Citation Nr: 0813736	
Decision Date: 04/25/08    Archive Date: 05/01/08

DOCKET NO. 06-15 762	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, 
Massachusetts


THE ISSUES

1. Entitlement to service connection for residuals of spinal 
meningitis.

2. Entitlement to an initial compensable rating for scar, 
laceration, left supra-orbital (eye).


REPRESENTATION

Appellant represented by:	Massachusetts Department of 
Veterans Services


ATTORNEY FOR THE BOARD

M. J. O'Mara, Associate Counsel




INTRODUCTION

The veteran had active service from October 1942 to January 
1946.

These matters are before the Board of Veterans' Appeals 
(Board) on appeal from a June 2005 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Augusta, Maine, which denied the claim for service connection 
for spinal meningitis, and granted service connection for 
scar, laceration, left supra-orbital, and assigned a 
noncompensable (0 percent) rating, effective June 14, 2004.

The Board's decision on the claim for an initial higher 
rating for scar, laceration, left supra-orbital (eye) is set 
forth below. The claim for service connection for residuals 
of spinal meningitis is addressed in the remand following the 
order; this matter is being remanded to the RO via the 
Appeals Management Center (AMC) in Washington, D.C. VA will 
notify the veteran when further action, on his part, is 
required.


FINDING OF FACT

Scar, laceration, left supra-orbital (eye) manifests 
primarily with a scar over the eye measuring 4.5 centimeters 
by 0.4 centimeters.


CONCLUSION OF LAW

The requirements for an initial compensable rating for scar, 
laceration, left supra-orbital (eye) have not been met. 38 
U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2007); 38 
C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.118, Diagnostic Code 7800 
(2007).




REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

Under the Veterans Claims Assistance Act (VCAA) Pub. L. No. 
106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. 
§§ 5100, 5102, 5103, 5103A, 5107 (West 2002), the Board is 
required to address the duty to notify and duty to assist 
imposed by 38 U.S.C.A. §§ 5103, 5103(A) and 38 C.F.R. § 
3.159.

VA has a duty to notify a claimant and his representative, if 
any, of the information and evidence needed to substantiate a 
claim. This notification obligation was accomplished by way 
of RO letters dated in June 2004, prior to the initial 
adjudication of the veteran's claim, and January 2007, after 
the initial adjudication of the veteran's claim. These 
letters effectively satisfied the notification requirements 
of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) 
informing the veteran about the information and evidence not 
of record that was necessary to substantiate the claim for an 
initial higher rating; (2) informing the veteran about the 
information and evidence VA would seek to provide; (3) 
informing the veteran about the information and evidence he 
was expected to provide; and (4) requesting the veteran 
provide any evidence in his possession that pertains to his 
claim. The January 2007 2006 RO letter advised the veteran of 
how VA assigns disability ratings and effective dates and 
complies with the holding of Dingess v. Nicholson, 19 Vet. 
App. 473 (2006). The RO did not readjudicate the veteran's 
claim after providing him notice included in the January 2007 
RO letter; however, the record shows that the veteran was 
given an opportunity to submit additional evidence pertinent 
to his claim but did not submit such evidence prior to 
certification of his appeal to the Board. Therefore, 
readjudication of the veteran's claim was unnecessary.

In Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Court 
found that, at a minimum, adequate notice under the law 
requires that VA notify the claimant that, to substantiate a 
claim for an increased rating: (1) the claimant must provide, 
or ask VA 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; and (4) the notice must also provide 
examples of the types of medical and lay evidence that the 
claimant may submit (or ask VA to obtain) that are relevant 
to establishing entitlement to increased compensation. 

The June 2004 and January 2007 VCAA letters do not contain 
the level of specificity set forth in Vazquez-Flores. 
However, such procedural defect does not constitute 
prejudicial error in this case because (1) given the 
procedural history of the appeal with its attendant notice, a 
reasonable person would have been expected to be aware of 
what evidence would have substantiated the claim, and (2) the 
record suggests actual knowledge on the part of the veteran 
of what was needed to substantiate the claim. See Sanders v. 
Nicholson, 487 F.3d 881 (Fed. Cir. 2007).  

The record includes statements from the veteran during the 
July 2004 VA examination and in the July 2005 notice of 
disagreement (NOD), in which a description was made as to the 
effect of the service-connected disability on his daily life. 
This statement indicates an awareness on the part of the 
veteran that information about such effects, with specific 
examples, is necessary to substantiate a claim for a higher 
evaluation. Significantly, the Court in Vazquez-Flores held 
that actual knowledge is established by statements or actions 
by the claimant or the claimant's representative that 
demonstrate an awareness of what was necessary to 
substantiate his or her claim." Vazquez-Flores, 22 Vet. App. 
at 48; see Dalton v. Nicholson, 21 Vet. App. 23, 30-31 
(2007). In addition, the January 2007 letter informed the 
veteran that a disability rating would be based in part on 
the impact of the veteran's condition and his symptoms on 
employment. Further, the letter stated that evidence that 
would be used to establish a disability rating included VA 
treatment records, Social Security determinations, statements 
from employers regarding job performance and lost time, and 
lay statements from others that have witnessed his condition. 
Hence, the showing of actual knowledge and notification to 
the veteran satisfies the first and fourth requirements of 
Vazquez-Flores.

Finally, the June 2005 rating decision includes a discussion 
of the rating criteria used in the present case, and this 
criteria was set forth in further detail in the March 2006 
statement of the case (SOC). The veteran was accordingly made 
well aware of the requirements for a higher rating pursuant 
to the applicable diagnostic criteria, and such action thus 
satisfies the second and third notification requirements of 
Vazquez-Flores.

Second, VA has a duty to assist a veteran in obtaining 
evidence necessary to substantiate a claim. In a July 2004 
response to the RO's request for the veteran's service 
medical records, the National Personnel Records Center (NPRC) 
indicated that the veteran's service medical records were not 
on file and were likely destroyed by fire. In this situation, 
VA has a heightened duty to assist the veteran in development 
of his claim. O'Hare v. Derwinski, 1 Vet. App. 365, 367 
(1991). In a June 2004 letter, the RO informed the veteran 
that his service medical records were unavailable and 
requested that he submit alternative records to show that he 
incurred an injury or disease in service. 

In addition, a portion of the veteran's service medical 
records are of record and the veteran has submitted records 
that were in his possession. Therefore, the heightened duty-
to-assist has been met here, as the evidence reflects that 
further efforts to obtain the veteran's service medical 
records would be futile, see 38 C.F.R. § 3.159(c)(2) (2007) 
(VA will end efforts to obtain federal records where federal 
department or agency advises that requested records do not 
exist or custodian does not have them), and the veteran has 
submitted records in his possession. Further, some service 
medical records have been obtained.

Moreover, a private medical record, and a report of VA 
examination are associated with the claims file.

The veteran has not made the RO or the Board aware of any 
additional evidence that needs to be obtained in order to 
fairly decide his claim. As such, all relevant evidence 
necessary for an equitable disposition of the veteran's 
appeal has been obtained and the case is ready for appellate 
review.


Merits of the Claim

The veteran contends that his scar, laceration, left supra-
orbital (eye) is more severe than the current evaluation 
reflects. He asserted in his July 2005 NOD that at times his 
eye would swell and caused pain and a headache. Having 
carefully considered the claim in light of the record and the 
applicable law, the Board is of the opinion that the 
veteran's subjective reports of the severity of the disorder, 
as applied to the applicable rating provisions, are not 
substantiated by the competent clinical evidence of record. 
Because the preponderance of the evidence is against the 
claim, the appeal will be denied.

Disability evaluations are determined by the application of a 
schedule of ratings which is based on average impairment of 
earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 
Part 4 (2007). Separate diagnostic codes identify the various 
disabilities. When a question arises as to which of two 
ratings apply under a particular diagnostic code, the higher 
evaluation is assigned if the disability more nearly 
approximates the criteria for the higher rating; otherwise, 
the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). 
After careful consideration of the evidence, any reasonable 
doubt remaining is resolved in favor of the veteran. 38 
C.F.R. § 4.3 (2007).

The veteran's entire history is to be considered 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). However, where 
the question for consideration is entitlement to a higher 
initial rating assigned following the grant of service 
connection, evaluation of the medical evidence since the 
grant of service connection and consideration of the 
appropriateness of "staged rating" (assignment of different 
ratings for distinct periods of time, based on the facts 
found) is required. Fenderson v. West, 12 Vet. App. 119, 126 
(1999).

The veteran's scar, laceration, left supra-orbital (eye) is 
rated in accordance with 38 C.F.R. § 4.118, Diagnostic Code 
7800. The regulation states that disfigurement of the head, 
face, or neck warrants a 10 percent rating, where there is 
one characteristic of disfigurement. A 30 percent rating is 
warranted when there is 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 2 or 3 
characteristics of disfigurement. A 50 percent rating is 
warranted for 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. An 80 percent rating is 
warranted for 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. 38 C.F.R. 
§ 4.118, Diagnostic Code 7800.

Under the revised rating criteria, the eight characteristics 
of disfigurement for the purposes of evaluation under 38 
C.F.R. § 4.118 are (1) scar 5 inches or more (13 or more 
centimeters) in length; (2) scar at least one-quarter inch 
(0.6 centimeters) wide at its widest point; (3) surface 
contour of the scar elevated or depressed on palpation; (4) 
scar adherent to the underlying tissue; (5) skin hypo or 
hyperpigmented in an area exceeding 6 square inches; (6) skin 
texture abnormal (irregular, atrophic, shiny, scaly, et 
cetera) in an area exceeding 6 square inches (39 square 
centimeters); (7) underlying soft tissue missing in an area 
exceeding 6 square inches (39 square centimeters); (8) skin 
indurated and inflexible in an area exceeding 6 square inches 
(39 square centimeters). 38 C.F.R. § 4.118, Diagnostic Code 
7800, Note (1). Unretouched color photographs are to be taken 
into consideration. 38 C.F.R. § 4.118, Diagnostic Code 7800. 
Note (3).

On July 2004 VA examination, the veteran denied recurring 
headaches and dizziness. He reported that there was no 
functional impairment resulting from the scar. Physical 
examination revealed that the scar was on the left supra 
orbital area and measured about 4.5 centimeters (cm) by 0.4 
cm. There was no tenderness, disfigurement, ulceration, 
adherence, instability, tissue loss, Keloid formation, 
hypopigmentation, hyperpigmentation, abnormal texture, or 
limitation of motion. The only objective factor noted was a 
scar.

Based on objective examination, the veteran's scar does not 
meet any of the eight characteristics noted in 38 C.F.R. 
§ 4.118, Diagnostic Code 7800. As such, his scar does not 
meet the measurement requirements in length or width. Id. The 
scar also did not meet any of the remaining eight 
characteristics required for a compensable rating. Id. 

Hence, a compensable rating for scar, laceration, left supra-
orbital (eye) is not warranted. Staged ratings pursuant to 
Fenderson were also considered; however, based on the 
evidence of record, a staged rating is also not warranted. 
Because the preponderance of the evidence is against the 
veteran's claim, the doctrine of reasonable doubt is not for 
application. 38 U.S.C.A. § 5107(b).


ORDER

An initial compensable rating for scar, laceration, left 
supra-orbital (eye) is denied.


REMAND

The Board's review of the claims file reveals that further RO 
action on the claim for service connection for residuals of 
spinal meningitis, for a medical opinion, is warranted.

The service medical records show that in November 1942, the 
veteran was diagnosed with acute meningitis cerebro spinal 
(epidemic). In September 1943, the veteran complained of pain 
in his legs. Physical examination revealed no orthopedic 
reason responsible for the veteran's alleged pain in his 
legs. January 1946 separation Report of Medical Examination 
revealed that the veteran had no musculoskeletal defects or 
neurological diagnosis.

Post-service, the July 2004 VA examiner noted that the 
veteran reported his meningitis was caused by high fever and 
leg pain. The veteran stated that his functional impairment 
was pain in his legs. Physical examination revealed that 
sensory function in the bilateral lower extremities was 
abnormal with a finding of minimal impairment. After physical 
examination, the diagnosis was claimed cerebro spinal 
meningitis, with no current diagnosis because the condition 
was resolved.

Subsequent to the July 2004 VA examination, the veteran 
submitted a letter from a non-VA physician, D.M., M.D., that 
states that spinal meningitis was sometimes associated with 
neuromuscular weakness, which sometimes continued through 
life. He further stated that although there were many causes 
of neuromuscular weakness, the veteran's neuromuscular 
weakness might be due to his spinal meningitis.

Regarding the July 2004 VA physician's diagnosis, initially, 
the Board notes that the physician did not indicate whether 
he had reviewed the veteran's claims file. See Shipwash v. 
Brown, 8 Vet. App. 218, 222 (1995); Flash v. Brown, 8 Vet. 
App. 332, 339-340 (1995) (Regarding the duty of VA to provide 
medical examinations conducted by medical professionals with 
full access to and review of the veteran's claims folder). 
Further, although the July 2004 VA physician noted that the 
cerebro spinal meningitis had resolved, the physician did not 
indicate whether the veteran had any residuals related to his 
in-service diagnosis of cerebro spinal meningitis, as is 
suggested by the April 2005 non-VA physician, Dr. D.M. Hence, 
the Board finds that clarification on the VA physician's July 
2004 diagnosis, after review of the claims file, to include 
the April 2005 medical record from Dr. D.M., is necessary.

Therefore, the RO/AMC should return the claims file to the 
July 2004 VA physician, S.R., M.D., to obtain a clarifying 
opinion as to whether the veteran has any residuals from his 
in-service diagnosis of cerebro spinal meningitis, to 
specifically include whether the veteran has any bilateral 
lower extremity neuromuscular disorder that is a residual of 
his in-service diagnosis. See 38 C.F.R. § 4.2 (stating that 
if the findings on an examination report do not contain 
sufficient detail, it is incumbent upon the rating board to 
return the report as inadequate for evaluation purposes).

If the July 2004 VA physician is unavailable, the claims file 
should be sent to another physician to obtain the above 
opinion. The RO/AMC should arrange for the veteran to undergo 
examination if the designated physician is unable to provide 
the requested opinion without examining the veteran.

Accordingly, the case is REMANDED for the following action:

1. The veteran's claims file will be sent 
to the July 2004 VA physician, Dr. S.R., or 
if that physician is not available, an 
appropriate VA physician, who will be 
requested to address whether based on 
review of the claims file, to specifically 
include the April 2005 letter from Dr. 
D.M., the veteran has a neuromuscular 
disorder of the bilateral lower extremities 
that is a residual of his in-service 
diagnosis of cerebro spinal meningitis.

If the VA physician is not able to render 
an opinion without examination of the 
veteran, the veteran should be afforded a 
VA examination in relation to his claim for 
service connection for residuals of spinal 
meningitis, to answer the question as noted 
above. Any and all indicated evaluations, 
studies and tests deemed necessary by the 
physician should be accomplished. The 
physician must review all pertinent records 
associated with the claims file.

A clear rationale for all opinions is 
required, to include a discussion of the 
facts and medical principles involved. 
Copies of all pertinent records in the 
veteran's claims file, or in the 
alternative, the claims file, must be made 
available to the physician for review in 
connection with the examination.

The veteran has the right to submit additional evidence and 
argument on the matter the Board has remanded. 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).




______________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals







 Department of Veterans Affairs