Citation Nr: 0812678 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 03-19 596 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES Entitlement to a combined rating in excess of 30 percent for multiple lipoma and lipoma residual scars, currently assigned separate ratings, of 10 percent each, for a left lower chest lipoma residual scar, a right thigh lipoma residual scar, and a right paraspinal region lipoma residual scar. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. McPhaull, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from February 1998 to February 2001. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision by the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection and assigned a noncompensable rating for lipoma, effective June 28, 2002 (date of the claim). A September 2003 rating decision recharacterized the lipoma entity as three separate disability entities, i.e., lipomas on the left lower chest, right thigh, and right paraspinal region, each rated 10 percent, effective from June 28, 2002. The veteran requested a Travel Board hearing; he failed to report for such hearing scheduled in April 2006. In September 2006, the case was remanded for further development. FINDINGS OF FACT Throughout the appeal period, the veteran's service connected multiple lipomas and lipoma residual scars have been manifested by no more than three tender and painful lipoma/lipoma residual scars; prior to January 3, 2006, the tender scars were on the right thigh, in the right paraspinal region, and on the left lower chest; from that date they are found in the right paraspinal region, on the left lower chest, and on the right lower abdomen. CONCLUSION OF LAW A combined rating in excess of 30 percent for multiple lipoma and lipoma residual scars is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.20, 4.118, Diagnostic Code (Code) 7804 (as in effect prior to and from August 30, 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). As noted, this appeal is from the initial rating assigned with a grant of service connection. The statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, statutory notice has served its purpose, and its application is no longer required because the claim has been substantiated. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Regardless, a May 2003 statement of the case (SOC) provided the veteran notice on the downstream issues of increased initial ratings. A September 2003 Supplemental SOC (SSOC) included the revised criteria for rating of skin disabilities. The veteran has received essentially full notice of what was needed to substantiate the claim for increase, and has been advised as to what types of evidence to submit. The claim was then readjudicated. See August 2007 SSOC. Regarding VA's duty to assist, all available pertinent medical evidence identified by the veteran has been obtained. He was asked (via September 2006 VCAA letter and pursuant to the Board remand), to provide additional information which would enable VA to help substantiate his claim. He did not respond. Furthermore, he failed to report for a VA examination (also pursuant to Board remand) scheduled in January 2007 in order to assess the current severity of his lipomas/scars. The Court has held that, "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Evidence and information from the examination would have been critical to the outcome of the determination. The Board has no choice but to decide the case based on the evidence of record. VA's duty to assist is met. The veteran is not prejudiced by the Board's proceeding with appellate review. II. Facts, Legal Criteria and Analysis The veteran's service medical records show a diagnosis of lipoma. VA medical records from June to August 2002 show removal and biopsies for multiple lipomas, to include on the back, thighs, chest and abdomen. On December 2002 VA examination, the veteran reported that biopsies in June and August 2002 were negative for malignancy. It was noted that the veteran had a small 1 cm mass in the subcutaneous tissue in the left lateral chest wall. There were multiple scars, 2 cm in the mid back, 3.5 cm in the right lateral flank and 2.0 cm in the right anterior flank. all of the scars had healed well without induration, depression or elevation. The diagnosis was angiolipoma, multiple, status post excision. In a January 2003 notice of disagreement, the veteran stated that he had several lipomas all over his body. He indicated that he had three scars on his trunk that hurt, and were sore and red. He claimed that they were disfiguring. On August 2003 VA examination, the examiner noted recurrence of lipomas under the scar on the right paraspinal region (1 cm in diameter); on the left lower chest (0.5 cm in diameter); and on the right thigh (1 cm in diameter). All of the lipoma/scars were tender. It was noted that the veteran was not currently on medication for the lipoma/scars. There were no malignancies. There was no evidence of inflammation on any of the scars. There was no noted disfigurement. The diagnosis was lipomatosis, residuals of lipoma excision - recurrence. On January 2006 VA examination, the veteran reported that he was not currently on any medication for his lipoma/scar disability. He reported residual pain to the excision sites of the right lower abdomen and the right mid-back. Physical examination revealed, non-tender lipomas of the right and left thighs. Non-tender scars were noted on the left trunk all measuring 2.5cm, slightly elevated and a light purple in color without adhesions to the underlying tissue. The right lower abdomen scar was 4cm and was tender, light purple in color and without adhesions to the underlying surface. There was a 3.5 cm scar in the right posterior flank that was non- tender, light purple in color and without adhesions to the underlying tissue. There was a 2cm scar that was tender on the right mid back that was light purple in color and without adhesions to the underlying tissue. All scars were stable and superficial. There was no inflammation, induration or inflexibility. There was no limitation of motion. The diagnosis was status post (s/p) excisions of lipomas x3, left trunk, with residual scars; s/p excision of lipoma, right posterior flank, with residual scar; s/p excision of lipomas, to right lower abdomen and right mid back, with residual scars and recurrence of lipoma mass; lipomas to right lateral thigh, and left medial thigh, proximal aspect, non-tender and no recent changes in size. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. Because the veteran's appeal of the rating for multiple lipomas and lipoma residual scars is from the initial rating assigned with the grant of service connection, the possibility of "staged" ratings for separate periods during the appeal period, based on the facts found, must be considered. Fenderson v. West, 12 Vet. App. 119 (1999). The RO has not assigned staged ratings (an interim increase was assigned retroactively for the entire appeal period). The Board finds that staged ratings are not warranted as the ratings that have been assigned for the entire period reflect the greatest degree of impairment shown at any time. The criteria for rating skin disorders were revised effective August 30, 2002 (during this appeal period). When the applicable regulations are amended during the pendency of an appeal, as here, the version of the regulations most favorable to the veteran is to be applied (from the effective date of the criteria change, but not prior See VAOPGCPREC 3- 2000). The veteran has been advised of the rating criteria changes. The veteran's multiple limpomas and lipoma residual scars are rated under Code 7804 for superficial scars. Under the pre- August 30, 2002 Code 7804 criteria, a 10 percent rating was warranted for scars that were superficial, tender and painful on objective demonstration. Under the revised Code 7804 criteria (effective from August 30, 2002), a 10 percent rating is warranted for scars that are superficial and painful on examination. 38 C.F.R. § 4.118. The Board has considered both the former and (from their effective date) the revised criteria for rating the veteran's service-connected skin disability, and finds that neither version is more advantageous to the veteran as the 10 percent rating assigned for each scar shown symptomatic is the maximum rating provided under either criteria. The critical question in this matter is the number of separate lipoma or lipoma scar sites shown. The August 2003 VA examination found 3 tender sites, on the left lower chest, the right thigh, and in the right paraspinal region. The January 2006 VA examination found that the right thigh scar was non- tender; however, it found a tender site on the abdomen. At no time during the appeal period was it shown by the record that there were more than 3 tender lipomas or lipoma residual scar sites. Accordingly, there is no basis in the evidentiary record for assigning more than three 10 percent (maximum) ratings for the lipomas/lipoma scars, and no basis for a combined rating in excess of 30 percent. See 38 C.F.R. § 4.25. The Board has considered whether the disability picture presented is such that referral for extraschedular consideration under 38 C.F.R. § 3.321 is indicated. Inasmuch as it is neither shown nor alleged that the multiple lipoma disability has required frequent hospitalization (his incisions and biopsies are outpatient procedures), caused marked interference with employment (the veteran is employed full time as a corrections officer, and it is not alleged that he has lost any significant period of time from work due to the lipomas/lipoma scars), or involves any other factors of similar gravity, referral for extraschedular consideration is not indicated. In light of the foregoing, the Board must conclude that the preponderance of the evidence is against this claim. Hence, it must be denied. ORDER A combined rating in excess of 30 percent for multiple lipoma and lipoma residual scars is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs