Citation Nr: 1016771 Decision Date: 05/05/10 Archive Date: 05/19/10 DOCKET NO. 05-02 802 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an increase in the staged ratings for scar residuals of a left thigh shrapnel wound (currently assigned ratings of 0 percent prior to September 29, 2009, and 10 percent from that date). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1964 to November 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision by the Newark, New Jersey Department of Veterans Affairs (VA) Regional Office (RO) that continued a 0 percent rating for residuals of a left thigh shrapnel wound. In September 2005 a Travel Board hearing was held before the undersigned. A transcript of that hearing is associated with the claims file. In October 2006 and June 2009 this matter was remanded for further development. A January 2010 rating decision assigned a 10 percent rating for residuals of a left thigh shrapnel wound, effective September 29, 2009. The issue is characterized to reflect that "staged" ratings are assigned, and that both "stages" are on appeal. FINDINGS OF FACT 1. Prior to September 29, 2009, the Veteran's scar residuals of a left thigh shrapnel wound were not shown to be painful on objective demonstration, or unstable; associated limitation of function was not shown. 2. From September 29, 2009, the scar residuals of a left thigh shrapnel wound are not shown to have caused any limitation of function. CONCLUSIONS OF LAW Prior to September 29, 2009 a compensable rating is not warranted for the Veteran's left thigh shrapnel wound scar residuals; from that date a rating in excess of 10 percent is not warranted for the scar residuals. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.118, Codes 7803, 7804, 7805 (as in effect for claims filed prior to October 23, 2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 C.F.R. § 3.159(b)(1) (including as amended effective May 30, 2008, 73 Fed. Reg. 23353 (Apr. 30, 2008)). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F 3d. 1328 (Fed. Cir. 2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). A June 2008 letter provided such notice and the claim was thereafter adjudicated. See January 2010 supplemental statement of the case. Regarding VA's duty to assist, all available pertinent medical evidence identified by the Veteran has been obtained. He was afforded VA examinations in October 2003 and in September 2009. As will be discussed in greater detail below, those examinations were adequate for rating purposes. VA's duty to assist the Veteran is met. B. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Notably, where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings may be appropriate in an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). "Staged" ratings have been assigned by the RO, and, as noted, both "stages" are under consideration. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. The Board notes that the criteria for rating skin disability were revised, effective October 23, 2008. 73 Fed. Reg. 54,708 (Sept. 23, 2008). The announcement of the final regulation specifically states that the new criteria apply "to all applications for benefits received by VA on or after October 23, 2008" and that a Veteran rated under the skin criteria in effect prior to that date may request review under the revised criteria. As neither the Veteran nor his representative has requested such review, and his claim was received prior to October 23, 2008, the revised criteria are not for consideration. Under the criteria previously in effect, scars, other than those on the head, face, or neck, are rated under 38 C.F.R. § 4.118, Codes 7801-7805. Rating the residuals of the left thigh shrapnel wound scar under either Code 7801 or 7802 would be inappropriate as the scar is not deep (associated with underlying tissue damage) and does not cause limitation of motion; it is not shown to involve an area of 144 square inches. Hence, these Codes will not be addressed further. A 10 percent (maximum) rating is authorized for superficial, unstable scars. 38 C.F.R. § 4.118, Code 7803. A note following this code provides that an unstable scar is one where, for any reason, there is frequent loss of covering of the skin over the scar. Under Code 7804, a 10 percent (maximum) rating is authorized for a superficial scar that are painful on examination. 38 C.F.R. § 4.118. Notes following Codes 7803 and 7804 provide that a superficial scar is one not associated with underlying soft tissue damage. Code 7805 provides that other scars will be rated on limitation of motion of the affected part. 38 C.F.R. § 4.118. A March 1996 rating decision granted the Veteran service connection for "residuals of shrapnel wound to the left thigh", rated 0 percent. It was noted that while his service treatment records did not show such injury (or related treatment), he had been awarded a Purple Heart Medal. On October 1995 VA examination it was noted that the Veteran had complained of a slight loss of sensation in the area of his left thigh scar. Examination found a 1 cm. scar 5 cms. above he superior pole of the left patella. The scar was not hypertrophied or painful to touch. There was no sensory abnormality. There was no knee joint involvement. There was no underlying muscle defect. Clinical examination was considered normal. The instant claim for increase was received in September 2003. On October 2003 VA examination (report in Volume I of the claims file), the Veteran reported that he took Motrin 200mg t.i.d. for pain. Physical examination revealed a 1.8 cm. scar above the patella and a 2.5 cm. scar over the tibial tubercle below the knee. The left knee exhibited no swelling or tenderness, crepitus or effusion. Range of motion of the knee was from 3 degrees of extension to 136 degrees of flexion without pain. The examiner noted that there was no sequelae from shrapnel wound noted, and stated: "Said the left knee area aches and he attributes this to the shrapnel wounds. He takes the Motrin regularly for this. This seems unlikely to me as the wounds appear both superficial and quite small, and is hard for me to believe that the small amount of shrapnel and the superficial nature of the wounds that I see have cause[d] him any continuing problems. No shrapnel is seen on X-ray. Certainly no irritation of his knee or the knee area was found on my examination. Such an irritation would be expected if he had such ongoing pain." VA treatment records from June 2002 to July 2008 do not show any specific treatment for shrapnel wound residuals. They note that the Veteran was receiving pain medication for headaches associated with status post brain tumor removal surgery. On September 2009 VA examination, the Veteran reported increasing pain in the region of the left quadriceps. He reported he took gabapentin 600mg t.i.d., and oxycodone 5/325 every four hours as needed for severe pain. He was no longer employed as he was retired. Physical examination revealed a 1 cm. wide; 0.5 cm. long scar that was painful; there was no sign of skin breakdown; the scar was superficial; there was no inflammation, edema, or keloid formation. The examiner noted that the scar did not produce any disabling effects. Status post shrapnel injury with residually painful scar as described in region of left distal quadriceps was diagnosed. X-ray of the left femur showed no fracture; there were degenerative changes noted to the knee. The examiner reviewed the claims file and stated that "the Veteran uses gabapentin and oxycodone/acetaminophen for residual pain for his left thigh region shrapnel wound residuals." At the outset, the Board notes that it has considered whether the Veteran's service connected left thigh shell fragment wound residual disability might warrant rating as muscle injury. Upon review of the evidentiary record, including the initial examination for this disability in October 1995 (when it was noted that there was no underlying muscle defect), the Board finds that no significant muscle injury is shown, and that rating this disability under the muscle rating criteria would be inappropriate. (In that regard, it is also noteworthy that X-rays of the area on more recent examination were not reported to show any retained foreign bodies.) For the period prior to September 29, 2009, the Board has considered whether there is any schedular basis for granting a compensable rating for the Veteran's service- connected left thigh shrapnel wound scar residuals, but has found none. In particular, there is no medical evidence that a scar was deep, unstable, or painful. See Codes 7803 and 7804. Furthermore, there was no other evidence of pain or related limitation of function. While the Veteran reported on October 2003 examination there he regularly needed to take Motrin for associated underlying pain, the examiner opined that such was unlikely given the minimal findings on objective examination. Given those findings (and the examiner's explanation), the Board finds the examiner's opinion in this matter more probative than the Veteran's self-serving accounts. Therefore, a rating under Code 7805 would be inappropriate. From September 29, 2009, the focus is on whether a rating in excess of 10 percent is warranted. Notably, Codes 7803 and 7804 do not provide ratings higher then the currently assigned 10 percent rating, so consideration is limited to Code 7805, and whether the left thigh shrapnel wound residual scars cause any associate compensable limitation of function. As no such limitation has been found (the September 2009 VA examiner specifically noted there were no other disabling effects), rating under Code 7805 would not be appropriate, therefore a rating in excess of 10 percent from September 29, 2009 is not warranted. Extraschedular consideration: The Board has also considered whether the claim warrants referral for extraschedular consideration. Inasmuch as it is not shown that the shrapnel would residuals scar causes any manifestations/functional limitations not encompassed by the schedular criteria, those criteria may not be found inadequate, and referral for extraschedular consideration is not indicated. See 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). Finally, the Veteran has been awarded a total disability rating based on individual unemployability (TDIU). Consequently, the matter of entitlement to such rating is not raised by the record. ORDER Ratings in excess of 0 percent prior to September 29, 2009 and 10 percent rating from that date for left thigh shrapnel wound scar residuals are denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs