Citation Nr: 1009243 Decision Date: 03/11/10 Archive Date: 03/17/10 DOCKET NO. 08-22 361 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial compensable rating for scar/burn of the right shoulder. 2. Entitlement to an initial compensable rating for scar/burn of the left shoulder. REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD Jared Haynie, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1951 to June 1955, from October 1962 to November 1962, and from January 1966 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's service-connected scar/burn of the right shoulder is painful and hurts on movement, covers an area of approximately 100 square centimeters, and has underlying soft tissue damage. It is not unstable, superficial, or results in loss of function or loss of range of motion. 2. The Veteran's service-connected scar/burn of the left shoulder is painful and hurts on movement, covers an area of approximately 45 square centimeters; and is superficial. It is does not have underlying soft tissue damage, is unstable, or results in loss of function or loss of range of motion. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 20 percent, but no more, for scar/burn of the right shoulder, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code (DC) 7801 (2008). 2. The criteria for an initial disability rating of 10 percent, but no more, for scar/burn of the left shoulder, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code (DC) 7804 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). 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; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. The Board observes that the Veteran has appealed with respect to the propriety of the initially assigned ratings for his scars/burns of the bilateral shoulders from the original grant of service connection. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court 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 claim for service connection for scars/burns of the bilateral shoulders was granted and initial noncompensable ratings were assigned in the January 2008 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned ratings, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Relevant to the duty to assist, service treatment records and VA treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. Additionally, he was provided with a VA examination in January 2008 in order to adjudicate his initial rating claims. Neither the Veteran nor his representative have argued that such examination is inadequate for rating purposes. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities. The rating percentages represent, as far as practically can be determined, the average impairment of the Veteran's earning capacity. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, VA must consider the entire history of the disability. 38 C.F.R. § 4.1; see also Schafrath v. Derwinski, 1 Vet. App. 589, 596 (1991) (rating decisions must be based on a review of the "full recorded history of the condition"). VA assigns the disability rating that most closely reflects the level of social and occupational impairment a Veteran is suffering. Where a question arises as to which of two ratings to apply, the higher rating will be assigned if the "disability picture" more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises as to the degree of a Veteran's disability, VA resolves the doubt in the Veteran's favor. 38 C.F.R. § 4.3. When assigning a disability rating, VA is obligated to consider whether a Veteran is entitled to "staged" ratings (separate ratings assigned for separate time periods). Fenderson v. West, 12 Vet. App. 119, 126 (1999) (staged ratings for initial rating claims). In January 2008, the RO established service connection for scars/burns of the right and left shoulders, and assigned separate noncompensable disability ratings at that time. The Veteran contends he is entitled to an initial compensable disability rating for each of his service-connected scars/burns as they are painful and hurt with movement. The RO rated the Veteran's scars/burns of the right and left shoulders under Diagnostic Code (DC) 7804, which pertains to superficial and painful scars. 38 C.F.R. § 4.118, DC 7804 (2008). Under DC 7804, a maximum 10 percent rating is warranted when there are scars that are superficial and painful on examination. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7804. Diagnostic Codes 7801, 7802, 7803, and 7805 are also relevant to evaluating scars not of the head, face, or neck. Specifically, DC 7801 provides for a 10 percent rating when there is scarring-not of the head, face, or neck-that (1) is deep or causes limited motion and (2) covers an area or areas exceeding 6 square inches (39 sq. cm.). A 20 percent rating is warranted when such scar(s) cover(s) an area or areas exceeding 12 square inches (77 sq. cm.). A 30 percent rating is warranted when such scar(s) cover(s) an area or areas exceeding 72 square inches (465 sq. cm.). Scars in widely separated areas, as on two or more extremities, are rated separately and combined in accordance with 38 C.F.R. § 4.25. 38 C.F.R. § 4.118, DC 7801. Under DC 7802, a maximum 10 percent rating is warranted when there is superficial scarring-not of the head, face, or neck-that does not cause limited motion and that covers an area or areas of 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118, DC 7802. Under DC 7803, a maximum 10 percent rating is warranted when there are superficial, unstable scars. 38 C.F.R. § 4.118, DC 7803. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Under DC 7805 provides that scars may also be rated on the limitation of function of the affected part. The Board notes that in October 2008 the regulations pertaining to the evaluation of scars were amended effective October 23, 2008. The Board observes that the regulatory changes only apply to applications received by VA on or after October 23, 2008, or if the Veteran requests review under the revised criteria. See 73 Fed. Reg. 54708 (Sept. 23, 2008). As neither situation applies in this case, the Board finds the 2008 changes to be inapplicable. Turning to the relevant evidence of record, the record shows that the Veteran underwent a VA examination in January 2008. Physical examination showed that the Veteran had two scars- one on each shoulder-that resulted from burns he sustained in service during a drill in which he was trying to extinguish a fire in an airplane. The burn, and the resulting scar, on the right shoulder was worse than the scar/burn on the left shoulder. Examination of the right shoulder revealed a scar, almost oval shaped, located on the lateral aspect of the right shoulder over the deltoid muscle, approximately 10 cm. in length and 10 cm. in width. It was atrophic in appearance. Physical examination revealed some degree of discoloration (scar appeared whiter than the surrounding skin); minimal to mild underlying tissue loss; mild to moderate induration of the scar by palpation in comparison with the surrounding skin; adherence to underlying tissue; and underlying soft tissue damage. There was no keloid formation; no resulting loss of function or loss of range of motion; no significant elevation or depression; no pain; no tenderness on palpation; and no skin ulceration or breakdown over the scar. Examination of the left shoulder revealed an oval-shaped scar located at the lateral aspect of the left shoulder, of blurred borders, approximately 9 cm. in length and 5 cm. in width. It was more or less irregularly atrophic in appearance, but much less so than the scar of the right shoulder. There was no keloid formation; no elevation or depression; no resulting loss of function or loss of range of motion; no pain; no tenderness on palpation; no adherence to underlying tissue; no underlying soft tissue damage; and no skin ulceration or breakdown over the scar. After reviewing the evidence, the Board finds that the Veteran's service-connected scar/burn of the right shoulder warrants an initial rating of 20 percent, but no more; and that the Veteran's service-connected scar/burn of the left shoulder warrants an initial rating of 10 percent, but no more. As noted above, scars in widely separated areas, as on two or more extremities, are rated separately and combined in accordance with 38 C.F.R. § 4.25. 38 C.F.R. § 4.118, DC 7801. Accordingly, the Board will rate the Veteran's scar/burn of the right shoulder separately from the scar/burn of the left shoulder. Relevant to the Veteran's scar/burn of the right shoulder, the Board finds that he is entitled to an initial rating of 20 percent under DC 7801. Under that DC, a 20 percent rating is warranted for a deep scar that covers an area of at least 12 square inches (77 sq. cm.). Here, the Veteran's scar/burn of the right shoulder is deep, as it is associated with underlying soft tissue damage, and covers an area of approximately 100 square centimeters. The scar does not warrant a 30 percent rating under DC 7801 because it does not cover an area of at least 72 square inches (465 sq. cm.). As a 20 percent rating is higher than those allowed for under DCs 7802, 7803, and 7804, the Board finds that the Veteran is not entitled to higher ratings under such DCs. Likewise, he is not entitled to separate ratings as his scar/burn of the right shoulder does not cover an area greater than 144 square inches (929 sq. cm.), is not unstable (i.e., frequent loss of covering of skin over the scar), or is superficial (i.e., not associated with underlying soft tissue damage). Under DC 7805, the Veteran's scar may also be rated on the limitation of function of the affected part. In this regard, the Board notes that the January 2008 examiner observed that, while the Veteran had a loss of range of right shoulder motion, such was more likely than not caused by degenerative joint disease versus rotator cuff rather than the scar. Moreover, the examiner determined that there was no resulting loss of function or loss of range of motion. Therefore, no further consideration under DC 7805 is warranted. Relevant to the Veteran's scar/burn of the left shoulder, the Board finds that he is entitled to an initial rating of 10 percent under DC 7804. Such DC provides for a 10 percent rating where there the scar is superficial and painful on examination. In this regard, the Board observes that such scar is superficial in that it is not associated with underlying soft tissue damage. Specifically, at the January 2008 VA examination, it was observed that the Veteran's scar/burn of the left shoulder had no underlying soft tissue damage. Additionally, while the January 2008 VA examination revealed that such is not tender to palpation, the Veteran indicated in his July 2008 substantive appeal that his scar was painful and hurt with movement. The Board finds that the Veteran is competent to testify as to the pain he experiences as a result of his scar/burn. Therefore, resolving any doubt in his favor, the Board finds that he is entitled to an initial 10 percent rating under DC 7804 for his scar/burn of the left shoulder. However, the Veteran is not entitled to an initial rating in excess of 10 percent for his scar/burn of the left shoulder. In this regard, a rating of 10 percent is the maximum allowed under DC 7804. Additionally, as such scar is not deep (i.e., associated with underlying soft tissue damage), covers an area in excess of 45 square inches (as demonstrated at his January 2008 VA examination), and is not unstable (i.e., frequent loss of covering of skin over the scar), higher or separate ratings are not warranted under DC 7801, 7802, or 7803. Under DC 7805, the Veteran's scar may also be rated on the limitation of function of the affected part. However, at the January 2008 VA examination, it was observed that the Veteran did not have any complaints of limitation of left shoulder range of motion. Moreover, the examiner determined that there was no resulting loss of function or loss of range of motion. Therefore, no further consideration under DC 7805 is warranted. Therefore, the Board finds that the Veteran is entitled to an initial rating of 20 percent for his scar/burn of the right shoulder and an initial rating of 10 percent for his scar/burn of the left shoulder. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Board finds that a claim for a TDIU was not expressly raised by the Veteran or reasonably raised by the record. In this regard, the Veteran has not indicated, nor does the evidence otherwise show, that he is unemployed due to his scars/burns of his bilateral shoulders. Moreover, insofar as the Veteran's bilateral shoulder scars/burns interfere with his employability, the Board finds that such is contemplated by his assigned evaluations under the rating schedule. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Therefore, as the Board has determined that a claim for TDIU has not been raised by the Veteran or the evidence of record, higher ratings for the Veteran's disabilities may only be awarded on an extra-schedular basis. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra- schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that 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, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected bilateral shoulder scars/burns with the established criteria found in the rating schedule. The Board finds that the Veteran's bilateral shoulder scars/burns symptomatology is fully addressed by the rating criteria under which such disabilities are rated. There are no additional symptoms of his bilateral shoulder scars/burns that are not addressed by the rating schedule. Therefore, the Board finds that the rating criteria reasonably describes the Veteran's disability level and symptomatology for his service-connected disabilities. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Moreover, to the extent that the Veteran's bilateral shoulder scars/burns may interfere with his employability, such interference is addressed by the schedular rating criteria. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Therefore, the Board finds that there are no attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In sum, the Board finds that an initial rating of 20 percent for the Veteran's scar/burn of the right shoulder and an initial rating of 10 percent for his scar/burn of the left shoulder is warranted for the entire appeal period. The Board, however, finds that the preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 20 percent for his scar/burn of the right shoulder and an initial rating in excess of 10 percent for his scar/burn of his left shoulder. In making such determination, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER An initial 20 percent disability rating, but no more, for scar/burn of the right shoulder is granted, subject to the laws and regulations governing the payment of monetary awards. An initial 10 percent disability rating, but no more, for scar/burn of the left shoulder is granted, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ A. JAEGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs