Citation Nr: 0813135 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 04-24 209 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an initial compensable evaluation for surgical scar, right middle finger. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. A. Jonas, Associate Counsel INTRODUCTION The veteran served on active duty from November 1975 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Puerto Rico, the Commonwealth of Puerto Rico. In July 2007, the Board remanded the case to the RO via the Appeals Management Center (AMC) in order to conduct a VA examination. FINDING OF FACT The scar on the veteran's right middle finger is 7 cm long, does not limit range of motion, is not unstable, and is not painful on examination. CONCLUSION OF LAW The criteria for a compensable rating for surgical scar, right middle finger have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 7801-7805 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings 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. See 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. § 4.1 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 U.S.C.A. § 4.3. In cases where the original rating assignment is appealed, consideration must be given to whether the veteran deserves a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Such "staged ratings" are not appropriate in this case. Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion. Scars that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) are rated 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) are rated 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq.cm.) are rated 40 percent disabling. Note (1) to Diagnostic Code 7802 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Note (1) to Diagnostic Code 7802 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7803 provides a 10 percent rating for superficial unstable scars. Note (1) to Diagnostic Code 7803 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7804 provides a 10 percent rating for superficial scars that are painful on examination. Note (1) to Diagnostic Code 7804 provides that a superficial scar is one not associated with underlying soft tissue damage. Note (2) provides that a 10-percent rating will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable rating. 38 C.F.R. § 4.118. Diagnostic Code 7804 also directs the rater to see 38 C.F.R. § 4.68 (amputation rule). 38 C.F.R. § 4.118. Diagnostic Code 7805 provides that other scars are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118. The veteran is service-connected for status post fracture and dislocation of the proximal interphalangeal joint of the right middle finger with moderate degenerative joint disease and, separately, for a surgical scar resulting from open reduction and internal fixation of the fracture, which was due to an accident in active duty training when he fell from a rope. Surgery to address the fracture and dislocation of the finger resulted in a 7 cm long, 1 mm wide scar. The veteran seeks a separate compensable rating for the scar. Because of the small size of the scar, no compensable rating is warranted under DC 7802. The veteran underwent a VA examination of the scar in October 2004. The VA examiner noted that the scar was not adherent and there was no keloid formation, edema or inflammation at that time. There was no hyperpigmentation and no gross distortion of the finger. The VA examiner concluded that limitation of motion was due only to the bone fracture, open, reduced and internally fixed. Because the scar is not deep and does not cause limitation of motion, no compensable rating is warranted under DC 7801. Because the scar is not unstable, no rating can be assigned under DC 7803. The Board remanded this case for another VA examination because the October 2004 VA examiner did not specifically indicate whether the right middle finger scar causes pain on examination. The October 2004 VA examiner indicated only that the veteran complained of numbness and tingling sensation in the area of the scar. The September 2007 VA examination does specifically address the issue. The VA examiner opines that the scar is superficial with no underlying soft tissue damage and that it is not at least as likely as not objectively painful on examination. Therefore, no compensable rating is warranted under DC 7804 and the claim must be denied. Duties to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). 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 evidence 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). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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; and (3) that the claimant is expected to provide. Proper notice must also ask the claimant to provide any evidence in his or her possession that pertains to the claim. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO's September 2004 notice letter described the evidence necessary to file a claim for service connection, and met all of the requirements noted above; including informing the veteran that it was ultimately his responsibility to see to it that any records pertinent to her claims are received by VA. The veteran was given the specific notice required by Dingess v. Nicholson, 19 Vet. App. 473 (2006), in March 2006, shortly after the Dingess decision was issued. Here, the veteran is challenging the initial evaluation following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective dates have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. The Board finds no prejudice to the appellant in proceeding with the present decision. He appealed the noncompensable evaluation assigned to the right middle finger scar. As the appeal is being denied herein, any such issues are moot. In addition, he was later provided with information concerning relevant diagnostic codes and their application, and made statements indicating actual knowledge of what would be required for the increased evaluations. VA also has a duty to assist a claimant in obtaining evidence to substantiate his or his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA met its duty to assist the veteran. VA made reasonable efforts to identify and obtain relevant records in support of the veteran's claims for an increased evaluation. 38 U.S.C.A. § 5103A (a), (b), (c) (West 2002 & Supp. 2007). Specifically, the RO secured and associated with the claims file all evidence pertinent to this claim, including service medical records and VA examinations. ORDER Entitlement to an initial compensable evaluation for surgical scar, right middle finger, is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs