is no evidence that the veteran requires frequent or lengthy periods of hospitalization for her disability, and there is no evidence of any finding of exceptional limitation beyond that contemplated by the schedule of ratings. The Board finds that the 10 percent evaluation adequately reflects the clinically established impairment experienced by the veteran. As such, referral for extraschedular consideration is not warranted. The Board concludes that the preponderance of the evidence is against the claim for an increased rating, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to a disability rating of 10 percent for a right breast scar from December 6, 2001, to April 18, 2004, is granted, subject to the laws and regulations controlling the award of monetary benefits. Entitlement to a disability rating in excess of 10 percent for a right breast scar as of April 19, 2004 is denied. Entitlement to a disability rating of 10 percent for a chronic left shoulder disability from December 6, 2001, to April 26, 2005, is granted, subject to the laws and regulations controlling the award of monetary benefits. Entitlement to a disability rating in excess of 10 percent for a chronic left shoulder disability as of April 27, 2005, is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs