Citation Nr: 1010107 Decision Date: 03/17/10 Archive Date: 03/24/10 DOCKET NO. 07-28 099 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUES 1. Whether new and material evidence has been received to reopen the previously denied claim of service connection for fracture, mandible, left. 2. Whether new and material evidence has been received to reopen the previously denied claim of service connection for osteoarthritis of the right elbow. 3. Whether new and material evidence has been received to reopen the previously denied claim of service connection for osteoarthritis of the right wrist. 4. Whether new and material evidence has been received to reopen the previously denied claim of service connection for osteoarthritis of the hip. 5. Entitlement to service connection for claimed low back disorder. 6. Entitlement to service connection for a claimed right hand disorder. 7. Entitlement to an evaluation in excess of 10 percent for the service-connected disfiguring facial scar. 8. Entitlement to an evaluation in excess of 10 percent for the service-connected scar, left side of face. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD C. Bosely, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1973 to May 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from three RO rating decisions. First, the RO issued a rating decision in August 2005 increasing the evaluation for the service-connected scar, left side of face, from noncompensable to 10 percent, effective on November 5, 2004, which was the date of the Veteran's claim for an increased rating. Second, the RO issued a rating decision in October 2006 assigning a separate evaluation for the service-connected scar for a disfiguring facial scar. They assigned a 10 percent evaluation effective on November 5, 2004. Following the Veteran's submission of a timely Notice of Disagreement (NOD) after the August 2005 rating decision, the RO issued a Statement of the Case (SOC) in July 2006. The Veteran did not file a timely Substantive Appeal following the July 2006 SOC. The RO's October 2006 rating decision, however, readjudicated the claim for an increased evaluation for the service- connected scar. The Veteran submitted a timely NOD, then submitted a timely Substantive Appeal after issuance of the SOC. Because the RO treated the matters as intertwined, the Board finds that both the August 2005 and October 2006 rating decisions are currently on appeal. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (even if a Veteran did not file a timely appeal, the Board may not raise a timeliness objection if VA has continuously treated the claim as if an appeal was timely filed). Also on appeal is a May 2008 RO rating decision, which denied, in pertinent part, the Veteran's claims of service connection for a low back disorder, a right hand disorder, left mandible fracture, osteoarthritis of the right elbow, osteoarthritis of the right wrist, and osteoarthritis of the hip. In connection with the pertinent issues adjudicated in the May 2008 rating decision, the Veteran testified in a hearing before the RO's Decision Review Officer (DRO) in April 2009. The issues of service connection for a low back disorder and a right hand disorder and whether new and material evidence had been submitted to reopen the claims of service connection for a left mandible fracture, osteoarthritis of the right elbow, osteoarthritis of the right wrist and osteoarthritis of the hip, are addressed in the REMAND portion of this document and are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issues herein decided has been accomplished. 2. The service-connected disfiguring facial scar is not shown to have been manifested by more than one characteristic of disfigurement. 3. The service-connected scar, left side of face, is not shown to have been manifested by more than a superficial scar that was painful on examination. CONCLUSIONS OF LAW 1. The criteria for the assignment of an increased evaluation in excess of 10 percent for the service-connected disfiguring facial scar are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.118, including Diagnostic Code 7800 (2009). 2. The criteria for the assignment of an increased evaluation in excess of 10 percent for the service-connected scar, left side of face, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.118, including Diagnostic Code 7804 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003). VCAA and its implementing regulations provide that, upon the submission of a substantially complete application for benefits, VA has an enhanced duty to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present case, considering the duties imposed by VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the increased rating claims decided hereinbelow has been accomplished. In an April 2005 letter, the RO advised the Veteran that to establish entitlement to an increased rating for a service- connected disability, the evidence must show that the condition has become worse The April 2005 letter also advised the Veteran that VA is responsible for getting relevant records held by any Federal agency, to include service records, Social Security Administration (SSA) records, and records from VA and other Government agencies; that he must provide enough information about the records to allow VA to request them; and that it was his responsibility to make sure VA received the records. The RO sent the Veteran a letter in April 2009 advising him of the fourth Dingess element. The RO has not specifically advised the Veteran of the fifth Dingess elements (effective date pertaining to the disability). However, the Board's action herein denies an increased evaluation, so no effective date will result from the Board's action. As the Veteran has not identified or demonstrated that any potential errors are prejudicial, the Board finds that any arguable lack of full preadjudication notice in this appeal has not, in any way, prejudiced the Veteran. See Shinseki v. Sanders, 07-1209 slip op. at 11-12 (April 21, 2009). The Board also finds that there is no indication whatsoever that any additional action is needed to comply with the duty to assist the Veteran in connection with the claims herein decided. First, the Veteran's service treatment record (STR) is on file, and the claims file contains medical records from those VA and non-VA medical providers that the Veteran identified as having relevant records. Neither the Veteran nor his representative has identified, and the file does not otherwise indicate, that any other VA or non-VA medical providers have additional pertinent records that should be obtained before the appeal is adjudicated by the Board. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (clarifying that VA's duty to assist applies only to records relevant to a Veteran's present claim). Second, the Veteran was afforded a VA examination in May 2005 for the purpose of evaluating the severity of his service- connected scar. The Board finds that the VA examination is adequate because, as shown below, it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because it describes the disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Generally, a veteran is entitled to a new VA examination where there is evidence (including his statements) that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). A remand for a new VA examination is not required solely because of the passage of time since an otherwise adequate examination report was prepared. VAOPGCPREC 11-95 (1995). Here, the Veteran has not asserted, and the evidence does not show, that his symptoms have undergone a material change since the May 2005 VA evaluation. In fact, the claims file contains extensive VA treatment records, but they are silent for any complaints related to the service-connected scar, which supports a conclusion that the service-connected symptoms have not increased in severity since the May 2005 VA examination. The Board accordingly finds no reason to remand for further examination. Finally, the Veteran has been advised of his entitlement to a hearing before the RO and before the Board in conjunction with the issues herein decided, but he has not requested such a hearing. For these reasons, the Board finds that all necessary facts have been properly developed in regard to the Veteran's claim, and no further assistance is required in order to comply with VA's statutory duty to assist in the development of evidence necessary to substantiate the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In conclusion, because all duties to notify and assist have been satisfied, the Board will proceed with consideration of the merits of the appeal. II. Analysis The Veteran is contending that a higher evaluation is warranted for the service-connected scar. For sake of clarity, the Board points out that the RO has assigned separate compensable evaluations for the service- connected facial scar. In the August 2005 rating decision, they assigned a 10 percent evaluation on the basis that the service-connected scar was painful on examination. Then, the RO, in the October 2006 rating decision, assigned a separate 10 percent evaluation on the basis that the scar was manifested by an elevated surface contour. The RO found that this represented a different functional disability from the painful aspect of the scar. The combined evaluation for the service-connected scar is 20 percent. See 38 C.F.R. § 4.25. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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). A claimant, however, may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration that different ratings may be warranted for different time periods during the period of appellate review (beginning within one year of his November 2004 claim). Evaluations of the scars on the head, neck, or face, such as the Veteran's service-connected scar, are assigned under the provisions of 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7803, 7804, and 7805. The schedular criteria are as follows: Under Diagnostic Code 7800, effective from August 30, 2002, eight "characteristics of disfigurement" are set forth for evaluation purposes. These consist of: (1) a scar of five or more inches (13 or more cm.) in length; (2) a scar of at least one-quarter inch (0.6 cm.) wide at the widest part; (3) surface contour of the scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). A minimum 10 percent evaluation is assigned for scars of the head, face, or neck with one characteristic of disfigurement. A 30 percent evaluation is assigned in cases of visible or palpable tissue loss and either gross distortion or asymmetry of one feature or a paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with two or three characteristics of disfigurement. A 50 percent evaluation is assigned for in cases of 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. The maximum evaluation, 80 percent, is assigned in cases of 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. Under Diagnostic Code 7803, a maximum evaluation of 10 percent is assigned in cases of superficial and unstable scars. A "superficial" scar is one not associated with underlying soft tissue damage, whereas an "unstable" scar is one where, for any reason, there is frequent loss of covering of the skin over the scar. Under Diagnostic Code 7804, a maximum evaluation of 10 percent is warranted in cases of superficial scars that are painful on examination. (Under this section, a 10 percent evaluation 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 evaluation.) See 38 C.F.R. § 4.68 (addressing VA's amputation rule). Also, under Diagnostic Code 7805, other scars may be limited on the basis of limitation of function of the affected part. The Board notes that revised provisions for evaluating scars were enacted effective October 23, 2008. The new regulation provides that the revised provisions are applicable only to claims received on or after October 23, 2008. Accordingly, the revisions do not apply in the present case. 73 Fed. Reg. 54708 (Sept. 23. 2008). Rather, the Veteran's claim will be considered solely under the criteria effective as of the date of his November 2004 claim. The pertinent evidence during the appellate period showing the severity of the service-connected facial scar first consists of a May 2005 statement from the Veteran. He wrote that his scar had become tender, with swelling and occasional redness (discoloration). Later in May 2005, the Veteran underwent a VA skin examination. As part of the examination, the VA examiner noted the Veteran's history to include in-service facial trauma. The VA examiner further noted the Veteran's current complaints of jaw and teeth problems. On physical examination, the VA examiner found that the scar was painful upon examination. The scar was 1-inch in length; the surface contour had minimal elevation; the scar was not adherent to underlying tissue or unstable; the scar color was the same as the skin color; the skin texture was smooth; there was no underlying soft tissue damage inflammation, edema, or keloid formation; and the skin was not indurated and inflexible. The examiner also found that disfigurement was not an issue and there was no facial symmetry distortion. Based on the results of the examination, the VA examiner diagnosed healed, old, post-laceration scar, left sided mandibular area. Also pertinent, the record includes a June 2007 handwritten note from a VA physician, who wrote that the Veteran had a 5 cm [approximately 2 inches] scar on his left jaw due to an in-service assault. The record on appeal otherwise includes VA outpatient treatment records from May 2004 to April 2009. They show no complaints or treatment for the service-connected scar. In comparing the Veteran's symptoms during the appellate period, as noted, to the rating criteria, the Board finds that the service-connected scar does not warrant an evaluation in excess of the currently assigned 20 percent combined evaluation. In order to warranted the next higher evaluation, 30 percent, the evidence would need to show visible or palpable tissue loss and either gross distortion or asymmetry of one feature or a paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with two or three characteristics of disfigurement. See 38 C.F.R. § 4.118, DC 7800. The May 2005 VA examiner found no tissue loss, gross distortion, or asymmetry of one feature or a paired set of features. The VA examination shows that the scar is manifested by one characteristic of disfigurement (surface contour of the scar elevated or depressed on palpation), but otherwise, the VA examiner, consistent with the June 2007 VA note, found that the scar is less than 5 inches in length. There is no evidence that it is at least one-quarter inch (0.6 cm.) wide at the widest part; has scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Accordingly, there is no evidence of two or three characteristics of disfigurement, as required for a 30 percent evaluation. See id. Evaluations are also not warranted under DC 7803 or DC 7805, because there is no evidence showing that the service- connected scar is unstable or involves limitation of function of the affected part. See id. In fact, the May 2005 VA examiner specifically found that the scar was not unstable. Although the VA examiner noted the Veteran's complaints of jaw and teeth problems, the Veteran filed a separate claim of service connection for jaw and teeth problems due to the in- service facial trauma. The claim was denied in the August 2005 rating decision. (The Veteran's petition to reopen the claim is addressed in the remand portion of this decision herein below.) The Board has carefully considered the Veteran's lay assertions, as indicated by his May 2005 statement. As a layperson, he is competent to report his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The Board finds that his assertions are consistent with the currently assigned 20 percent combined evaluation. To the extent he wrote that he has occasional redness, this is not consisted with skin hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.), which is included as a characteristic of disfigurement. See 38 C.F.R. § 4.118, DC 7800. The May 2005 VA examiner found no permanent skin discoloration. "Staged ratings" are not warranted because the schedular criteria for a higher rating were not met at any time during the period under appellate review. See Hart, 21 Vet. App. at 505; Fenderson, 12 Vet. App. at 126-27. The Board's findings above are based on schedular evaluation. To afford justice in exceptional situations, an extraschedular rating may also be provided. 38 C.F.R. § 3.321(b). Here, however, referral for extraschedular consideration is not warranted. First, the applicable rating criteria reasonably describe the Veteran's disability level and symptomatology. Furthermore, the evidence does not show marked interference with employment in excess of that contemplated by the rating schedule, frequent periods of hospitalization, or other evidence that would render impractical the application of the regular schedular standards. Although the Veteran has been unemployed and has been hospitalized, the medical evidence, including the extensive VA treatment records, shows that the primary precipitants of his unemployability and hospitalizations were a psychiatric disorder and his orthopedic disabilities, including a lumbar spine disorder. For these reasons, the Board is not required to remand the Veteran's claim for consideration of extraschedular ratings under 38 C.F.R. § 3.321(b)(1). See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Bagwell v. Brown, 9 Vet. App. 337, 338- 39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In conclusion, the Board finds that an increased evaluation for the service-connected facial scar is not warranted. Accordingly, the claims must be denied. ORDER An increased evaluation in excess of 10 percent for the service-connected disfiguring facial scar is denied. An increased evaluation in excess of 10 percent for the service-connected scar, left side of face, is denied. REMAND With regard to the claims of service connection for a low back disorder and a right hand disorder, plus the issues of whether new and material evidence has been submitted to reopen the previously denied claims of service connection for a left mandible fracture, osteoarthritis of the right elbow, osteoarthritis of the right wrist, and osteoarthritis of the hip, remand is necessary for issuance of an SOC. As indicated, the RO issued a rating decision denying the claims in May 2008. In May 2008, the RO received a correspondence from the Veteran labeled "Notice of Disagreement," indicating that he disagreed with the May 2008 rating decision. The claims file does not show that the RO then issued a SOC addressing the issues being remanded. (In July 2009, the RO issued a rating decision granting compensation for erectile dysfunction and depression, which claimed disorders were also addressed in the May 2008 rating decision.) When a claimant has filed an NOD and there is no SOC on file for those issues, the Board must remand, not refer, the issues to the RO for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995); Archbold v. Brown, 9 Vet. App. 124 (1996). Because the present Veteran filed an NOD disagreeing with the RO's May 2008 rating decision, but there is no SOC on file, a remand is required in order to comply with due process requirements. See Manlincon, 12 Vet. App. at 240- 241. The Board points out that the May 2008 rating decision, consistent with the Veteran's lay assertions, adjudicated the issue of service connection for a low back disorder on a direct basis. (The Veteran contends that he has a current low back disorder due to in-service parachute jumps.) The RO also issued a rating decision and SOC addressing the Veteran's claim for compensation under 38 U.S.C.A. § 1151 for nerve root injuries in both lower extremities, which included evidence relating to symptoms of a low back disorder. The RO's July 2009 SOC, however, did not address the Veteran's claim of service connection for a low back disorder on a direct basis. Therefore, the claim of service connection for a low back disorder on a direct basis remains in appellate status and requires issuance of an SOC. See, e.g., Tyrues v. Shinseki, 23 Vet. App. 166, 176 (2009). Following issuance of an SOC on the remanded matters, RO should return the claim to the Board only if the Veteran perfects his appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); see also In re Fee Agreement of Cox, 10 Vet. App. 361, 374 (1997) (holding that if the claims file does not contain a notice of disagreement, a statement of the case, and a substantive appeal the Board is not required, and in fact has no authority, to decide the claim). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008). However, identification of the specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with VCAA. Hence, in addition to the actions requested above, the RO should undertake any other development and provide any further notification deemed warranted by VCAA prior to readjudicating the remanded claim. Accordingly, the case is REMANDED for the following action: 1. After completing any initial development deemed warranted based upon a review of the entire record, the RO must take the appropriate steps to issue the Veteran a Statement of the Case (SOC) addressing the issues of service connection for a low back disorder and a right hand disorder, plus the issues of whether new and material evidence has been submitted to reopen the previously denied claims of service connection for a left mandible fracture, osteoarthritis of the right elbow, osteoarthritis of the right wrist, and osteoarthritis of the hip. This SOC must include all relevant laws and regulations, and a complete description of the Veteran's rights and responsibilities in perfecting an appeal in these matters. Thereafter, if the Veteran files a timely Substantive Appeal on any of the remanded issues, the RO should undertake any indicated development and adjudicate the claim(s) in light of the entire evidentiary record, and then issue a Supplemental Statement of the Case (SSOC), if appropriate. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the remanded matters, but need take no further action unless otherwise notified. Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). 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. 2009). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs