Citation Nr: 1007354 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 06-32 134 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUE Entitlement to an increased rating for a scar of the scalp with headaches, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD O. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the RO, which in pertinent part continued a 30 percent evaluation for a scar of the scalp with headaches. The Board remanded this case in January 2009. It returns now for appellate consideration. FINDINGS OF FACT 1. The Veteran's scar of the scalp is manifested by a superficial, nontender scar of the left frontal-parietal measuring 0.2 cm x 6 cm, with no characteristic of disfigurement. 2. The Veteran's migraine headaches are manifested by prostrating attacks several times a week, lasting 3 to 4 hours at a time, and productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an increased rating of 50 percent, but no higher, for a scar of the scalp with headaches are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7800, 4.124a, Diagnostic Code 8100 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims file, and has an obligation to provide reasons and bases supporting the 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 appellant 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 appellant. 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 claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his 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); 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 possession that pertains to the claim. The requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Any error related to this element is harmless. For an increased compensation claim, the veteran must be notified that he 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. Additionally, 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. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded by, Vazquez-Flores v. Shinseki, --- F.3d ----, 2009 WL 2835434 (Fed. Cir. Sep 04, 2009). Recently, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the notice described in 38 U.S.C. § 5103(a) need not be veteran specific, i.e., it need not notify the veteran of alternative diagnostic codes, and that that the statutory scheme does not require "daily life" evidence for proper claim adjudication. Vazquez-Flores v. Shinseki, --- F.3d ----, 2009 WL 2835434 (Fed. Cir. Sep 04, 2009). Thus, any error related to the aforementioned is harmless. Prior to and following the initial adjudication of the Veteran's claim, letters dated in October 2003, December 2006 and March 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Pelegrini II, 18 Vet. App. at 120-21; Vazquez-Flores, supra. The letters advised the Veteran of the information necessary to substantiate the claim, and of his and VA's respective obligations for obtaining specified different types of evidence. The Veteran was informed of the specific types of evidence he could submit, which would be pertinent to his claim, and advised to send any medical reports that he had. He was also told that it was ultimately his responsibility to support the claim with appropriate evidence. In addition, the Veteran was provided notice concerning the assignment of disability ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). Subsequent to the issuance of the December 2006 and March 2009 letters, the Veteran's claim was readjudicated in a November 2009 supplemental statement of the case (SSOC). Thus, there was no deficiency in notice and a harmless error analysis is not necessary. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. 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. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2009). The RO provided the Veteran appropriate VA examinations in March 2007 and June 2009. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. 38 C.F.R. § 3.327(a). 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. VAOPGCPREC 11-95. The Board finds the examination reports to be comprehensive and sufficient in assessing the severity of the Veteran's disability. In this regard, it is noted that the examiner reviewed the Veteran's medical records prior to each examination, and provided a summary of the relevant findings therein. Significantly, the examiner at the June 2009 examination reviewed the claims file, and addressed the Veteran's symptoms of headaches. The opinions rendered by the examiners are supported by objective and clinical findings. The Board, therefore, concludes that the 2007 and 2009 examination reports are adequate upon which to base the decision in this case. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 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. Increased Rating The Veteran seeks an increased rating for his service- connected scar of the scalp with headaches, currently evaluated as 30 percent disabling. 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; 38 C.F.R. § 4.1. 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already 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). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board acknowledges that the Veteran is competent to give evidence about what he experienced; for example, he is competent to report that he experiences certain symptoms. See, e.g., Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Veteran currently receives a 30 percent evaluation for a scar of the scalp with headaches under Diagnostic Code 7800- 8100. Diagnostic Code 7800 rates disfigurement of the head, face or neck, whereas Diagnostic Code 8100 rates migraines. 38 C.F.R. § 4.118, Diagnostic Code 7800; 38 C.F.R. § 4.124a, Diagnostic Code 8100. Diagnostic Code 7800 provides that a skin disorder with one characteristic of disfigurement of the head, face, or neck is rated 10 percent disabling. A skin disorder of the head, face, or neck with 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 two or three characteristics of disfigurement, is rated 30 percent disabling. A skin disorder of the head, face, or neck with 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, is rated 50 percent disabling. A skin disorder of the head, face, or neck with 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, is rated 80 percent disabling. Note (1) to Diagnostic Code 7800 provides that the 8 characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118, are: Scar is 5 or more inches (13 or more cm.) in length. Scar is at least one-quarter inch (0.6 cm.) wide at the widest part. Surface contour of scar is elevated or depressed on palpation. Scar is adherent to underlying tissue. Skin is hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.). Skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.). Underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.). Skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). The Veteran was afforded VA examinations in March 2007 and June 2009 VA to assess the current nature and severity of his service-connected scar. At the March 2007 examination, it was noted that the Veteran had a history of a single scar in the left parietal area that had been the result of a gun shot wound. The Veteran reported that his scar was often tender, but that it was nontender at the time. The examiner noted that the scar could not be identified by the examiner himself or the Chief of Dermatology, even when the Veteran pointed out the exact location of the scar. The diagnosis was a left parietal area (by history) superficial scar from battle rifle injury that was not presently apparent to two M.D. examiners. On examination in June 2009, it was noted that there were no symptoms or complaints relative to the scar except slight occasional soreness. There were no changes to the Veteran's routine daily activities or employment due to the scar or disfigurement. The scar did not break down frequently, and there was no evidence of inflammation, edema or keloid. The scar was superficial and nontender to palpation, and there was no limitation of motion or function associated with the scar. Physical examination revealed a 0.2 cm x 6 cm left frontal-parietal slightly pale longitudinal, linear scar with slightly darkened margins. The scar was not visible unless lighted tangentially. Findings were negative for tenderness on palpation, adherence to underlying tissue, limitation of motion or loss of function, underlying soft tissue damage, skin ulceration or breakdown over scar, underlying tissue loss, elevation of scar, depression of scar, disfigurement of head, face or neck, and induration or inflexibility. The scar was the same color as normal skin, and the texture of the scarred area was normal. The diagnosis was a scar of the left frontal scalp secondary to shrapnel wound. Based on the aforementioned examination results, the Board finds that the Veteran's scar does not meet the criteria for a compensable rating under Diagnostic Code 7800. See 38 C.F.R. § 4.31. The scar is not manifested by any of the 8 characteristics of disfigurement listed under Note (1) to Diagnostic Code 7800, as is required for a 10 percent rating. The Board notes that the Veteran's headache symptoms are not contemplated by the scars rating criteria under Diagnostic Code 7800. Thus, the Board will now consider whether a rating in excess of 30 percent disabling is warranted for these symptoms under Diagnostic Code 8100, which rates migraine headaches. Under Diagnostic Code 8100, migraine headaches with less frequent attacks than the criteria for a 10 percent rating are rated as noncompensably (0 percent) disabling. Migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months are rated 10 percent disabling. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent disabling. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. 38 C.F.R. § 4.124a. Medical evidence shows that the Veteran has been followed by VA for his chronic headaches. Lay statements submitted by the Veteran's wife and friends attest to the severity and frequency of his headaches. The Veteran's headaches were evaluated at the June 2009 examination. The Veteran reported the onset of his headaches being in service, after he was struck by a piece of shrapnel in the left head in 1970. He indicated that his headaches involved the entire scalp and occurred practically every day. Several times a week, the headaches would be debilitating, requiring him to go to bed and take lortab. These headaches usually lasted 3 to 4 hours. The Veteran had occasional nausea and vomiting with headaches and some photophobia, but no visual symptoms. These frequent headaches interfered with his usual activities of daily living, including watching television and reading. The Veteran's wife reported that he was unable to visit friends or go out because of his frequent headaches. It was noted that the headaches had gotten progressively worse since their onset, that the current treatment was with medication, and that the response to this treatment had been fair. On motor examination, strength, muscle tone and muscle bulk were normal. Sensory examination revealed decreased light touch, decreased sharp dull feel, absent vibratory sense at the feet, and absent position sense at the feet. There was a normal fundoscopic examination, normal cerebellar examination, normal mental status, and no evidence of chorea or carotid bruit. All cranial nerves were intact. All reflexes were 0-1/4 symmetrically. Review of a February 2008 MRI of the brain revealed: (1) minimal atrophy and a single nonspecific T2 signal in the periventricular white matter, noted as chronic paranasal sinuses disease; and (2) tiny right vertebral artery, otherwise normal MRA of the Circle of Willis. The Veteran was diagnosed with chronic headaches, mixed migrainous, tension. It was noted that the headaches had severe effects on sports, and moderate effects on chores, shopping, exercise, recreation and traveling. As noted above, the Veteran is currently assigned a 30 percent rating for his service-connected scar of the scalp with headaches. In order to meet the criteria for a higher rating of 50 percent under Diagnostic Code 8100, the Veteran must be shown to have migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Board finds that these criteria have been met. The evidence summarized above demonstrates that the Veteran suffers from prostrating attacks several times a week and that each of these episodes typically last 3 to 4 hours. These headaches are shown to interfere significantly with his daily activities. Although the Veteran is unemployed and is receiving non-service- connected pension benefits, the evidence is at least in equipoise in showing that the severity of his headaches would otherwise be productive of severe economic inadaptability. Accordingly, a 50 percent rating for the Veteran's scar of the scalp with headaches is warranted under Diagnostic Code 8100. The Board has considered the rule for staged ratings. Fenderson, supra; Hart, supra. However, as the evidence does not show that the criteria for a rating in excess of 50 percent have been met at any time during the period on appeal, the Board concludes that staged ratings are inapplicable. The Board has considered whether a referral for extraschedular rating is warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required. See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate is required for extraschedular consideration referral). The schedular evaluation for the Veteran's scar of the scalp with headaches is not inadequate. His complained-of symptoms are those contemplated by the rating criteria. There are no symptoms left uncompensated or unaccounted for by the assignment of a schedular rating. In other words, he does not have any symptoms from his service-connected disorder that are unusual or are different from those contemplated by the schedular criteria. The available schedular evaluations for that service-connected disability are adequate. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extraschedular consideration is moot. See Thun, supra. As such, the Board concludes that an increased rating of 50 percent, but no higher, is warranted for the Veteran's scar of the scalp with headaches. The benefit-of-the-doubt rule has been applied in arriving at this decision. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER An increased rating of 50 percent, but no higher, for a scar of the scalp with headaches is granted, subject to the laws and regulations controlling the award of monetary benefits. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs